Citation Nr: 1332579 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 10-15 513 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to compensable disability rating for lumbar strain. 3. Entitlement to a compensable evaluation for left shoulder impingement syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran served on active duty from June 1999 to September 1999, July 2003 to May 2004 and from January 2006 to September 2007. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), in Newark, New Jersey. The Board has reviewed the Veteran's Virtual VA file and finds that there are no additional relevant records contained therein. FINDINGS OF FACT 1. On May 11, 2010, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, through his authorized representative, that he wished to withdraw his appeal as to the issues of the disability rating of the lumbar strain and left shoulder impingement. . 2. Resolving all reasonable doubt in the Veteran's favor, the evidence shows tinnitus is a result of service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the issue of entitlement to a compensable evaluation for lumbar strain by the Veteran have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. The criteria for withdrawal of the appeal of the issue of entitlement to a compensable evaluation for left shoulder impingement syndrome by the Veteran have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 3. Tinnitus was incurred in active duty military service. See 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012).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, the Veteran, through his authorized representative, has withdrawn the appeal as to the issues of entitlement to a compensable evaluation for lumbar strain and left shoulder impingement syndrome, and, hence, there remain no allegations of errors of fact or law for appellate consideration as to these issues. Accordingly, the Board does not have jurisdiction to review theses issues and they are dismissed. Service Connection The Veteran contends that his tinnitus is related to military service. Service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). In order to establish service connection for the Veteran's claimed disabilities, there must be evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. See 38 C.F.R. § 3.303(b) (2012). Tinnitus is, by definition "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." See Dorland's Illustrated Medical Dictionary (31st ed. 2007). As a "subjective" ailment, the existence of tinnitus is generally determined by whether or not the veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran has complained of tinnitus. Indeed, in a June 2008 VA examination, he reported tinnitus since being discharged from service. He reported noise exposure in service form convoy escort and artillery while serving in Iraq. The Board does not doubt that the Veteran currently experiences ringing in his ears. Accordingly, the Board finds that a current tinnitus disability exists, and the first Hickson element is therefore satisfied. Regarding the second Hickson element, in-service disease or injury, the Veteran asserts that he experienced loud noises in service, specifically the sound of artillery and convoy escort while serving in Iraq. The Board notes that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including exposure to loud noise during service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Moreover, service in Iraq is noted in the Veteran's DD-214. The Board finds the Veteran's assertion consistent with his service. The second Hickson element, in-service injury or disease, is therefore met. With regard to the third Hickson element, medical nexus, there is a single medical opinion of record. In June 2008, a VA examiner opined that tinnitus was not due to service. The opinion was based on the fact that the Veteran denied tinnitus at the time of a 2007 deployment examination. In this regard, the Board notes that the Veteran underwent a post-deployment examination in June 2007 at which time he denied tinnitus. However, he was not discharged from service until two months later, in September 2007. The examiner did not consider the fact that the Veteran had reported tinnitus since discharge and that the Veteran served for an additional two months after the post-deployment examination. The Veteran is competent to state that he has experienced tinnitus since service. Moreover, it is entirely possible that while he did not experience tinnitus at the time of the June 2007 post-deployment examination, he did experience tinnitus in the two months thereafter and prior to service discharge. Significantly, the Veteran filed for service connection for tinnitus in April 2008, less than a year from separation from service. In light of the evidence above, the Board affords little probative weight to the June 2008 VA examiner's opinion. Moreover, the Board finds that the Veteran's statements as to the inception of tinnitus are credible and competent. In all, the Board finds the evidence is at least in equipoise and resolving all reasonable doubt in the Veteran's favor, finds that service connection for tinnitus is warranted. Accordingly, the Veteran's claim for service connection is granted, subject to the controlling laws and regulations that govern awards of VA compensation. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102 , 3.400 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The appeal as to the issue of entitlement to a compensable evaluation for lumbar strain is dismissed. The appeal as to the issue of entitlement to a compensable evaluation for left shoulder impingement syndrome is dismissed. Service connection for tinnitus is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs