Citation Nr: 21005863 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 15-41 921 DATE: February 2, 2021 ORDER Entitlement to service connection for hepatitis C has been withdrawn. REMANDED Entitlement to service connection for hearing loss is remanded. FINDING OF FACT Prior to the promulgation of a decision in the appeal, at his June 2020 hearing, the Veteran withdrew his appeal of entitlement to service connection for hepatitis C. CONCLUSION OF LAW The criteria for withdrawal of entitlement to service connection for hepatitis C by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1982 to May 1995. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2020, the Veteran testified at a hearing before the undersigned. Entitlement to service connection for hepatitis C 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran withdrew his appeal of entitlement to service connection for hepatitis C during the June 2020 hearing. The Veteran’s full understanding of the consequences of the withdrawal is evident because he affirmatively asked for this issue to be dismissed, and he stated that he understood that, by withdrawing the issue, he would not maintain the effective date for his claim, and that, to reopen that claim, he would have to submit new and material evidence. Thus, the Board finds the Veteran has explicitly, unambiguously, and with a full understanding of the consequences, withdrawn the issues of entitlement to service connection for hepatitis C. See Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). There is no remaining allegation of error of fact or law for appellate consideration regarding this issue. Therefore, the Board does not have jurisdiction to review this issue, and it is dismissed. REASONS FOR REMAND Entitlement to service connection for hearing loss is remanded. The Veteran was afforded a VA audiological examination in June 2014. At that time, the Veteran’s right ear hearing loss did not meet the level of disability defined in 38 C.F.R. § 3.385. However, at the June 2020 Board hearing, the Veteran stated that his hearing has worsened since his last VA examination. Accordingly, a new VA examination is warranted to determine if the Veteran has a current right ear hearing loss disability. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). As to the Veteran’s left ear hearing loss, the Board finds the June 2014 VA examination to be insufficient because the examiner’s rationale is based on the fact that there is no report or complaint of hearing loss in the Veteran’s service treatment records (STRs). However, the Veteran’s STRs in the claims file do not appear to be complete and the RO has certified that all avenues to obtain additional STRs have been exhausted and that further efforts to obtain additional STRs would be futile. Thus, it is not possible to know if the Veteran’s apparently missing STRs are silent as to any hearing loss complaints. Thus, remand for new VA examination is warranted. The Board also notes that, in cases where service records are unavailable, VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit of the doubt rule. Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Moreover, the absence of hearing loss disability (as defined by 38 C.F.R. § 3.385) in service is not in and of itself fatal to a claim of service connection for hearing loss disability. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). This matter is REMANDED for the following action: Arrange an examination, preferably with a qualified clinician who has not previously examined the Veteran, regarding the Veteran’s claim for service connection for hearing loss. After review of the claims file and examination of the Veteran, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that his current hearing loss disability began in or is otherwise related to his service. In providing the requested opinion, the examiner must address the significance or insignificance of any threshold shifts in the Veteran’s hearing acuity between the induction and separation examinations. The examiner should also address any other pertinent evidence of record. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Elias, 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.