Citation Nr: 21029805 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 18-47 664 DATE: May 17, 2021 ORDER Entitlement to service connection for left knee condition has been withdrawn. Entitlement to service connection for right knee condition has been withdrawn. REMANDED Entitlement to service connection for a back condition is remanded. Entitlement to service connection for bilateral hearing loss disability is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. During a February 2022 video hearing, the appellant requested that the withdrawal of this appeal for his claim to service connection for a right knee condition. 2. During a February 2022 video hearing, the appellant requested that the withdrawal of this appeal for his claim to service connection for a left knee condition. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to service connection for left knee condition by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of entitlement to service connection for right knee condition by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1948 until May 1952. This matter comes to the Board of Veterans' Appeals (Board) on appeal from the April 2016 and January 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge during a video conference hearing in February 2021. Service Connection 1. Entitlement to service connection for left knee condition 2. Entitlement to service connection for right knee condition 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55.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, during a February 2022 video hearing, the Veteran indicated that it was his desire to have the above issues on appeal before the Board withdrawn; hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the above issues on appeal and they are dismissed. REASONS FOR REMAND 1. Entitlement to service connection for a back condition is remanded. The Veteran was afforded a VA examination regarding his claimed condition in January 2017. The examiner opined that the Veteran's degenerative arthritis of the spine is less likely than not to have been incurred while in service, and/or cause by or aggravated by any service-connected disability. The examiner noted the Veteran's in-service treatment for a back injury, to include a diagnosis for Myositis, rheumatoid, did not result in a current diagnosis of any defined muscle disability of the back. The examiner went on to state that the Veteran's in-service condition is not related to his current back condition. However, the examiner failed to provide a rationale explaining why there is not etiological connection between the Veteran's inservice injuries and his current degenerative condition of the back. A close review of the VA opinion notes extensively why the Veteran does not currently have a muscle condition, such as a diagnosis for Myositis, but does not actually speak to a rationale as to why his inservice diagnosis could not have cause his current disability. Additionally, the examiner does not discuss any lay assertion from the Veteran with regards his inservice injuries, to include his reported sports injuries during service play baseball and basketball, that has progressed since service. Consequently, the Board finds that such renders this VA examination inadequate and incomplete, and remand is required for the VA to fulfill its duty to the Veteran. 2. Entitlement to service connection for bilateral hearing loss disability is remanded. 3. Entitlement to service connection for tinnitus is remanded. The Veteran was afforded a VA examination regarding his claimed conditions in April 2016. The examiner opined that the Veteran's bilateral hearing loss is less likely than not to have been incurred while in service, and/or cause by or aggravated by any service-connected disability. The examiner further noted that the Veteran's tinnitus is at least likely as not associated to his bilateral hearing loss disability. The examiner's opinion was based, in part, due to a lack of in-service medical treatment. In explaining the medical opinion provided, the examiner simply noted the lack of in-service audiograms and post-military occupation. An examination is deemed to be inadequate where the examiner relies on the absence of evidence of disability in the service treatment records and does not account for competent lay testimony as to continuity of symptoms, to provide a negative opinion. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 n. 1 (Fed. Cir. 2006) (finding VA's examiner's opinion flawed because it relied solely on the absence of contemporaneous medical evidence). Thus, the Board finds that the April 2016 VA examination report is inadequate. As such, the Board finds that a supplemental examination and opinion is necessary prior to adjudicating the issues on appeal. The matters are REMANDED for the following action: 1. Obtain supplemental examination and opinion from an appropriate clinician regarding entitlement to service connection for a back condition. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. The examiner is requested to opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current back condition began in service, was caused by service, or is otherwise related to service. Any opinion provided must be accompanied with an adequate rationale discussing the Veteran's lay statements, conflicting back diagnoses, and the Veteran's in-service injury/treatment. 2. Obtain supplemental examination and opinion from an appropriate clinician regarding entitlement to service connection for a bilateral hearing loss disability and tinnitus. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. The examiner is requested to opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current hearing loss condition and/or tinnitus began in service, was caused by service, or is otherwise related to service. Any opinion provided must be accompanied with an adequate rationale discussing the Veteran's competent lay statements. Any opinion provided may not rely solely on the lack of in-service audiograms and/or treatment for hearing impairment. Zi-Heng Zhu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brandon A. Williams, 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.