Citation Nr: 1527889 Decision Date: 06/30/15 Archive Date: 07/09/15 DOCKET NO. 09-16 238 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a compensable initial rating for bilateral hearing loss. 2. Entitlement to service connection for vertigo, claimed as secondary to service-connected tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Evan M. Deichert, Counsel INTRODUCTION The Veteran served on active duty from October 1953 to October 1956. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions of November 2008 and September 2012 of the Houston, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). The November 2008 rating decision granted service connection for bilateral hearing loss and assigned a noncompensable rating; the September 2012 decision denied the vertigo claim. It is not clear to the Board whether the Veteran's substantive appeal for his vertigo claim was timely submitted. The RO issued a statement of the case in July 2014. In the 60 days following that date, there is no evidence of a communication from the Veteran regarding this claim. That said, an October 2014 letter from the RO to the Veteran stated that the Veteran's "claim for vertigo is currently under review by the Appeals Board." An April 2015 fax from the Veteran's representative includes a copy of a substantive appeal signed by the Veteran in August 2014, a date which would clearly be timely. In light of the October 2014 letter from the RO to the Veteran, and in light of the fact that he clearly desired to continue his claim (as shown by the substantive appeal dated from August 2014, if not received then), the Board finds that VA has waived any objection to the procedural sufficiency of this claim. Percy v. Shinseki, 23 Vet. App. 37, 47-48 (2009). Finally, on his August 2014 substantive appeal, the Veteran requested the opportunity to offer testimony at a Travel Board hearing. As the Board is granting the Veteran's claim, however, such a hearing is not necessary. Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. FINDINGS OF FACT 1. In a March 2015 letter, prior to the promulgation of a Board decision, the Veteran requested a withdrawal of his appeal on the issue of entitlement to an increased initial rating for bilateral hearing loss. 2. The Veteran's vertigo had its onset in, and is causally related to, his active service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of entitlement to an increased initial rating for bilateral hearing loss have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2014). 2. The criteria for service connection for vertigo have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Hearing Loss Dismissal The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. 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. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In a March 2015 letter, the Veteran requested "to withdraw [his] current appeal for an increase on [his] service connected hearing loss." Given this statement, there remain no allegations of errors of fact or law for appellate consideration. The Board does not have jurisdiction to review the appeal of this issue, and the Veteran's claim must be dismissed. II. Service Connection for Vertigo Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Both private and VA medical evidence show that the Veteran currently suffers from vertigo. In a March 2012 letter, the Veteran's private physician wrote that the Veteran has been diagnosed as suffering from benign paroxysmal positional vertigo; this diagnosis was also provided in an April 2013 VA examination. An earlier January 2012 VA examination reflects a diagnosis of peripheral vestibular disorder. The current disability criterion is met. Heretofore, the Veteran has argued that his vertigo is secondary to his service-connected tinnitus. The evidence of record, however, is against this contention. The examiners from both the January 2012 and the April 2013 VA examinations concluded that there is no relationship between the Veteran's tinnitus and his vertigo. The Veteran has introduced no competent evidence of his known establishing a link between these disabilities. That said, granting service connection on a secondary basis is not necessary, as the evidence shows that service connection on a direct basis is warranted. At the outset, the Board notes that the Veteran's service treatment records are missing. During the pendency of earlier claims, VA lost the Veteran's claims file, including his service treatment records. In appeals where a veteran's service treatment records are unavailable, there is a heightened obligation to assist the appellant in the development of the case, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); see also Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). The Veteran has consistently maintained that he began suffering from vertigo during his active service, and that he has suffered from this disability ever since. For instance, at his January 2012 VA examination, the Veteran stated that he had episodes of vertigo beginning during his active duty. At his April 2013 VA examination, the Veteran stated that his vertigo began during his active service, specifically while he was aboard a ship en route to Japan. At a June 2014 hearing before a Decision Review Officer (DRO), the Veteran reiterated his contention that his vertigo began during his active service and has continued thereafter. The Veteran's statements are consistent with other evidence of record. At the June 2014 DRO hearing, the Veteran's wife testified that she observed him suffering from symptoms of this disability during his active service. In conjunction with his February 2013 notice of disagreement, the Veteran sent numerous letters from family and friends with their observations of the Veteran. All of these letters noted that the Veteran had suffered from vertigo for many years; letters from the Veteran's cousin and from his friend both assert that he suffered from this disability during his active service. Both the Veteran and his family and friends are competent to report the dates of onset and the observable symptoms of the Veteran's vertigo. Further, given the degree of consistency between these sources, the Board finds them to be credible. When read in concert, all of these statements demonstrate that the Veteran suffered from vertigo during his active service and continually thereafter. Resolving all reasonable doubt in his favor, the Board concludes that service connection for vertigo is warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER The appeal of the issue of entitlement to an increased initial rating for bilateral hearing loss is dismissed. Service connection for vertigo is granted. ____________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs