Citation Nr: 21008476 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 17-24 660 DATE: February 17, 2021 ORDER The appeal seeking entitlement to a 10 percent evaluation based on multiple, noncompensable, service-connected disabilities is dismissed. REMANDED Entitlement to an initial compensable evaluation for service-connected bilateral hearing loss is remanded. Entitlement to an initial compensable evaluation for pleural plaques (claimed as asbestosis) is remanded. REFERRED The issue of service connection for tinnitus was raised in during the December 2020 virtual Board hearing and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDING OF FACT At the December 2020 virtual Board hearing, prior to the promulgation of a decision in the appeal, it was stated that the Veteran wished to withdraw the issue of entitlement to a 10 percent evaluation based on multiple, noncompensable, service-connected disabilities. CONCLUSION OF LAW The criteria for withdrawal in the matter of entitlement to a 10 percent evaluation based on multiple, noncompensable, service-connected disabilities by the Veteran have been met. 38 U.S.C. §§ 7104, 7105(d)(5); 38 C.F.R. §§ 20.101, 20.202, 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1954 to September 1957. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran appeared for a virtual Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. 1. Entitlement to a 10 percent evaluation based on multiple, noncompensable, service - connected disabilities. The Board has jurisdiction when there is a question of law or fact on appeal to the Secretary. 38 U.S.C. § 7104; 38 C.F.R. § 20.101. Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn at any time before the Board promulgates a decision, either in writing or on the record at a hearing. Withdrawal may be made by the Veteran or by his authorized representative. See 38 C.F.R. § 20.204. At the December 2020 virtual hearing, prior to the promulgation of a decision by the Board, the Veteran, through his representative, indicated on the record that he was withdrawing the appeal of entitlement to a 10 percent evaluation based on multiple, noncompensable, service - connected disabilities. When a claim is withdrawn orally at a hearing, the withdrawal must be “explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.” DeLisio v. Shinseki, 25 Vet. App. 45 (2011). At the hearing, the undersigned VLJ explained the legal significance of withdrawal of a claim on appeal. The Veteran was asked in the presence of his representative whether he agreed to withdraw the claim for a 10 percent evaluation based on multiple service – connected disabilities and he responded in the affirmative. The Board finds that Veteran’s response confirming his agreement to withdraw the claim was explicit, unambiguous, and done with a full understanding of the consequences of such action. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see 38 C.F.R. § 20.204. Hence, there remain no allegations of errors of fact or law for appellate consideration with respect to this claim. Under these circumstances, the issue of entitlement to a 10 percent evaluation based on multiple service–connected disabilities, is no longer within the Board’s jurisdiction and is dismissed. See Hamilton v. Brown, 4 Vet. App. 528 (1993) (en banc), aff’d, 39 F.3d 1574 (Fed. Cir. 1994). REASONS FOR REMAND 1. Entitlement to an initial compensable evaluation for service - connected bilateral hearing loss is remanded. The Veteran contends that his hearing loss is more severe than reflected by the initial non–compensable rating assigned. In addition, during the December 2020 virtual hearing the Veteran and his wife testified that his hearing loss had worsened during the appeals period. The Veteran submitted a November 2020 private audiological examination which suggested that his hearing has deteriorated. Furthermore, the Veteran stated during his December 2020 Board hearing that he had been evaluated for his bilateral hearing loss at his local VA Medical Center (VAMC) as well as a private audiology practice. Those records have not been associated with the Veteran’s claims file. Accordingly, the Board finds that VA’s duty to assist is triggered and remand is warranted to obtain outstanding VA and private treatment records and afford the Veteran a new VA examination to evaluate the nature of his service – connected hearing loss disability. 2. Entitlement to a compensable evaluation for pleural plaques (claimed as asbestosis) is remanded. The Veteran contends that his service–connected interstitial lung disease, claimed as asbestosis, is more severe than reflected by the initial non–compensable rating assigned. In addition, during the December 2020 virtual hearing the Veteran and his wife testified that his symptoms of his lung disease to include shortness of breath, increased fatigue and increased use of inhalers had worsened during the appeals period. The Veteran stated during his December 2020 Board hearing that he had been treated for his service–connected lung disease privately at two different medical practices. Those records have not been associated with the Veteran’s claims file. Additionally, the Veteran was afforded a Respiratory Conditions VA examination in April 2016. The VA examiner opined that the Veteran’s asbestos related pleural plaques were at least as likely as not related to exposure to asbestos during active duty service. The Veteran’s military occupational specialty (MOS) in the United States Navy was boilerman and his military personnel records document that he served on ships with known asbestos. Relative to the Veteran’s pulmonary function tests (PFTs), the April 2016 VA examiner indicated that the test which most accurately reflected the Veteran’s level of disability was the FVC % predicated. The result of the Veteran’s FVC % predicted was 63.4% post-bronchodilator, which corresponds to a 60 percent rating pursuant to Diagnostic Code 6833 for Asbestosis. The examiner noted that the Veteran did not have multiple respiratory conditions. Nevertheless, the April 2016 VA examiner opined that the respiratory changes reflected by the Veteran’s PFT results were less likely than not related to the Veteran’s pleural plaques. The rationale for that opinion was that pleural plaques do not cause any changes in PFTs. The Board finds the April 2016 medical opinion relative to the rating portion of the Veteran’s service–connected lung disease only, inadequate for adjudication purposes. Specifically, the rationale is contradictory on its face. Here the Veteran has pleural plaques due to service -related asbestos exposure and no other respiratory conditions identified. There is no other basis cited for the PFT results identified, except the Veteran’s asbestos related pleural plaques and underlying lung disease. Accordingly, the Board finds that VA’s duty to assist is triggered and remand is warranted to obtain outstanding VA and private treatment records and afford the Veteran a new VA examination to evaluate the nature of his service–connected interstitial lung disease. The matters are REMANDED for the following action: 1. Contact the Veteran and his representative, and with their assistance, identify any outstanding records of pertinent medical treatment for service–connected hearing loss and lung disease disabilities from VA or private health care providers. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159 (c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. Following the records development above, obtain a VA examination and opinion from an appropriate examiner to determine the nature and severity of the Veteran’s service-connected bilateral hearing loss. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings reported in detail. 3. Obtain a VA examination and opinion from an appropriate examiner to determine the nature and severity of the Veteran’s service-connected asbestos related lung disease. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings reported in detail. (a.) In addition to a medical opinion regarding the current severity of the Veteran’s service–connected lung disability, the examiner is also asked to review the April 2016 VA examination findings and offer an opinion as to whether there is any medical basis given the facts of this claim to conclude that the results of the Veteran’s April 2016 PFTs are not related to his service – connected lung disability. Why or why not? The examiner is advised that the Veteran is competent to report his symptoms and medical history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Alexander 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.