Citation Nr: 1553553	
Decision Date: 12/23/15    Archive Date: 12/30/15

DOCKET NO.  12-20 959	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Entitlement to service connection for hypertension.

2. Entitlement to service connection for bilateral hearing loss.

3. Entitlement to service connection for hepatitis C.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his daughter


ATTORNEY FOR THE BOARD

D. Martz Ames, Counsel


INTRODUCTION

The Veteran had active service from June 1950 to March 1953.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  

The Veteran and his daughter testified at a hearing in November 2015 before the undersigned.  A copy of the transcript is of record.  

The issue of entitlement to a disability rating in excess of 30 percent for valvular heart disease was raised by the record at the Veteran's November 2015 hearing and in a subsequent statement later that month, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2015).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1. In November 2015, prior to the promulgation of a decision on the issue of entitlement to service connection for hypertension, the Veteran withdrew his appeal.  

2. The Veteran's currently diagnosed bilateral hearing loss is related to service.  


3. The Veteran's currently diagnosed hepatitis C is related to service.  


CONCLUSIONS OF LAW

1. The criteria for withdrawal of the Veteran's appealed claim for service connection for hypertension have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). 

2. The Veteran's bilateral hearing loss was incurred in service.  38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015).

3. The Veteran's hepatitis C was incurred in service.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Withdrawal of Appeal

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 2014).  A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R. §§ 20.202, 20.204 (2015).  Withdrawal may be made by the Veteran or by his authorized representative.  38 C.F.R. § 20.204 (2015).   

At his November 2015 hearing before the Board, the Veteran withdrew his appeal as to service connection for hypertension.  The Veteran's statement indicating his intention to withdraw the appeal as to this issue, once transcribed as a part of the record of his hearing, satisfies the requirements for the withdrawal of a substantive appeal.  See Tomlin v. Brown, 5 Vet. App. 355 (1993).  He subsequently confirmed his desire to withdraw this claim in a November 2015 written statement.  

In the present case, the Veteran has withdrawn this appeal and, 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 and it is dismissed.

II. Service Connection Claims

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015).  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases.  38 C.F.R. §§ 3.303(a),(b), 3.309(a) (2015); see also 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 that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2015).

In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability.  See 38 C.F.R. § 3.303 (2015); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  

The Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).  The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record.  

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2014).  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 C.F.R. § 3.102 (2015).  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996). 

A. Bilateral Hearing Loss

For VA purposes, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385 (2015).  The threshold for normal hearing is between 0 and 20 decibels and higher thresholds show some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

The Veteran underwent a VA examination in February 2011.  His pure tone thresholds, in decibels, were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
35
40
30
30
40
LEFT
30
40
40
55
70

His word recognition score using the Maryland CNC test was 80 percent in each ear.  The Veteran's hearing loss meets the criteria to be considered a disability for VA purposes.  38 C.F.R. § 3.385 (2015).  The first element of a service connection claim is satisfied.  Shedden, 381 F.3d at 1166-67.

At his November 2015 hearing, the Veteran testified that while stationed in Korea, he worked on a half-track that fired four 50 caliber machine guns, all at the same time.  He testified that they fired up to 20,000 rounds in support of infantry.  The Board finds his statement regarding his in-service noise exposure to be both competent and credible.  Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).  The second element of a service connection claim has been satisfied.  Shedden, 381 F.3d at 1166-67.

At his February 2011 VA examination, the examiner was unable to provide an etiology opinion without restoring to "mere speculation."  Because there was no hearing loss at separation from service, the examiner noted that, "it is nearly impossible to determine whether HL ... later in life is the result of noise exposure during prior military service."  The Veteran's separation hearing test was conducted with a whispered voice test, which is unreliable.  The February 2011 VA examination is not probative evidence.  See Jones v. Shinseki, 23 Vet. App. 382, 389-90 (2010).  

At his November 2015 hearing, the Veteran asserted that he noticed a slight hearing loss at separation from service and that it gradually worsened since that time.  Hearing loss is a chronic condition as set forth in 38 C.F.R. § 3.309(a).  Therefore, the theory of continuity of symptomatology is applicable in this case.  38 C.F.R. § 3.303(a),(b) (2015); see also Walker, 708 F.3d 1331.  The Board finds the Veteran's testimony to be both competent and credible and therefore a grant based on continuity of symptomatology is warranted.  

The Board finds that the preponderance of the evidence is in favor of service connection for bilateral hearing loss.  38 U.S.C.A. § 5107(b) (West 2014).   The appeal is granted.  

B. Hepatitis C

The Veteran has been diagnosed with hepatitis C, confirmed by laboratory testing.  The first element of a service connection claim is satisfied.  Shedden, 381 F.3d at 1166-67.

At his November 2015 hearing, the Veteran asserted that he was exposed to the hepatitis C virus (HCV) when he received inoculations via unsterile needles.  The Veteran is competent to state that he received inoculations via hypodermic syringes in service.  His statement that he received such injections is also credible.  The second element of a service connection claim is satisfied.  Shedden, 381 F.3d at 1166-67.

In May 2011, the Veteran underwent a VA examination.  The examiner stated that he was unable to provide an opinion without resorting to "mere speculation" because it was possible that the Veteran came into contact with contaminated blood because of his combat status and that the use of air gun injections "may potentially" transfer blood borne viruses.  The examination is inadequate for two reasons.  First, its use of the speculative phrase "may potentially" renders it non-probative.  See Warren v. Brown, 6 Vet. App. 4, 6 (1993).  Second, the examiner was informed that the use of air gun injections was the Veteran's claimed risk factor for HCV and that was not the Veteran's assertion.  In March 2011, the Veteran had informed VA that he never asserted that he contracted HCV via air gun, and instead it was due to the use of unsterile hypodermic syringes.  To be adequate, a medical opinion must be based upon an accurate factual premise and in this case it was not.  Reonal v. Brown, 5 Vet. App. 458, 461 (1993).   

In October 2015, the Veteran submitted a private medical opinion from Dr. P. W., who had treated the Veteran since 1992.  Dr. P. W. diagnosed the Veteran with hepatitis C and stated that, "[h]is means of infection could not be established conclusively but his only known risk factor was many injections he had during his military service in the 50's."  This opinion provides probative evidence in support of the Veteran's claim.  Because there is no negative opinion or other medical evidence against his claim, the Board finds that the October 2015 opinion from Dr. P. W. satisfies the nexus element of a service connection claim.  Shedden, 381 F.3d at 1166-67.  Service connection for hepatitis C is granted.  

III. Duty to Notify and Assist

Given the granting of the benefit, any further development or notification action  under the Veterans Claims Assistance Act of 2000 (VCAA) would not avail the Veteran.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014).


ORDER

The appeal of the issue of entitlement to service connection for hypertension is dismissed.  

Service connection for bilateral hearing loss is granted, subject to the laws and regulations governing the payment of monetary benefits.

Service connection for hepatitis C is granted, subject to the laws and regulations governing the payment of monetary benefits.

____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs