Citation Nr: 1112973 Decision Date: 04/01/11 Archive Date: 04/13/11 DOCKET NO. 09-31 994 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION The Veteran served on active duty from July 1978 to July 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In February 2011, a videoconference hearing was held before the undersigned Veterans Law Judge. A transcript from this hearing is of record. FINDINGS OF FACT 1. Tinnitus had its onset in service. 2. In January 2011, prior to the promulgation of a decision in the current appeal, the Veteran asked that his claim for entitlement to service connection for hearing loss be withdrawn from appellate review. CONCLUSIONS OF LAW 1. Resolving all doubt in the Veteran's favor, tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2010). 2. The criteria for the withdrawal of the Substantive Appeal with respect to service connection for hearing loss have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants service connection for tinnitus, which represents a complete grant of the benefit on appeal. As such, no discussion of VA's duty to notify and assist is necessary. The Veteran is seeking to establish service connection for tinnitus. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact- finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604(Fed.Cir.1996). The Veteran contends that his tinnitus is due to noise exposure experienced during his 20 years of military service. Service treatment records are silent for any complaints or findings of tinnitus. The Veteran's DD 214 shows military occupational specialties of microwave systems operator and armor crewman, which is consistent with his report of in-service acoustic trauma. At the Veteran's November 2008 VA audiological examination, he reported ringing in his ears since 1995. The examiner diagnosed bilateral tinnitus but opined that the etiology was unknown as there is no high frequency hearing loss or absent otoacoustic emissions that would indicate inner ear damage due to noise exposure. At the Veteran's hearing, he testified that he was exposed to excessive noise in service from tank weaponry, firing mortars, missiles, and driving different types of combat vehicles from tanks to APC personnel carriers to two and a half to five ton trucks. He also testified that the ringing in his ears started in the service and has continued since that time. As noted above, the Board acknowledges that the Veteran's in-service duties and military occupational specialties exposed him to noise over a long period of time. Given the evidence, including the Veteran's documented military occupational specialties and acknowledged in-service noise exposure, his credible account of tinnitus and his report that it began during and persisted since, and the November 2008 VA examination findings, resolving all reasonable doubt in the Veteran's favor, concludes that his tinnitus had its onset in service. Withdrawn Claim The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.101. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal, which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. At the January 2011 hearing, the Veteran expressed an intent to withdraw the issue of entitlement to service connection for hearing loss. The Board clarified on the hearing record that it was the Veteran's intent to withdraw this issue and the Veteran acknowledged the same. Thus, the Board finds that the Veteran knowingly and voluntarily waived his right to pursue an appeal of that issue. See Evans v. Shinseki, No. 08-2133 (U.S. Vet. App. Jan. 28, 2011). The Board further notes that such withdrawal was reduced to writing when the hearing testimony was transcribed, pursuant to 38 C.F.R. § 20.204. Thus, there remains no allegation of error of fact or law for appellate consideration on this claim. Accordingly, the Board does not have jurisdiction to consider an appeal in this matter. ORDER Service connection for tinnitus is granted. The claim of entitlement to service connection for hearing loss is dismissed. ____________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs