Citation Nr: 21076151 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 18-00 631 DATE: December 22, 2021 ORDER Entitlement to an increased rating for tinnitus has been withdrawn. Entitlement to service connection for left ear hearing loss is granted. REMANDED Entitlement to a disability rating in excess of 40 percent for arthritis of the lumbar spine is remanded. Entitlement to an increased rating for now service-connected bilateral hearing loss is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to promulgation of a decision by the Board, the Veteran withdrew his appeal for an increased disability rating for tinnitus. 2. Resolving reasonable doubt in the Veteran's favor, his left ear hearing loss is at least as likely as not related to his active duty service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to an increased rating for tinnitus by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for service connection for left ear hearing loss are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1975 until June 1979. The Veteran also served on active duty in the United States Air Force from February 1991 until July 1991 and received an honorable discharge. In December 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. This decision is being prepared under the Board's "one touch" hearing program; a copy of the transcript of that hearing will be added to the Veteran's file in the normal course of business. Entitlement to an increased rating for tinnitus The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the Appellant or by his or her authorized representative. Id. At the December 2021 hearing, the Veteran said he wished to withdraw the appeal as to the increased rating for tinnitus, prior to the promulgation of a Board decision on the matter. He specifically stated his intention to withdraw the claim and that he understood the consequences of doing so. Thus, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal regarding the issue of increased rating for tinnitus and it is dismissed Entitlement to service connection for left ear hearing loss The Veteran asserts that he has left ear hearing loss resulting from in-service exposure to hazardous noise. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Veteran underwent a VA hearing loss examination in July 2016 which showed sensorineural hearing loss bilaterally. The Veteran has current hearing loss in the left ear for VA compensation purposes. 38 C.F.R. § 3.385. The Veteran's DD Form 214 reflects that his military occupational specialty (MOS) while on active duty in the Army was cannon crewmember. In-service noise exposure has been conceded and service connection was previously granted for right ear hearing loss. The record includes a negative opinion offered by a July 2016 VA examiner. The Board affords that opinion limited probative value because it was based, in large part, on the absence of in-service evidence of hearing loss. The Board finds that the credible evidence is at least in equipoise. The Veteran currently has a bilateral hearing loss disability as defined by 38 C.F.R. § 3.385 and noise exposure during service. Affording the Veteran the benefit of the doubt, service connection for left ear hearing loss is granted. REASONS FOR REMAND Entitlement to a disability rating in excess of 40 percent for arthritis of the lumbar spine. The claim must be remanded for a current examination. The Veteran testified at the hearing that his disability has worsened since the last examination in 2017. He testified that he experiences neurological symptoms including tingling and numbness in his feet. The examination on remand should assess the current nature and severity of his back disability, including any neurological manifestations and the approximate onset date. Entitlement to an increased rating for the now service-connected bilateral hearing loss. The claim is remanded to obtain a current examination. The Veteran testified that his hearing loss had worsened since the last examination in 2016. Given the grant of service connection for left ear hearing loss in this decision, the issue is remand is the rating for the now should be bilateral hearing loss. He also testified that he experiences some anxiety related to his hearing loss. The opinion on remand should identify whether he has a separately diagnosed disability and if so, whether it is related to the service-connected hearing loss. Entitlement to TDIU At the December 2021 Board hearing, the Veteran testified that he stopped working three years ago due to service-connected disabilities. Until that time, he was employed as an electrical designer for commercial buildings. The issue of entitlement to a TDIU has been reasonably raised by the record and is before the Board. Rice v. Shinseki, 22 Vet. App. 447 (2009). The issue of TDIU is inextricably intertwined with the issues of increased rating for various service-connected disabilities. Additionally, the Veteran testified that he receives disability benefits from the Social Security Administration (SSA). However, SSA records have not been obtained. On remand, those records should be obtained. The matters are REMANDED for the following action: 1. Take all appropriate action to obtain the Veteran's federal records from the Social Security Administration. Document all requests for information as well as all responses in the claims file. 2. Provide the Veteran with a VA Form 21-8940, Application for TDIU and request that he submit the completed form, with all appropriate information. Thereafter, take all appropriate action on the TDIU claim. 3. After completion of the above, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected back disability. The examiner must complete the corresponding VA disability benefits questionnaire (DBQ), provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must specifically identify any related neurological manifestations. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Additionally, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral hearing loss. The examiner must complete the corresponding VA DBQ. 5. Schedule the Veteran for an examination with an appropriate examiner to determine the nature and likely etiology of any diagnosed psychiatric disability. Copies of all pertinent records must be made available to the examiner for review. The examiner must answer the following: (a) Identify any currently diagnosed psychiatric disabilities. (b) Is it at least as likely as not that any currently diagnosed psychiatric disability is (i) caused by or (ii) aggravated by (defined as any increase in disability) the service-connected hearing loss? A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge; the examiner's own expertise, or; whether additional facts are required and note what, if any, additional evidence would permit such an opinion to be made. 6. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of TDIU. If necessary, return the case to the Board for further appellate review. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Collins, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.