Citation Nr: 1800273 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 14-02 497 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE 1. Entitlement to service connection for tinnitus. 2. Entitlement to an increased rating for a bilateral foot disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD Gillian A. Flynn, Associate Counsel INTRODUCTION The Veteran had active service from December 1973 to March 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In September 2017, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge and a transcript of that hearing is of record. FINDINGS OF FACT 1. The Veteran was exposed to acoustic trauma during active service. 2. The evidence is in relative equipoise as to whether tinnitus is related to in-service acoustic trauma. 3. At the September 2017 hearing, the Veteran withdrew the appeal for an increased rating for a bilateral foot disability. CONCLUSION OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 1154, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.102, 3.303, 3.304, 3.309(e) (2017). 2. The criteria for withdrawal of the appeal for an increased rating for a bilateral foot disability have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). Establishing service connection generally requires competent medical or lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a relationship between the claimed in-service disease or injury and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In addition, with chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. As tinnitus, as an organic disease of the nervous system, is among the chronic diseases listed at 38 C.F.R. § 3.309(a), the Board finds that continuity of symptomatology may serve in lieu of a medical nexus. 38 C.F.R. § 3.303(b), 3.309(a) (2017); 38 U.S.C. §§ 1101, 1112 (2012). The Veteran contends that he has tinnitus as the direct result of acoustic trauma and hazardous noise exposure during active service due to duties as a rifleman, and that tinnitus has continued to worsen since service. The Veteran was diagnosed with tinnitus at a January 2013 VA examination. The examiner opined that it was less likely as not the tinnitus was related to service because the disability developed years following separation. The Board acknowledges the examiner's negative etiological opinion. However, the Board assigns less probative value to that opinion, as it did not adequately address the Veteran's lay assertions of onset and continuity of symptomatology, and did not have the opportunity to review the Veteran's hearing testimony regarding experiencing tinnitus after service, but not before. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Additionally, while the examiner opined that the Veteran's tinnitus was not due to service noise exposure, the examiner based the negative opinion solely upon the absence of a complaint of tinnitus within one year of separation. At the September 2017 hearing, the Veteran testified that he was a rifleman in the Marine Corps and had combat exposure to hostile enemy fire. He also stated that he was exposed to the noise from machine guns or mortars. The Veteran also testified to spending significant time at the firing range, including during periods of liberty. The Veteran stated that the ringing in his ears always occurred right after he fired weapons, but diminished within a few hours. He also stated that he was exposed to hazardous noise as a passenger on Chinook helicopters. The Veteran's spouse testified that he had complained of ringing in the ears since service. The Veteran was questioned about a September 2009 VA examination treatment report where he purportedly denied having tinnitus. He explained that at that time he did not know that tinnitus meant ringing in the ears. He corrected his statement in an August 2014 notice of disagreement and asserted that he had had ringing in his ears since service. The Veteran described his symptoms as a high pitched whining sound. Although a June 1974 service medical record indicated that the Veteran was fitted for ear plugs, at his September 2017 hearing, the Veteran testified that he did not remember being issued hearing protection during service. He also asserted that he always used hearing protection during his post-service jobs. The June 2013 VA examination report states that the Veteran did not complain of tinnitus during or immediately after service. However, in a March 1976 request for compensation, the Veteran asked for a hearing examination for possible hearing loss. The record does not show that one was provided. The Veteran is competent to report experiencing in-service acoustic trauma and auditory symptomatology in the form of tinnitus, as tinnitus is a conditions with unique and readily identifiable features that are capable of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Accordingly, the Board finds the Veteran's account of experiencing in-service acoustic trauma and tinnitus symptomatology to be credible and consistent with the circumstances of his service. 38 U.S.C. § 1154(a) (2012); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Additionally, the Board finds the Veteran to be credible in his report of having auditory symptomatology since service. Thus, there is competent and credible lay evidence of record that tinnitus occurred following acoustic trauma during active service that has continued to worsen. The Board assigns less probative value to the June 2013 opinion, as it did not adequately address the Veteran's lay assertions of onset and continuity of symptomatology. The examiner did not discuss the March 1976 request for compensation in which the Veteran asked for a hearing examination for possible hearing loss. Further, while the report indicates that the Veteran's prior medical records were examined, the examiner did not provide an analysis of the Veteran's service, medical, or lay history. In sum, the Veteran has competently and credibly reported a continuity of symptomatology of tinnitus during and since active service. Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus is subjective and the kind of condition lay testimony is competent to describe). The Veteran's report of a continuity of symptomatology suggests a link between current tinnitus and active service. Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the Board finds that the evidence for and against the claim is at least in equipoise. When the evidence for and against a claim is in relative equipoise, the Board must resolve all reasonable doubt in favor of the Veteran. Therefore, reasonable doubt is resolved in favor of the Veteran and entitlement to service connection for tinnitus is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). Withdrawal The Board may dismiss any appeal which does not allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2014). 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 (2017). Withdrawal may be made by the appellant or authorized representative. 38 C.F.R. § 20.204 (2017). At the September 2017 hearing, the withdrew the appeal for an increased rating for a bilateral foot disability. Thus, 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. ORDER Entitlement to service connection for tinnitus is granted. The appeal for increased rating for a bilateral foot disability has been withdrawn and is dismissed. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs