Citation Nr: 1127014 Decision Date: 07/20/11 Archive Date: 07/29/11 DOCKET NO. 09-15 736 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for residuals of anemia. 4. Entitlement to service connection for toenail fungus. 5. Entitlement to service connection for residuals of a right Achilles tendon injury. 6. Entitlement to service connection for residuals of a left Achilles tendon injury. 7. Entitlement to service connection for residuals of an upper back injury. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Donna D. Ebaugh INTRODUCTION The Veteran served on active duty from February 1964 to February 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the RO in Portland, Oregon. In March 2011, the Veteran testified at a hearing the RO before the undersigned. A transcript of the hearing is of record. The issue of entitlement to service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. On March 24, 2011, which was prior to the promulgation of a decision in the current appeal, the Veteran asked that his claims for entitlement to service connection for residuals of anemia, toenail fungus, the residuals of right and left Achilles tendon injuries, and the residuals of a upper back injury be withdrawn from appellate review. 2. The Veteran's tinnitus had its onset in service or is otherwise shown to be etiologically related to his active service, to include noise exposure, based on continuity of symptomatology. CONCLUSIONS OF LAW 1. The criteria for the withdrawal of a Substantive Appeal with respect to the issue of entitlement to service connection for residuals of anemia have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2010). 2. The criteria for the withdrawal of a Substantive Appeal with respect to the issue of entitlement to service connection for toenail fungus have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2010). 3. The criteria for the withdrawal of a Substantive Appeal with respect to the issue of entitlement to service connection for residuals of a right Achilles tendon injury have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2010). 4. The criteria for the withdrawal of a Substantive Appeal with respect to the issue of entitlement to service connection for residuals of a left Achilles tendon injury have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2010). 5. The criteria for the withdrawal of a Substantive Appeal with respect to the issue of entitlement to service connection for an upper back injury have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2010). 6. Tinnitus was incurred in active service. 38 U.S.C.A. §§ 1110, 1154, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawn Claims A veteran may withdraw his or her appeal in writing at any time before the Board promulgates a final decision. 38 C.F.R. § 20.204 (2010). When a veteran does so, the withdrawal effectively creates a situation in which an allegation of error of fact or law no longer exists. In such an instance, the Board does not have jurisdiction to review the appeal, and a dismissal is then appropriate. 38 U.S.C.A. § 7105(d) (West 2002); 38 C.F.R. §§ 20.101, 20.202 (2010). In the present case, in a statement made to the Board at the hearing on March 24, 2011, the Veteran asked that his appeals regarding entitlement to service connection for residuals of anemia, toe fungus, residuals of right and left Achilles tendon injuries, and residuals of a back injury, be withdrawn from appellate review. Specifically, when asked whether he wished to withdraw the issues, the Veteran responded, "Yes." See Transcript (T) page 2. The Board finds that the Veteran's statement indicating his intention to withdraw the appeal, once transcribed as a part of the record of his hearing, satisfies the requirements for the withdrawal of a substantive appeal. See, e.g., Tomlin v. Brown, 5 Vet. App. 355 (1993). In view of his expressed desires, the Board concludes that further action with regard to these issues is not appropriate. The Board does not have jurisdiction over the withdrawn issues, and, as such, his appeals are dismissed. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Regarding service connection for tinnitus, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002). 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) (2010). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2010). Further, service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2010). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). In the present case, the Veteran has claimed service connection for tinnitus based on his exposure to noise in service. His DD-214 indicates that he served in an infantry unit and that he received a medal for marksmanship. The Veteran has also offered sworn testimony that his military occupational specialty was an infantryman. He further testified that he fulfilled duties including border duty, guard duty, and that he drove a 3/4 ton truck, all of which while stationed abroad with a Mechanized Infantry Battalion that was part of an Infantry Division where artilleries were firing all the time, on the post. T. pages 4-5. He also testified that he fired and qualified on the 45-caliber pistol, M-60 machine gun, M-14 rifle, 2.5 rocket launcher as well as the grenade launcher and throwing grenades. T. page 5. He testified that he was in close proximity to mechanized artillery when weaponry was discharged while he was on guard duty. T. page 6. He also testified that he was in close proximity to the firing of a 50-caliber machine gun off a track vehicle. Id. He did not wear hearing protection in service. Id. The Veteran's statements to the Board regarding exposure to noise in service and not wearing hearing protection were also consistent with his statements to the April 2011 private audiologist. Although service treatment records did not reveal complaints of noise in service, the Board finds the Veteran's sworn testimony regarding in-service noise exposure to be credible. As such, Shedden element (2) has been met and in-service noise exposure is conceded. Next, the Veteran has also offered sworn testimony that he has experienced ringing in his ears since service. T. page 4. The Board notes that the Veteran is competent to report symptoms such as ringing in his ears because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board observes that the Veteran reported to the March 2007 VA examiner that he was exposed to noise in his civilian job for 15 years and that he wore hearing protection. However, where he reported to the April 2011 private audiologist that he was exposed to significant noise exposure in service without hearing protection, he emphasized that he wore hearing protection with respect to any post-service noise exposure he may have experienced. The Board finds the Veteran's competent statements of continuity of symptomatology to be credible. The Board acknowledges that a negative nexus opinion regarding the Veteran's tinnitus is of record. Specifically, the March 2007 VA examination report contains an opinion that the Veteran's tinnitus was not at least as likely as not related to his military service. The examiner noted as pertinent evidence that the Veteran was exposed to noise for 15 years in his civilian job. No real rationale was provided. Rather, the examiner simply stated that his negative opinion was based on his experience and expertise as well as the evidence reviewed. The examiner did not address the Veteran's contentions that he has experienced ringing in his ears since service, nor did the examiner address the fact that the Veteran wore hearing protection for his civilian job. The Board places little probative value on the opinion as the examiner did not consider the Veteran's statements of continuity of symptomatology. That said, the Board finds no adequate basis to reject the competent and credible statements regarding continuity of symptomatology by the Veteran. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). Accordingly, the Board finds the evidence in equipoise and resolves doubt in the Veteran's favor. As such, service connection for tinnitus is granted. ORDER The claim for entitlement to service connection for residuals of anemia is dismissed without prejudice. The claim for entitlement to service connection for toenail fungus is dismissed without prejudice. The claim for entitlement to service connection for residuals of a right Achilles tendon injury is dismissed without prejudice. The claim for entitlement to service connection for residuals of a left Achilles tendon injury is dismissed without prejudice. The claim for entitlement to service connection for residuals of an upper back injury is dismissed without prejudice. Service connection for tinnitus is granted. REMAND Regarding the claim for service connection for bilateral hearing loss, a remand is required. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(c), (d) (2010). In the present case, the Veteran underwent a VA audiological examination in March 2007. At that time, the Veteran reported that he had been exposed to noise during in his civilian job, wherein he wore hearing protection, for 15 years. He also reported continuous hearing loss symptoms since service. The VA examiner found that he had mild hearing loss, although notably, the decibel ratings assigned to the various frequencies were not high enough to qualify as hearing loss as defined by 38 C.F.R. § 3.385 (2010). Notwithstanding the lack of a hearing loss disability for VA purposes, the VA examiner offered a negative nexus opinion. Since the March 2007 VA examination, the Veteran underwent a private audiological examination in April 2011. At that time, the private audiologist diagnosed sloping, mild to moderate hearing loss in both ears and opined that the Veteran would benefit from the use of hearing aids. The private audiologist did not offer an opinion regarding a nexus to service although he did indicate the Veteran's self-report of noise exposure in service. The private audiologist's report also included an uninterpreted audiogram. As the results are pertinent to the Veteran's claim - indeed, they may show that the Veteran has a current diagnosis of bilateral hearing loss as prescribed by 38 C.F.R. § 3.385 - interpretation of the audiogram should be obtained. Therefore, upon receipt of the proper authorization and consent form, the private audiologist should be contacted to interpret the April 2011 audiogram and provide specific decibel ratings for the frequencies tested. In light of the possibility that the Veteran may have a current disability of bilateral hearing loss, for VA purposes, the VA examiner should clarify any rationale for his opinion. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes to the probative value to a medical opinion). VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2010). Moreover, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In the present case, the VA examiner simply stated that his opinion was based on his experience, expertise, and a review of the evidence. On Remand, the examiner should specify particular reasons specific to the facts of the present case, for his nexus opinion. The examiner's clarification should also consider the April 2011 private audiologist's examination report and the Veteran's statements of continuity of symptomatology since service Accordingly, the case is REMANDED for the following action: 1. Upon receipt of the appropriate authorization and consent form, seek clarification from the April 2011 private audiologist regarding interpretation of the audiogram. 2. Upon receipt of the interpreted audiogram, seek clarification from the March 2007 VA examiner as detailed below. If the March 2007 VA examiner is unavailable, afford the Veteran the appropriate examination to determine the nature, extent, onset and etiology of any current bilateral hearing loss disorder. The claims folder should be made available to and reviewed by the examiner and such review should be noted in the examination report. All indicated studies should be performed and all findings should be reported in detail. The examiner (whether the March 2007 VA examiner or a new VA examiner) should render an opinion as to the nature of any current hearing loss disorder and whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed hearing loss disorder had its onset in or is otherwise etiologically related to service. The examiner must address the Veteran's report of continuity of symptomatology since service. The rationale for all opinions expressed should be provided in a legible report. If the examiner cannot provide a requested opinion without resorting to mere speculation such should be stated with supporting rationale. 3. The RO/AMC must notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2010). 4. Thereafter, the RO should re-adjudicate the issues on appeal. If any benefit sought remains denied, the Veteran and the representative should be provided with a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include the applicable law and regulations considered pertinent to the issues, as well as a summary of the evidence received since the issuance of the last SSOC. An appropriate period of time should be allowed for response. The appellant 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 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 Supp. 2010). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs