Citation Nr: 21024786 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 17-55 367 DATE: April 26, 2021 ORDER As the claim is withdrawn, the claim of entitlement to an initial compensable rating for bilateral hearing loss disability is dismissed. REMANDED Entitlement to service connection for colon cancer is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a lumbar spine disability, to include degenerative arthritis of the thoracolumbar spine, is remanded. Entitlement to service connection for coronary artery disease (CAD) is remanded. Entitlement to service connection for a left hip disability, to include total arthroplasty, is remanded. Entitlement to service connection for a right hip disability, to include total arthroplasty, is remanded. FINDING OF FACT On November 24, 2020, prior to the promulgation of a decision in the appeal, the Veteran notified the Board at his hearing on appeal that he sought to withdraw his claim of entitlement to an initial compensable rating for bilateral hearing loss disability. CONCLUSION OF LAW The criteria for withdrawal of the claim of entitlement to an initial compensable rating for bilateral hearing loss disability by the Veteran have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1966 to October 1968. This appeal comes before the Board of Veterans’ Appeals (Board) from a July 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. Dismissal Entitlement to an initial compensable rating for bilateral hearing loss disability 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. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55.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 the present case, the Veteran (appellant) notified the undersigned VLJ at the November 24, 2020, hearing on appeal that he sought to withdraw his appeal for the claim of entitlement to an initial compensable rating for bilateral hearing loss disability. This request was clear, unambiguous and made with full understanding of the consequences and in consultation with his representative. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see also Acree v O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Hence, there remains no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of this matter and it is dismissed. REASONS FOR REMAND 1. Entitlement to service connection for colon cancer is remanded. 2. Entitlement to service connection for hypertension is remanded. 3. Entitlement to service connection for a lumbar spine disability, to include degenerative arthritis of the thoracolumbar spine, is remanded. 4. Entitlement to service connection for CAD is remanded. 5. Entitlement to service connection for a left hip disability, to include total arthroplasty, is remanded. 6. Entitlement to service connection for a right hip disability, to include total arthroplasty, is remanded. Issues 1-6. The Veteran, and his representative, contends that service connection is warranted for his disabilities. For his colon cancer, the Veteran argues that it is related to in-service exposure to trichlorethylene. For his hypertension, the Veteran maintains that it had its onset during service and shortly following service he was diagnosed and prescribed medication. For his lumbar spine disability, the Veteran contends that it is related to an in-service fall and an in-service injury, described as loading and unloading ammunition. For his CAD, the Veteran maintains that it is secondary to his hypertension. For his bilateral hip disability, the Veteran argues that it is secondary to his lumbar spine disability. For reasons explained below, the Board finds that remand is necessary. First, the Board takes notice that the record indicates that there may be outstanding relevant VA treatment records. VA treatment records were last obtained by VA in July 2017, about four years ago, and the record shows that the Veteran has been consistently receiving VA treatment for his disabilities. Additionally, the record reveals that there may be outstanding VA treatment records from VA Medical Center (VAMC) Bonham, Texas, and from VAMC Sherman, Texas, dating back from the 1980s. See Congressionals (November 2020) & VA Form 21-0820 (October 2016). The representative, in this instance, argues that these records are relevant in the sense that they will show chronicity and continuity of care for the Veteran’s disabilities. Thus, as any complaint or treatment, as related to his claims, with VA is relevant in determining the Veteran’s claims for service connection, remand is necessary to associate any outstanding VA treatment record with the claims file. See 38 U.S.C. § 5103A(c); 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that documents which are generated by VA agents or employees are in constructive possession of VA, and as such, should be obtained and included in the record). Next, the Board observes that, in November 2020, the Veteran’s representative submitted a Social Security Administration (SSA) notification letter. In this regard, the letter indicates that the Veteran may have been receiving SSA disability benefits. Although the letter does not provide the disability or disabilities that the benefit was awarded for, the representative submitted it for the purpose to have the letter to be associated with the claims file. Thus, there may be potentially relevant SSA records outstanding. As there is no indication that the agency of original jurisdiction (AOJ) has attempted to retrieve copies of these documents, the Board finds that the AOJ must make appropriate attempts to obtain the records. Further, the Board notes that these records are considered federal records for duty to assist purposes. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); see also Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009). Indeed, 38 C.F.R. § 3.159(c) explicitly lists the SSA as an agency from which VA is required to obtain relevant records. Thus, given the above, the Board finds that remand is necessary for further development of the claims. Shoffner v. Principi, 16 Vet. App. 208, 213 (2002) (Board has discretion below as to how much development is required). Accordingly, any adjudication of the claims at this juncture is unreasonable given the appearance of an incomplete record. Brambley v. Principi, 17 Vet. App. 20 (2003). In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. The matters are REMANDED for the following actions: 1. Request all documents pertaining to any application by the Veteran for SSA disability benefits, including the medical records considered in deciding the claim. If any requested records are unavailable, the Veteran and his representative should be notified of such. 2. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for signs or symptoms of his colon cancer, hypertension, lumbar spine disability, CAD, and bilateral hip disability, to include from Texas Oncology, Texoma Medical Center, and TexomaCare. . Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 3. Obtain all VA treatment records dated from July 2017 to the Present. Additionally, obtain all VA treatment records, prior to June 2004, from VAMC Bonham, Texas, and from VAMC Sherman, Texas, to include those dating back to the 1980s. 4. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Griffey, 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.