Citation Nr: 1322562	
Decision Date: 07/16/13    Archive Date: 07/24/13

DOCKET NO.  09-06 762	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

1.  Entitlement to a compensable evaluation for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Bernard T. DoMinh, Counsel

INTRODUCTION

The Veteran served on active duty in the United States Air Force from September 1981 to September 2006.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision by the Denver, Colorado, Regional Office (RO) of the Department of Veterans Affairs (VA) which, inter alia, granted the Veteran service connection and a noncompensable evaluation for bilateral hearing loss and denied his claim for service connection for tinnitus.  

In May 2013, the Veteran and his representative appeared at the RO to submit evidence and oral testimony in support of his appeal before the undersigned traveling Veterans Law Judge.  A transcript of this hearing is associated with the Veteran's claims file. 


FINDINGS OF FACT

1.  At a May 2013 hearing before the Board, prior to the promulgation of a decision in the appeal, the appellant expressly requested to withdraw his appeal with regard to the initial rating assigned for an original award of service connection for bilateral hearing loss, which is currently in appellate status.

2.  The Veteran's tinnitus had its onset in active military service.  


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of the appeal for an initial compensable evaluation for an original award of VA compensation 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 (2012).

2.  Tinnitus was incurred in active duty.  38 U.S.C.A. §§ 1110, 1111, 1112, 1113, 1131, 1137, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

(a.)  Entitlement to a compensable evaluation for 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  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2012).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  In the present case, at a May 2013 hearing before the Board, the appellant expressly withdrew his appeal with regard to the issue of entitlement to an initial compensable evaluation for bilateral hearing loss prior to promulgation of an appellate decision; hence, there remain no allegations of errors of fact or law for appellate consideration with respect to this specific matter.  Accordingly, the Board does not have jurisdiction to review the appeal of this issue and it is therefore dismissed.

(b.)  Entitlement to service connection for tinnitus.

The Veteran's claim of entitlement to service connection for tinnitus is being granted in full.  Therefore, the Board finds that any error related to VA's duties to notify and assist under the Veterans Claims Assistance of Act of 2000 (Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)) with regard to the claim is rendered moot by this fully favorable decision.  

Service connection basically means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service.  This may be accomplished by affirmatively showing inception during service or through the application of statutory presumptions.  38 C.F.R. § 3.303(a) (2012).  Service connection may be granted for any disease diagnosed after discharge from active duty when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2012).  To establish direct service connection for a claimed disorder, there must be (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).

The Veteran's service personnel records indicate that he was routinely exposed to jet engine noise during the course of over 25 years of active duty as an avionics technician in the United States Air Force.  Based on such exposure, he is service connected for bilateral hearing loss.  Further, in his competent and credible written statements and oral hearing testimony before the Board in May 2013, the Veteran reported that he first perceived tinnitus symptoms bilaterally during active service while pursuing his duties on the flightline.  See Charles v. Principi, 16 Vet. App. 370   (2002) ("ringing in the ears is capable of lay observation").

Recognition is given to the February 2007 VA examination report wherein a VA audiologist determined that his reported symptoms of sporadic ringing in his ear did not meet the criteria for a tinnitus diagnosis.  However, a private audiologist who examined the Veteran in April 2013 concluded that his reported symptoms met the criteria for a diagnosis of tinnitus, which the audiologist opined was more likely than not related to the Veteran's military noise exposure.  No one opinion is any more or less probative than the other.  

Thus, as the clinical evidence is in relative equipoise regarding the tinnitus diagnosis and its relationship to the Veteran's military service, the appellant will be afforded the benefit of the doubt.  His claim for VA compensation for tinnitus is therefore granted.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012);  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).    



ORDER

The appeal of the June 2007 rating decision, with respect to the issue of entitlement to an initial compensable evaluation for an original award of service connection for bilateral hearing loss, is dismissed.

Service connection for tinnitus is granted.



____________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs