Citation Nr: 18144193 Decision Date: 10/24/18 Archive Date: 10/23/18 DOCKET NO. 17-03 811 DATE: October 24, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is dismissed. FINDINGS OF FACT 1. The Veteran’s currently diagnosed bilateral hearing loss is likely the result of his active service. 2. Prior to promulgation of a decision in the appeal, the Veteran indicated that he would like to withdraw his appeal regarding entitlement to service connection for tinnitus. CONCLUSIONS OF LAW 1. The service-connection criteria for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. § 3.102, 3.303, 3.304 (2018). 2. The criteria for withdrawal of the issue of entitlement to service connection for tinnitus have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1961 to February 1965. Service Connection Under the relevant laws and regulations, 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. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (noting that nexus may be demonstrated by a showing of continuity of symptomatology where the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a)). For the purpose of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000 or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. 1. Entitlement to service connection for bilateral hearing loss With regard to a present disability, a March 2015 VA audiogram shows hearing acuity that meets the definition of hearing loss for VA purposes. See 38 C.F.R. § 3.385; see also March 2015 VA Examination. The first element of Shedden/Caluza is met. With regard to an in-service event, the Veteran’s service treatment records show no evidence of hearing loss; however, the Veteran was administered the Whisper Test on entrance and separation from service. See February 1961 and January 1965 Examinations. VA has determined that whispered voice tests are subjective, inaccurate, and insensitive to the types of hearing loss most commonly associated with noise exposure. See VA Training Letter 10-02 (March 18, 2010). Whispered voice tests can be inaccurate and insensitive to the types of hearing loss most commonly associated with noise exposure. See Smith v. Derwinski, 2 Vet. App. 137, 138, 140 (1992) (audiometric evaluation is a more precise indicator of hearing problems than whisper voice testing). The Veteran’s DD-214 indicates that he had a military occupational specialty (MOS) of a pistol instructor and he testified before the undersigned as to exposure to impulse noise from pistols in service. In light of this evidence, in-service noise exposure can be conceded, and the second element of Shedden/Caluza is also met. The remaining question is whether there is a medical nexus between the Veteran’s in-service noise exposure and his current bilateral hearing loss. The Veteran was afforded a VA examination in March 2015. Importantly, the VA examiner failed to observe the Veteran was administered the Whisper Test on entrance and separation from service, and instead opined his hearing loss was not due to service as there was no threshold shift during active duty. The VA examiner did not address whether the Whisper Test is a valid measure of hearing acuity and the Board finds that the March 2015 VA examination offers confused rationale as Whisper Tests do not indicate hearing thresholds. The March 2015 opinion is inadequate for these reasons. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). In support of his claim, the Veteran submitted July 2017 opinion from Dr. C.K. that his hearing loss was due to his pistol instructor duties in service and that he had inadequate hearing protection. See July 2017 Opinion. In light of the positive July 2017 opinion, the Board finds that the evidence is, at minimum, in equipoise regarding the question of whether the Veteran’s current bilateral hearing loss is related to his active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The benefit of the doubt will be conferred in the Veteran’s favor, and the service-connection claim for bilateral hearing loss is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to service connection for tinnitus The Veteran may withdraw an appeal as to any or all issues on appeal. 38 C.F.R. § 20.204(a) (2018). Except for appeals withdrawn on the record at a hearing, withdrawal must be in writing. 38 C.F.R. § 20.204(b)(1) (2018). A withdrawal is effective when received provided that receipt is prior to the issuance of a decision by the Board. 38 C.F.R. § 20.204(b)(3) (2018). Withdrawal of a claim constitutes a withdrawal of the notice of disagreement and, if filed, the substantive appeal. 38 C.F.R. § 20.204(c) (2018). In his October 2018 Board hearing, the Veteran informed the undersigned he wished to withdraw his appeal for tinnitus. 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. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Trickey, Jonathan