Citation Nr: 21014525 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 14-40 950A DATE: March 12, 2021 ORDER The appeal seeking entitlement to service connection for migraines is dismissed REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include depression, is remanded. Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT On October 8, 2019, prior to the issuance of the Supplemental Statement of the Case (SSOC) and prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran indicating his intent to withdraw the appeal regarding service connection for migraines. CONCLUSION OF LAW The criteria for withdrawal of entitlement to a service connection for migraines 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 in the United States Navy from September 1961 to September 1965. In January 2019, the Board previously remanded the issues on appeal. During the pending appeal, in a February 2020 rating decision, the Regional Office (RO) granted service connection for coronary artery disease (heart disorder) and diabetes mellitus, type II. In January 2021, the RO also granted service connection for a right leg scar (skin disorder). As these grants of service connection represent a full grant of the benefits sought, these issues are no longer on appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). 1. Entitlement to service connection for migraines. The Board emphasizes that any appeal which fails to allege specific error of fact or law in the determination being appealed may be dismissed.  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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. §19.55. Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. §19.55. In October 2019, the Veteran submitted a signed statement that he intended to withdraw the appeal for service connection for migraine headaches. This statement clearly and unambiguously indicates his intent to withdrawal this issue on appeal. The Federal Circuit has not addressed the criteria as to a written request to withdraw a claim. See Acree v. O’Rourke, 891 F.3d 1009, 1013, n. 2 (Fed. Cir. 2018). Likewise, the Board has no basis to question the validity of the withdrawal or the Veteran’s understanding of the consequences of withdrawing the appeal. Cf. Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Thus, as there remains no allegation of error of fact or law for appellate consideration, the Board does not have jurisdiction to review the appeal of this issue and it is dismissed. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include depression, is remanded. The Veteran is seeking service connection for depression. The Veteran contends that his depression is related to his MOS as a medic, which required removing injured from combat zones as part of a helicopter crew. To that end, the Veteran was afforded the February 2020 VA examination to determine the nature and etiology of the Veteran’s claimed psychiatric disability. The VA examiner found that the Veteran suffered from mild depression, which the VA examiner also opined was related to the Veteran’s active service. However, the Board finds the February 2020 VA examination report to be inadequate, as the rationale provided is contradictory to the opinion proffered. The VA examiner acknowledged that the Veteran does not have a documented history of depression in the medical record. The VA examiner found that the Veteran’s subjective reports and the examination indicated mild depression. The VA examiner failed to provide any justification for her medical opinion. Moreover, the Board notes that the Veteran although competent to report his symptoms, he is not competent to opine to the etiology of his depression. The VA examiner was asked to provide clarification to the February 2020 VA medical opinion. The August 2020 VA addendum opinion only provided that the Veteran private medical records indicate that the Veteran received a prescription of Sertraline as early as June 2011. The VA examiner did not provide any further rationale and the information provided does not provide clarification regarding the question of etiology. As such, the Board finds remand is warranted for further medical guidance to address the etiology of the Veteran’s psychiatric disability. 2. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran also contends that his bilateral hearing loss is related to his active naval service. The Veteran asserts that he was exposed to hazardous noise from helicopters, heard explosions from the bombing range behind his barracks, and spent time at the fire ranging during his active service time that contributed to his current hearing loss. The Veteran was afforded a February 2020 VA examination to determine the etiology of his bilateral hearing loss. The VA examiner found that bilateral hearing loss was unrelated to the Veteran’s active naval service. The VA examiner, however, based her medical opinion primarily on the absence of hearing loss during service. She did note that hearing does not worsen following cessation of a given noise, however, did not provide any further medical justification or support for her medical opinion. As such, the Board finds the February 2020 VA examination to be inadequate for rating purposes and an additional VA medical opinion is needed to address the etiology of the Veteran’s bilateral hearing loss. The matters are REMANDED for the following actions: 1. Obtain a VA medical opinion from an appropriate examiner to determine whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s psychiatric disability is related to his active naval service. Whether an examination is needed prior to rendering this opinion is left to the discretion of the examiner. The examiner is advised that the Veteran is competent to report his symptoms/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. 2. Obtain a VA medical opinion from an appropriate examiner to determine whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s bilateral hearing loss is related to his active service, to include his in-service noise exposure serving as a member of helicopter medical evacuation crew, going to the firing range, and hearing explosions from the bombing range. Whether an examination is needed prior to rendering this opinion is left to the discretion of the examiner. (Continued on the next page)   The examiner is advised that the Veteran is competent to report his symptoms/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. PAUL E. METZNER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Higgins, Jeffery 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.