Citation Nr: 1331415 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 10-32 272 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for residuals of cancer of the cervix. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disability. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran had active service from March 2003 to April 2006. This matter comes before the Board of Veterans' Appeals (Board) from a November 2008 rating decision of the St .Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA) that denied service connection for bilateral hearing loss, tinnitus, and residuals of cancer of the cervix, and denied entitlement to a total disability rating based on individual unemployability due to service-connected disability. A May 2009 rating decision also denied service connection for posttraumatic stress disorder (PTSD) and the Veteran included that issue in her notice of disagreement. A July 2010 rating decision granted service connection for PTSD and assigned a 50 percent rating effective April 23, 2008. Therefore, that issue is no longer in appellate status and will not be addressed. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in June 2011. A transcript of the hearing is included in the claims file. FINDINGS OF FACT 1. On June 30, 2011, prior to the promulgation of a decision in the appeals, the Board was informed by the Veteran in testimony during a videoconference hearing that a withdrawal of the appeal on the issues of entitlement to service connection for bilateral hearing loss and residuals of cancer of the cervix was requested. 2. On May 9, 2011 prior to the promulgation of a decision in the appeal, the RO received a statement from the Veteran indicating that a withdrawal of the appeal on the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability was requested. 3. There is competent and credible lay evidence that the Veteran's tinnitus was initially manifest during her period of active duty and has continued since that time. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal of the issue of entitlement to service connection for bilateral hearing loss by the appellant 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 service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 3. The criteria for withdrawal of an appeal of the issue of entitlement to service connection for residuals of cancer of the cervix by the appellant have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 4. The criteria for withdrawal of an appeal of the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability by the appellant have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 (2012). Withdrawal may be made by the appellant or by the authorized representative. 38 C.F.R. § 20.204 (2012). On May 9, 2011 prior to the promulgation of a decision in the appeal, the RO received a statement from the Veteran indicating that a withdrawal of the appeal on the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability was requested. On June 30, 2011, prior to the promulgation of a decision in the appeals, the Board was informed by the Veteran in testimony during a videoconference hearing that a withdrawal of the appeal on the issues of entitlement to service connection for bilateral hearing loss and residuals of cancer of the cervix was requested. Therefore, there remain no allegations of errors of fact or law for appellate consideration on those claims. Accordingly, the Board does not have jurisdiction to review the appeal on those issues and they are dismissed. Duties to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was provided appropriate notice in letters dated in May 2008, prior to the rating decision on appeal. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and her representative suggest actual knowledge of the elements necessary to substantiate the claim, including at her videoconference hearing before the undersigned. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examination with respect to the claim on appeal and the examination is adequate and sufficient upon which to decide the claim. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Barr v. Nicholson, 21 Vet. App. 303 (2007) (once VA provides an examination, even if not obligated to do so, VA must ensure the examination is adequate). Consequently, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in active service or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Evidence of continuity of symptomatology of a disability identified in 38 C.F.R. § 3.309(a) from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2012); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415 (1998); Cuevas v. Principi, 3 Vet. App. 542 (1992). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In adjudicating a claim, the Board must assess the competence and credibility of the claimant. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362 (2001). Competency of evidence must be distinguished from weight and credibility, which are factual determinations in determining the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997); Cartright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). The Veteran's service medical records do not denote any complaints or treatment for tinnitus. At her videoconference hearing before the undersigned in June 2011, she testified that she was exposed to acoustic trauma from the flight line and from mortar and rocket attacks that took place at her base. She recalled one mortar attack in January 2005 that blew out the windows of her living quarters. Shortly after that, she began to experienced ringing in her ears. The condition had continued since that time. Upon VA examination in July 2010, the Veteran gave a similar history and the examiner concluded that there was subjective evidence of bilateral tinnitus. The Veteran is competent to provide testimony as to having experiencing ringing in her ears during service and after service. Charles v. Principi, 16 Vet. App. 370 (2002); Layno v. Brown, 6 Vet. App. 465 (1994) (Veteran is competent to report symptoms that require only personal knowledge, not medical expertise, as they come through the senses). The Board finds that her statements are credible, consistent with the circumstances of her service, and sufficient to demonstrate continuity of symptomatology pertaining to the ringing in her ears since service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, resolving any reasonable doubt in the Veteran's favor, the Board concludes that tinnitus was incurred in service and that service connection for tinnitus is warranted. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). ORDER The appeal of the issue of entitlement to service connection for bilateral hearing loss is dismissed. Service connection for tinnitus is granted. The appeal of the issue of entitlement to service connection for residuals of cancer of the cervix is dismissed. The appeal of the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability is dismissed. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs