Citation Nr: 1527488 Decision Date: 06/26/15 Archive Date: 07/07/15 DOCKET NO. 14-06 861A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to a rating in excess of 50 percent for bilateral pes planus. 4. Entitlement to a total disability due to individual unemployability (TDIU). REPRESENTATION Appellant represented by: Karen Y. Vicks, Attorney ATTORNEY FOR THE BOARD A. Budd, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1972 to May 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision as to bilateral hearing loss and tinnitus, and an October 2014 rating decision as to a rating in excess of 30 percent for bilateral pes planus. The rating decisions were issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware. A May 2015 statement of the case (SOC) denied a rating in excess of 50 percent for bilateral pes planus. The claim for a TDIU is part and parcel with the claim for a rating in excess of 50 percent for bilateral pes planus. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The issues of entitlement to a rating in excess of 50 percent for bilateral pes planus and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the agency of original jurisdiction (AOJ). FINDINGS OF FACT 1. On February 18, 2015, following certification of the appeal to the Board, but prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of his claim of service connection for bilateral hearing loss is requested. 2. The Veteran's tinnitus is at least as likely as not caused by active service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2014). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Bilateral Hearing Loss 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.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran submitted a Form 9 after the appeal had been certified indicating that he only wished to appeal tinnitus, and specifically stating, "I am not in contention for bilateral hearing loss because I've learned to live with that [in] the 30 [plus] years of separation from the Navy." Hence, there remain no allegations of error of fact or law for appellate consideration as to that matter. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. As to tinnitus, the Board is granting the claim before it in full. Accordingly, any error committed with respect to either the duty to notify or the duty to assist is harmless and will not be further discussed. Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection on a direct-incurrence basis, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises, and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection for certain diseases, including organic diseases of the nervous system such as tinnitus, may be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 259 (2015). Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). The Federal Circuit Court recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Facts and Analysis The Veteran's military occupational specialty (MOS) was administrative specialist and clerk, which is not an MOS where acoustic trauma is typically conceded. The Veteran contends that he experienced acoustic trauma in that he served on a ship where loud battle guns were fired. The record contains a November 2013 lay statement from a fellow service member who stated that he served with the Veteran from June 1973 through June 1975 performing duties within the supply department onboard the USS Mitscher. He asserted that many times he and the Veteran were caught "outside of the skin of the ship during live gun and missile fire," and that the loud sound of these weapons "produced a concussion to the ears that would last for days on end." He recollected that many times he and the Veteran asked one another to speak up while onboard because they could hardly hear. The Veteran also submitted a January 2013 statement in which he stated that he experienced acoustic trauma in that the ship on which he served was always in battle readiness and training, meaning that they were constantly firing the weapons. He found this interesting, so he and others of the crew would watch these guns firing. He asserted that he has had a constant ringing in his ear since being discharged, but that he thought it was normal. Although the Veteran's MOS is not one for which acoustic trauma is typical, his report of hearing guns fire while on deck and the lay statement of his fellow service member that hearing the guns fire while on deck caused a "concussion to the ears" are indicative of acoustic trauma. The Veteran and his fellow service member are competent to report having heard the loud noise of gunfire, as such is achieved through the normal senses. Further, the statements of the Veteran and his fellow service member are consistent with the Veteran's military service onboard ship, as documented on his DD Form 214. As such, the Board finds them to be credible. Therefore, the Board allows the Veteran the benefit of the doubt and finds that it is at least as likely as not that the Veteran experienced acoustic trauma in service. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran asserts that he has experienced ringing in his ears since service. The Veteran's service treatment records (STRs) do not indicate that he sought treatment for tinnitus in service, and a report of medical history was not obtained upon separation from service. The Veteran has submitted several lay statements from members of his family stating that he has complained of ringing in his ears after discharge. Although there is a single January 2014 notation in a general review of systems prior to a right knee menesectomy in the Veteran's VA treatment records indicating that the Veteran does not have tinnitus, his VA treatment records also contain an audiological notation in January 2014 and a telephone contact note in November 2013 indicating that the Veteran does complain of tinnitus. The Board finds the audiological and telephone contact notes to be more probative than the general review of systems prior to a menesectomy as they are more concentrated on the Veteran's audiological complaints. The Veteran, as a lay person, is competent to diagnose tinnitus as it is achieved through the senses of a lay person. Charles v. Principi, 16 Vet. App. 370 (2002). A layperson is also competent to testify as to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). The Board notes that tinnitus may be subject to service connection based upon continuity of symptomatology as an "organic disease of the nervous system" under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 259 (2015). As the record does not contain contradictory testimony as to the onset of the Veteran's tinnitus, the Board finds no reason to dispute the Veteran's credibility on that issue. Considering the evidence of record, and affording the Veteran the benefit of the doubt, the Board finds it is at least as likely as not that the Veteran's tinnitus was incurred in service. See Walker, supra. Service connection for tinnitus is, therefore, granted. See 38 U.S.C.A § 5107 (West 2002). ORDER The appeal for entitlement to service connection for bilateral hearing loss is dismissed. Entitlement to service connection for tinnitus is granted. (CONTINUED ON NEXT PAGE) REMAND In May 2015, the Veteran submitted a Form 9 perfecting his appeal as to entitlement to a rating in excess of 50 percent for bilateral pes planus and entitlement to a TDIU. In this Form 9, he requested a hearing by video teleconference at the Wilmington Regional Office. Considerations of due process mandate that the Board may not proceed with review of the claims on appeal without providing the Veteran an opportunity for the requested hearing. Therefore, a remand is required in this case. See 38 U.S.C.A. § 7107(b); 38 C.F.R. § 20.700(a). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a videoconference hearing before the Board to be held at the Wilmington Regional Office. The RO should notify the Veteran of the date and time of the hearing. See 38 C.F.R. § 20.704(b). After the hearing, the claims file should be returned to the Board in accordance with current appellate procedures. The appellant has the right to submit additional evidence and argument on the matters 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs