Citation Nr: 18157775 Decision Date: 12/14/18 Archive Date: 12/13/18 DOCKET NO. 16-58 874 DATE: December 14, 2018 ORDER Entitlement to service connection for hyperventilation syndrome is granted. Entitlement to service connection for a defective heart valve is denied. The appeal for an increased rating for bilateral hearing loss is dismissed. The appeal for an increased rating for tinnitus is dismissed. FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the Veteran, hyperventilation syndrome is shown to have developed during active service. 2. A defective heart valve is not shown to be causally or etiologically related to any disease, injury, or incident during service. 3. In an April 2018 hearing before the Board, the Veteran indicated he no longer wanted to pursue the appeal for a rating in excess of 10 percent for bilateral hearing loss and for a rating in excess of 10 percent for tinnitus. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hyperventilation have been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304 (b). 2. The criteria for entitlement to service connection for a defective heart valve have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for withdraw of the appeal for increased ratings for bilateral hearing loss and tinnitus have been met. 38 U.S.C. § 7105(a), 7108; 38 C.F.R. §§ 20.200, 20.202, 20.204(b)(c). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1980 to February 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Philippines. In April 2018, the Veteran participated in a hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be established for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be established without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Caluza v. Brown, 7 Vet. App. 498 (1995). The presumption of soundness attaches where there has been an induction examination in which the later complained-of disability was not detected. Bagby v. Derwinski, 1 Vet. App. 225 (1991). Only those conditions recorded in examination reports can be considered as noted and a history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of a condition. 38 C.F.R. § 3.304(b). When no preexisting condition is noted upon entry into service, a Veteran is presumed to have been found sound upon entry. The burden then falls on the Government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran’s disability was both preexisting and not aggravated by service. If this burden is met, then the Veteran is not entitled to service connection benefits. However, if VA does not rebut the presumption of soundness, the claim is service connection. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). 1. Entitlement to service connection for hyperventilation syndrome The Veteran contends that he is entitled to service connection for hyperventilation syndrome, as the alleged disability is the result of active service. A January 2015 rating decision denied service connection for hyperventilation syndrome and noted that the claimed disability existed prior to service. An August 1980 entrance examination is silent for any diagnosis of hyperventilation syndrome. In January 1981, the Veteran was diagnosed with hyperventilation syndrome following reports of “dizzy spells.” A January 1981 service medical record noted that the Veteran had hyperventilation syndrome with major duty restrictions. A February 1981 medical board letter indicted that the Veteran was being recommended for discharge due to erroneous enlistment. More specifically, the letter noted that the Veteran’s hyperventilation syndrome existed prior to entrance to service. The Board finds that there is no clear and unmistakable medical evidence of record showing that the Veteran’s hyperventilation syndrome existed prior to service. Due to the fact that hyperventilation syndrome was not noted in the Veteran’s entrance examination, and he was accepted and enrolled into service, the presumption of soundness attached with regard to hyperventilation syndrome. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The Veteran did not have hyperventilation syndrome at entrance to service and is presumed to have been in sound condition. The Board finds that the evidence does not clearly and unmistakably show that hyperventilation syndrome existed prior to entrance ot service. Medical evidence of record shows that the Veteran was diagnosed with hyperventilation syndrome in January 1981 while in active service, and was discharged as a result. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that it is at least as likely as not that hyperventilation syndrome began in service and the criteria for service connection for hyperventilation syndrome have been met. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for a defective heart valve The Veteran contends that he is entitled to service connection for a defective heart valve, as the alleged condition existed prior to service and was aggravated by service. The August 1980 service entrance record indicated that the Veteran did not experience palpitation or pounding of the heart, or any heart trouble. The Veteran was found to have a normal heart upon entrance to service. The Veteran’s service medical records are silent for the diagnosis of a defective heart valve or complaints of a defective heart valve. The February 1981 medical board report indicated hyperventilation syndrome. No other defects were noted. Due to the fact that a defective heart valve was not noted in the Veteran’s entrance examination, and he was accepted and enrolled into service, the presumption of soundness attached with regard to a defective heart valve. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Medical treatment records show a diagnosis for a defective heart valve in August 2016. VA must provide the Veteran with an examination where the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes an in-service event, injury or disease, or the presence of a presumptive disease during the pertinent period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). To date the Veteran has not alleged an in-service incident or injury that caused a defective heart valve. The diagnosis of the defective heart valve did not occur within one year of separation from service. There is no medical evidence of record suggesting that any defective heart valve is related to active service. The Board acknowledges the Veteran’s assertions that he believes his defective heart valve is related to active service. As a lay person, the Veteran can speak to the etiology of a disease in which the nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). However, the question of etiology of a defective heart valve goes beyond a simple and immediately observable cause-and-effect relationship. Therefore, the Veteran is not competent to provide an opinion on the etiology of a defective heart valve, and his opinion that his defective heart valve is the result of active service cannot be assigned any probative weight. Therefore, the Board finds that a defective heart valve is not shown to be causally or etiologically related to any disease, injury, or incident during service. Consequently, service connection for such disorder is not warranted. The Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for a defective heart valve. Therefore, the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to increased ratings for bilateral hearing loss and tinnitus During the April 2018 hearing before the Board, the Veteran indicated that he no longer wanted to pursue the appeal for increased ratings for bilateral hearing loss and tinnitus. A Veteran may withdraw a substantive appeal in writing at any time prior to the Board’s promulgation of a decision. 38 C.F.R. § 20.204. The Board finds that the Veteran effectively withdrew the substantive appeal for increased ratings for bilateral hearing loss and tinnitus. Therefore, the Board concludes that no allegation of fact or law remains. Therefore, the Veteran’s appeal regarding those issues must be dismissed. 38 U.S.C. § 7105. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. D. Cross, Associate Counsel