Citation Nr: 21014623 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 17-53 257 DATE: March 15, 2021 ORDER Entitlement to service connection for bilateral hearing loss is dismissed. REMANDED Entitlement to service connection for concussions(s) is remanded. FINDING OF FACT In March 2021, prior to the promulgation of a decision on the issue of entitlement to service connection for bilateral hearing loss, the Veteran withdrew his appeal. CONCLUSION OF LAW The criteria for withdrawal of the Veteran’s appealed claim for service connection for bilateral hearing loss have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 19.55 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1968 to March 1977. The issues come before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing in March 2021 before the undersigned Veterans Law Judge (VLJ). 1. Entitlement to service connection for bilateral hearing loss is dismissed. 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 (2012). A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 19.22, 19.55 (2015). Withdrawal may be made by the Veteran or by his authorized representative. 38 C.F.R. § 19.55 (2019). At his March 2021 hearing before the Board, the Veteran withdrew his appeal as to the issue of service connection for bilateral hearing loss. The Veteran’s statement indicating his intention to withdraw the appeal as to this issue, once transcribed as a part of the record of his hearing, satisfies the requirements for the withdrawal of a substantive appeal. See Tomlin v. Brown, 5 Vet. App. 355 (1993). It was explained to him that the appeal would be dismissed, and that if he wished to seek service connection for hearing loss in the future, he would have to file a new claim, and that if benefits were awarded in the future, his effective date could be impacted. The Veteran has withdrawn this appeal and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. REASONS FOR REMAND 1. Entitlement to service connection for concussion(s) is remanded. The Veteran contends that he has concussion disabilities that were incurred in service and continued. During his March 2021 hearing, he testified that while serving in Vietnam, a hand grenade exploded behind him in the mess hall, and he lost consciousness. When he regained consciousness, he was very dizzy, could not stand, was very confused. He was told the next day to get treatment, but he was still experiencing confusion. During a visit to the flight surgeon, he was told that he was permanently removed from flight status and reassigned to the motor pool. Still, then, he felt confused, lost track of time, had problems functioning. Somehow, he ended up back in the United States and he remembered not how he got there, but that he visited his parents. The Veteran also testified that he was assigned to several other positions of decreasing skill level because he could not do the jobs and ended up cleaning fuel bladders and was exposed to toxic chemicals, which made him dizzy and caused blackouts. He went to the corpsman and was sent back to work. His headaches, dizziness, and confusion have continued since then. Also, of record is a medical treatment record revealing that the Veteran’s January 2014 complaints of vomiting, loss of appetite, and mental cloudiness since a December 2013 fall on the ice, where he hit his head. The Veteran has continuously held that he has residuals of concussions that are related to service. During the March 2021 hearing, the representative described the Veteran’s symptoms of his concussions as confusion, cognitive issues, and anger outbursts. Based on the evidence presented above, including the credible hearing testimony, the Board finds that the low threshold of McLendon is met. McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). Thus, a remand is warranted for a VA examination to ascertain whether he had concussions and determine whether the claimed concussions are due to his service. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the matters are REMANDED for the following action: 1. Provide the Veteran’s claim file to a qualified clinician so that an examination may be provided addressing the etiology of the Veteran’s concussions. The entire claims file and a copy of this remand must be made available to the examiner for review. A physical examination of the Veteran or telehealth examination is only required if deemed necessary by the clinician. The Board calls the examiner’s attention to the following: a. The January 2014 reported vomiting, loss of appetite, and mental cloudiness since a December 2013 fall on the ice and hitting his head. b. The October 2017 dated Form 9, wherein the Veteran attributes his concussions to injuries sustained in the handheld grenade blast in service. c. The Veteran’s March 2021 hearing testimony. The examiner must provide an opinion as to: a. Whether the Veteran has a current disability manifested by residuals of concussions, to include confusion, cognitive issues, and anger outbursts. b. If the Veteran has a disability manifested by residuals of concussions, determine whether it is at least as likely as not (50 percent or greater probability) that the disability began during active service; or is related to any incident of service. For this remand only, and for the limited purpose of providing a medical opinion, the clinician should assume that the lay statements are true, including the in-service grenade explosion in the mess hall and the continuity of symptomology since. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above-requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such a conclusion. 2. Then, readjudicate the claim. If any decision is adverse to the Veteran, issue a supplemental statement of the case, and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Stevens, 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.