Citation Nr: 1306852 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 10-40 027 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a low back disability. 4. Entitlement to service connection for diabetes mellitus. 5. Entitlement to service connection for glaucoma. 6. Entitlement to service connection for hypertension. 7. Entitlement to service connection for peripheral neuropathy of the upper extremities. 8. Entitlement to service connection for peripheral neuropathy of the lower extremities. 9. Entitlement to service connection for erectile dysfunction. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife. ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from July 1962 to July 1968 with service in the Republic of Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal from April 2008 and July 2008 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In May 2012, the Veteran testified before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is of record. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss had its onset during active duty service due to combat noise exposure. 2. The Veteran's tinnitus had its onset during active duty service due to combat noise exposure. 3. A chronic low back disability, diagnosed as degenerative disc disease, is etiologically related to active duty service. 4. In May 2012, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that a withdrawal of the appeal for entitlement to service connection for diabetes mellitus, glaucoma, hypertension, peripheral neuropathy, and erectile dysfunction is requested. CONCLUSIONS OF LAW 1. Service connection for bilateral hearing loss is warranted. 38 U.S.C.A. §§ 1110, 1131, 1154(b) (West 2002); 38 C.F.R. § 3.303 (2012). 2. Service connection for tinnitus is warranted. 38 U.S.C.A. §§ 1110, 1131, 1154(b); 38 C.F.R. § 3.303. 3. Service connection for degenerative disc disease of the lumbar spine is warranted. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 4. The criteria for withdrawal of the appeal for entitlement to service connection for diabetes mellitus by the appellant have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 5. The criteria for withdrawal of the appeal for entitlement to service connection for glaucoma by the appellant have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 6. The criteria for withdrawal of the appeal for entitlement to service connection for hypertension by the appellant have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 7. The criteria for withdrawal of the appeal for entitlement to service connection for peripheral neuropathy of the upper extremities by the appellant have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 8. The criteria for withdrawal of the appeal for entitlement to service connection for peripheral neuropathy of the lower extremities by the appellant have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 9. The criteria for withdrawal of the appeal for entitlement to service connection for erectile dysfunction by the appellant have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Claims 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, 1131; 38 C.F.R. § 3.303(a). Service connection requires 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Hearing Loss and Tinnitus The Veteran contends that service connection is warranted for bilateral hearing loss and tinnitus as they were incurred due to combat noise exposure during active duty service in Vietnam. The record clearly establishes the presence of current disabilities. Bilateral hearing loss and tinnitus were diagnosed in accordance with 38 C.F.R. § 3.385 (2012) by a December 2007 VA examiner. Bilateral sensorineural hearing loss was also diagnosed by a private audiologist during a July 2012 examination. The first element of service connection is therefore established. Service treatment records are negative for treatment or complaints related to the Veteran's hearing and an audiogram conducted in June 1968 was indicative of normal hearing. While there is no documentation of hearing loss during service, personnel records show that the Veteran served as a light weapons infantryman and received the combat infantryman badge. He also testified that he was exposed to various loud noises during his combat service in Vietnam, to include guns and artillery during fire fights. The noise exposure described by the Veteran is consistent with the circumstances of his combat service in Vietnam. 38 U.S.C.A. § 1154(b) (West 2002). The Board therefore finds that the evidence establishes the presence of current disabilities and an in-service injury, i.e. acoustic trauma. In Reeves v. Shinseki, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) found that the combat presumption contained within 38 U.S.C.A. § 1154(b) not only applied to a combat injury, but also the consequences of that injury, at least in service. Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012) (holding that the Board was required to apply the section 1154(b) presumption to the Veteran's claimed acoustic trauma during service and the separate question of whether he suffered permanent hearing loss while on active duty). Therefore, as the Veteran has reported the onset of permanent hearing loss and tinnitus during active duty, 38 U.S.C.A. § 1154(b) also applies to his contentions regarding the onset of the chronic disability during service. See Id. Section 1154(b) provides that service connection for the in-service injury can only be rebutted by clear and convincing evidence to the contrary. In this case, the Board finds that the record does not contain clear and convincing evidence that the Veteran did not acquire chronic hearing loss and tinnitus during active service, and the combat presumption of 1154(b) with respect to the in-service incurrence of the claimed disability is not rebutted. The Veteran has reported the onset of hearing loss and tinnitus during service that has continued to the present day. Lay statements, such as those made by the Veteran, are considered competent evidence when describing the features or symptoms of an injury or illness. Falzone v. Brown, Vet. App. 398 (1995). The Board also finds that the Veteran's statements are credible. Although service records do not document any evidence of hearing loss during service or at separation, the Veteran and his wife both testified that he experienced symptoms of hearing loss and tinnitus immediately after his separation from service. In addition, in July 2012 a private audiologist found that the Veteran's hearing loss was consistent with noise exposure and the Veteran's reported history of exposure during service as an infantry soldier. Although a December 2007 VA examiner provided an opinion against the claim, this opinion did not consider the testimony of the Veteran and his wife regarding the onset of symptoms during service-testimony that the Board has determined is credible. Thus, the record does not contain clear and convincing evidence that the Veteran's hearing loss and tinnitus were not incurred during active duty. Service connection is therefore warranted as the claimed disabilities had their onset during a period of active duty service. Low Back Disability The Veteran also contends that service connection is warranted for a disability of the low back. He testified in May 2012 that he injured his back during service when he slipped and fell down some concrete steps. He was hospitalized and treated for the condition, to include a spinal tap to remove fluid in his back. The record establishes a current disability-the Veteran was diagnosed with degenerative disc disease of the lumbar spine during a May 2008 VA examination. X-rays that accompanied the examination also demonstrated severe lumbosacral disc space narrowing and degenerative changes. Service treatment records also document the Veteran's reported injury. In January 1968 he was treated at the dispensary after falling and hitting his head on some steps. The Veteran also reported some upper back pain associated with the injury, though an X-ray of thoracic spine was negative. Although the Veteran's spine was normal upon examination in June 1968, service records clearly document a back injury and an in-service injury is demonstrated. With respect to whether the record establishes a nexus between the Veteran's in-service injury and degenerative disc disease, there is evidence both for and against the claim. The Veteran and his wife credibly testified in May 2012 that the Veteran has experienced back pain since active duty service. In addition, the record contains a July 2012 medical opinion from a private physician linking the Veteran's low back pain and degenerative disc disease to service based on the Veteran's history of continuous symptoms. Weighing against the claim is the opinion of a May 2008 VA examiner, who concluded that the Veteran's back disability was due to the normal aging process and a genetic predisposition. As there is evidence both in support and against the claim, the Board finds that the evidence is at least in equipoise regarding service connection for a low back disability and will resolve reasonable doubt in favor of the Veteran. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As a final matter, the Board finds that VA has substantially satisfied the duties to notify and assist, as required by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this appeal given the favorable nature of the Board's decision to grant the claims. Withdrawn Claims 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 (2011). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In a May 2012 statement, the appellant withdrew the appeal for entitlement to service connection for diabetes mellitus, glaucoma, hypertension, peripheral neuropathy, and erectile dysfunction. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal with respect to these claims and they are dismissed. ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for degenerative disc disease of the lumbar spine is granted. The appeal for entitlement to service connection for diabetes mellitus is dismissed. The appeal for entitlement to service connection for glaucoma is dismissed. The appeal for entitlement to service connection for hypertension is dismissed. The appeal for entitlement to service connection for peripheral neuropathy of the upper extremities is dismissed. The appeal for entitlement to service connection for peripheral neuropathy of the lower extremities is dismissed. The appeal for entitlement to service connection for erectile dysfunction is dismissed. ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs