Citation Nr: 21025353 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 16-23 593 DATE: April 27, 2021 ORDER The issue of entitlement to non-service-connected pension has been withdrawn. REMANDED The issue of entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT In February 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran through counsel that a withdrawal of his appeal for non-service-connected pension is requested. CONCLUSION OF LAW The criteria for withdrawal of entitlement to non-service-connected pension by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1988 to October 1992. The case was remanded in December 2018 for evidentiary development and for a new medical examination and opinion. In January 2019, March 2019 and June 2019 correspondences, the Veteran, through his then-authorized representative, attempted to withdraw his claim of service connection bilateral hearing loss at the regional office (RO) after the Board’s December 2018 remand. Since then, the RO scheduled, and the Veteran attended, the August 2020 VA medical examination. Given that the RO has also issued a supplemental statement of the case (SSOC), and the Veteran has not submitted a withdrawal of the issue since re-certification to the Board, the Board will continue adjudicating the Veteran’s claim of entitlement to service connection for bilateral hearing loss. 1. Entitlement to non-service-connected pension The Board may dismiss any claim that fails to allege a specific error of fact or law in the decision being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all of the issues on appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the veteran or by his or her authorized representative. Id. The Veteran, through his then-authorized representative, requested the withdrawal of his claim for non-service-connected pension in a February 2021 correspondence submitted after the issuance of the September 2020 SSOC. Thus, there are no allegations of errors of fact or law for appellate consideration as to this issue. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. REASONS FOR REMAND 1. The issue of service connection for bilateral hearing loss is remanded. The matters are REMANDED for the following action: 1. BACKGROUND FOR RO ADJUDICATOR: The August 2020 VA examination and opinion are not adequate for the Board’s review because: a) The August 2020 VA examiner diagnosed the Veteran with bilateral sensorineural hearing loss, but also found that the Veteran did not demonstrate left ear hearing loss. She then noted the Veteran’s left ear hearing loss was caused by or the result of military service, but in her rationale for her opinion indicated the Veteran’s left ear hearing loss was less likely than not the result of the Veteran’s military noise exposure. These conflicting opinions and rationales require clarification. b) Although the examiner noted in the “Evidence Comments” section that the Veteran reported exposure to hazardous noise during service, the examiner’s rationale indicates she considered the Veteran’s military occupational specialty (MOS) as having a low probability of hazardous noise exposure and did not address the Veteran’s lay statements nor his personnel records that indicate the Veteran was “routinely exposed to hazardous noise” during service. Furthermore, the Board found that the Veteran was exposed to acoustic trauma during service in its February 2017 Remand. Therefore, the examiner must opine as to whether the Veteran’s current diagnoses were incurred in service, to include as due to the RECOGNIZED acoustic trauma. c) The examiner did not address the in-service significant threshold shift (STS) between the Veteran’s November 1990 audiogram and his September 1992 separation audiogram that showed a STS at 4000 Hz in his left ear when she opined the Veteran did not demonstrate decreased hearing acuity during service. This medical finding must also be addressed in her subsequent opinion. The remand directives follow. 2. Return the claims file to the August 2020 VA examiner and request she re-review the claims file and respond to the inquiries below. If the examiner is not available, arrange for another appropriate VA examiner to provide an addendum medical opinion to assist in determining the relationship between the Veteran’s current bilateral sensorineural hearing loss diagnosis and his service. All appropriate tests, studies and consultations should be accomplished, including a new medical examination if necessary, and all clinical findings should be reported in detail in the narrative portion of the examination report. A rationale should be given for all opinions and conclusions rendered. Based upon a review of the relevant evidence of record, history provided by the Veteran, and sound medical principles, the VA examiner should provide the following opinions: a) Does the Veteran demonstrate left and/or right ear hearing loss for VA purposes? b) Were any of the Veteran’s current hearing loss diagnoses incurred in service or caused by an in-service injury, event, or illness, to include acoustic trauma previously recognized? c) Did the Veteran demonstrate a significant threshold shift (STS) in his left ear during service? If so, what is the significance of this STS with regards to his contention that his current hearing loss disability was due to his recognized acoustic trauma? The examiner must review the entire record in conjunction with rendering the requested opinions. IN ADDITION TO ANY RECORDS THAT ARE GENERATED BECAUSE OF THIS REMAND, the VA examiner’s attention is drawn to the following: * August 1988 audiogram results at entrance to service. See “STR – Medical,” received October 30, 1992, page 98 of 103. * In April 1989 the Veteran complained of bilateral ear pain. He was assessed with irritation. See “Medical Treatment Record – Government Facility,” received June 23, 2014, 2 pages. * November 1990 audiogram results that include remarks that the Veteran was “routinely exposed to hazardous noise.” See “STR – Medical,” received October 30, 1992, page 9 of 23. * September 1992 audiogram results compared to November 1990 audiogram results that show a 15 dB change in the Veteran’s left ear at 4000 Hz. See “STR – Medical,” received October 30, 1992, page 52 of 103. * September 1992 report of medical history when the Veteran appears to have changed his selection to the question of whether he currently has hearing loss. See Id. at page 42 of 103. * July 2013 VA treatment records indicate the Veteran was diagnosed with normal hearing between 250-6000 Hz with moderate sensorineural hearing loss at 8000 Hz in his right ear, and normal hearing between 250-6000 Hz with mild sensorineural hearing loss in his left ear. See “CAPRI,” received June 17, 2014, pages 57-8 of 200. * July 2014 VA treatment records indicate the Veteran continued to demonstrate the same results as in July 2013. See “CAPRI,” received April 18, 2016, page 255 of 256. * January 2017 VA treatment records indicate the Veteran demonstrated normal hearing through 4000 Hz in his right ear, with a mild-to-moderately-severe hearing loss above 4000 Hz. The Veteran’s left ear demonstrated normal hearing through 6000 Hz, with moderate hearing loss at 8000 Hz. See “CAPRI,” received March 10, 2017, page 32 of 806. * In February 2017 the Board found that the Veteran was exposed to acoustic trauma during service. See “BVA Decision,” received February 3, 2017. * April 2017 VA medical examination report and opinion. The examiner opined the Veteran did not demonstrate bilateral hearing loss for VA purposes even though clinical findings suggest otherwise, and did not provide a rationale for this conflicting opinion. The examiner also noted the Veteran demonstrated STS but did not indicate the significance of this finding. The examiner also opined the Veteran demonstrated tinnitus secondary to in-service noise exposure. The examiner noted the Veteran’s MOS as a Motor Transport Operator had a “moderate” probability for hazardous noise exposure. See “C&P Exam,” received April 17, 2017. * August 2020 VA medical examination report and opinion. The examiner diagnosed the Veteran with bilateral sensorineural hearing loss. With regards to the right ear, she opined the Veteran’s disability was less likely than not the result of military noise exposure. With regards to the left year, the examiner indicated the Veteran’s left year hearing loss was caused by or the result of an even in military service; then stated the Veteran did not demonstrate hearing loss for VA purposes; and then opined the Veteran’s left ear hearing loss was less likely than not the result of military noise exposure. See “C&P Exam,” received September 1, 2020. A thorough explanation must be provided for the opinion rendered. If the examiner cannot provide the requested opinion without resorting to speculation, s/he should expressly indicate this and provide supporting rationale as to why the opinion cannot be made without resorting to speculation. The examiner should schedule a new examination only if necessary to provide an adequate opinion. THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED, AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THE EXAMINATION/OPINION SUFFICIENT. 3. Following the review and any additional development deemed necessary, readjudicate the claim. Should the claim not be granted in its entirety, issue an appropriate supplemental statement of the case (SSOC) and forward the claim to the Board for adjudication. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2014). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Anwar, Attorney-Advisor 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.