Citation Nr: 21021545 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 18-10 074 DATE: April 13, 2021 ORDER Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) has been withdrawn. REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. FINDING OF FACT In November 2020, the parties filed a Joint Motion for Partial Remand (JMPR) that included a statement from the Veteran’s authorized representative indicating that the Veteran no longer wishes to pursue his appeal concerning entitlement to service connection for a psychiatric disorder, to include post-traumatic stress disorder (PTSD). CONCLUSION OF LAW The criteria for withdrawal of entitlement to service connection for a psychiatric disorder, to include post-traumatic stress disorder (PTSD) by the Veteran’s authorized representative have been met. 38 U.S.C. § 7105; 38 C.F.R. § 9.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1949 to October 1952, to include verified service in Korea. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a September 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his spouse testified at an October 2019 videoconference hearing before the undersigned Veterans Law Judge. A transcript of that Board hearing is associated with the evidence of record. In a January 2020 decision, the Board reopened the Veteran’s claim for entitlement to service connection for bilateral hearing loss because the testimony provided at the October 2019 hearing was new and material. However, the Board denied the Veteran’s claim for entitlement to service connection for bilateral hearing loss. The Veteran appealed the January 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). In November 2020, the parties filed a Joint Motion for Partial Remand (JMPR) moving for vacatur of the January 2020 decision’s denial of entitlement to service connection for bilateral hearing loss. Within the JMPR, the Veteran withdrew his claim for entitlement to service connection for post- traumatic stress disorder (PTSD) and requested that the Court dismiss this claim. On November 30, 2020, the Court issued an Order granting the JMPR and remanding the matter to the Board for further development and proceedings pursuant to 38 U.S.C. § 7252(a). 1. Entitlement to service connection for a psychiatric disorder, to include post-traumatic stress disorder (PTSD) 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. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran through his authorized representative has withdrawn his claim for service connection for a psychiatric disorder, to include post-traumatic stress disorder (PTSD). The Veteran withdrew his claim in the November 2020 JMPR which is reflected in the April 2021 “transcript of oral arguments.” Thus, there remains no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the PTSD claim and it is dismissed. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral hearing loss disability is remanded. The Veteran is claiming entitlement to service connection for a bilateral hearing loss disability, as due to exposure to acoustic trauma during service. The evidence of record reflects the Veteran has a current bilateral hearing loss disability as defined by VA regulation. See 38 C.F.R. § 3.385. At his October 2019 videoconference hearing before the Board, the Veteran testified he was exposed to acoustic trauma during service from artillery fire and explosive shells. He also indicated he was an engineer during service, which involved blowing up/demolition of bridges, and was often in close proximity to the explosions. He testified that he did not use any hearing protection during service. The Veteran stated he did not receive a separation physical, despite the fact that the record contains an October 1952 exit examination report. He further indicated that following his active duty service he was not exposed to any traumatic noise that would have caused his hearing loss. The Veteran was unable to give a time frame as to when he began noticing his hearing loss; however, following questioning from his representative the Veteran agreed that it was within a relatively short time span after separation from active duty, as he would often ask others to repeat themselves. The Veteran’s service personnel records reflect he received, among other decorations, a Bronze Star Medal and the Korean Service Medal with six campaign stars. The Board finds the Veteran’s statements regarding the acoustic trauma he was exposed to during service (arms fire, explosions) to be consistent with his duties and service; therefore, the Board acknowledges this exposure. See 38 U.S.C. § 1154(b). In the November 2020 JMPR, the parties agreed that the August 2012 VA opinion, which the Board relied on in denying the Veteran’s claim, was inadequate because the examiner failed to consider all of the relevant history. The examiner opined that the Veteran’s bilateral hearing loss was not related to service because post-service medical records failed to reveal any hearing loss complaints until 2004. The examiner noted that the Veteran was first seen in 1999, and his doctor reported he had “no acute complaints,” but neither hearing loss or tinnitus were mentioned. The examiner overlooked the December 1999 VA medical record that noted, “hearing diminished slightly” during an examination of the Veteran’s head, ears, eyes, nose, and throat. The VA has the duty to make reasonable efforts to assist a claimant in securing evidence necessary to substantiate their claim for VA benefits. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The duty to assist was not met when the VA failed to obtain an adequate VA medical opinion for the Veteran’s bilateral hearing loss. The case law is clear that once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, he must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The parties agreed that the Veteran must be provided a well-reasoned medical opinion that considers all relevant records and addresses whether the Veteran’s current bilateral hearing loss is related to his active service. Based on the foregoing, the Board must remand the appeal for compliance with the JMPR and the Court’s Order. In addition, since the claims file is being returned it should be updated with any new or outstanding medical treatment records. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). The Board notes that in August 2020, the Veteran contended that his private treatment records for his PTSD claim which has been withdrawn were not obtained. While these records no longer need to be secured, because of the claim being withdrawn, the Board directs the AOJ to assist the Veteran in obtaining any private treatment records for his bilateral hearing loss condition that may help substantiate his claim. The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the evidence of record before the Board. 2. With any necessary assistance from the Veteran, obtain any relevant outstanding private treatment records. 3. After the development above, if possible, return the Veteran’s complete record, to include a copy of this remand, and the claims folder to the VA examiner who reviewed the file and provided the August 2012 medical opinion, hereinafter “examiner,” for an addendum opinion. If it is not possible to obtain clarification from the examiner, then forward the Veteran’s claim file and a copy of this remand to another appropriate medical professional who has the requisite experience to render the requested medical opinion. The examiner must specifically note on the report whether such files were reviewed in connection with this addendum opinion. No examination of the Veteran is necessary unless the examiner deems otherwise. 4. Provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that bilateral hearing loss had its onset in active service or is otherwise causally or etiologically related to the Veteran’s active service. 5. In rendering the opinion, the medical examiner should address the significance of any in-service or post-service noise exposure and should explain why the Veteran’s current bilateral hearing loss is or is not merely a delayed response to in-service exposure to radio noise, artillery and other gunfire. The examiner should note and address the Veteran’s contention that his hearing loss occurred shortly after service. The examiner should also note and address that the December 1999 VA medical record noted, “hearing diminished slightly” during an examination of the Veteran’s head, ears, eyes, nose, and throat. 6. A complete rationale must be provided for any opinion or conclusion expressed. The clinician must note that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). If the examiner is unable to provide any requested opinion, he or she must provide a thorough explanation. 7. The AOJ must review this opinion to ensure it is adequate and complies with the Board’s specific remand directives herein. If deficient in any manner, corrective action must be taken at once. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that AOJ compliance with Board remand directives is not discretionary or optional). 8. After completing the above, and conducting any further development deemed necessary, readjudicate the claim. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Quist 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.