Citation Nr: 1807235 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 14-27 888 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for residuals of a torn anterior cruciate ligament of the right knee. 2. Entitlement to service connection for toe nail fungus. 3. Entitlement to service connection for tinnitus. 4. Entitlement to a rating in excess of 10 percent for status-post anterior cruciate ligament repair with degenerative joint disease of the left knee. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Jones, Counsel INTRODUCTION The Veteran had active service from July 1998 to December 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2012 and December 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Jurisdiction of the appeal has been transferred to the RO in Atlanta, Georgia. The Veteran testified before the undersigned at a Board videoconference hearing in September 2017. A transcript of the hearing has been associated with the claims file. The issue of entitlement to service connection for a right knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Resolving all doubt in favor of the Veteran, his tinnitus is due to noise exposure during active service. 2. In testimony provided during the September 2017 Board videoconference hearing, prior to the promulgation of a decision in the appeal, the Veteran indicated that he wished to withdraw the issue of entitlement to service connection for toe nail fungus and entitlement to an increased rating for his service-connected left knee disability. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). 2. The criteria for withdrawal of an appeal have been met with respect to the issue of entitlement to a rating in excess of 10 percent for status-post anterior cruciate ligament repair with degenerative joint disease of the left knee. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Entitlement to Service Connection for Tinnitus Service connection may be granted for disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2017). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2017). Service connection for certain chronic diseases, including an organic disease of the nervous system like sensorineural hearing loss or tinnitus, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1137 (2012); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2016); Fountain v. McDonald, 27 Vet.App. 258 (2017) (holding that section 3.309(a) includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an organic disease of the nervous system). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a) (2017); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was noted during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (West 2014); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background The Veteran asserts that service connection for tinnitus is warranted. He contends that the condition is due to noise exposure during active service. Available service treatment records are negative for treatment for or complaints of tinnitus during active duty. However, in a November 2004 hearing conservation data report, it was noted that the Veteran was routinely exposed to noise. Notwithstanding, at the time of the July 2005 medical board examination at discharge from military service, clinical evaluation of the ears was normal. In the accompanying Report of Medical History, the Veteran denied a history of ear trouble. A review of the Veteran's Certificate of Release or Discharge from Active Duty (DD Form 214) demonstrates that his military occupation specialty was in food services. The Veteran underwent a VA examination in August 2012 at which time tinnitus was assessed. It was documented that tinnitus had begun 8 years prior to the examination. The examiner opined that the Veteran's tinnitus is less likely than not caused by or a result of military noise exposure. In support of this finding, the examiner noted that during military service, the Veteran was exposed to artillery, explosions, tank engines, and generators without ear protection. It was noted that the appellant reported occupational noise exposure in law enforcement for 6 years during weapons qualifications every quarter with the use of ear protection. He also reported recreational gunfire use during target shooting for one year, every 2 months with the use of ear protection. The examiner concluded that tinnitus "seemed to" have begun after the service. In testimony provided during the September 2017 Board videoconference hearing, the Veteran contended that tinnitus is due to acoustic trauma during service. He testified that his tinnitus began in 2005 and has worsened since that time. Analysis After a review of the evidence, the Board finds that service connection is warranted for tinnitus. First, the evidence shows a diagnosis of tinnitus. Next, the evidence shows in-service noise exposure. As detailed above, in the in-service hearing conservation data report, it was noted that the Veteran was routinely exposed to noise. Accordingly, in-service noise exposure is established. Having established a current disability and in-service noise exposure, the question for consideration is whether the Veteran's tinnitus is related to the in-service exposure. In the instant case, the VA examiner opined that the Veteran's tinnitus was not related to military service as it "seemed to" have begun after the service. The basis for this opinion, however, is unclear as the examination report shows that the Veteran reported a date of onset for his tinnitus in 2004, while he was on active duty. The Board observes that service connection may be established upon a showing of continuity of symptomatology. See 38 C.F.R. § 3.303(b). Furthermore, tinnitus is the type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board is within its province to weigh testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Here, the Veteran is inarguably competent to report that he has tinnitus and to relay a date of onset for that condition. Indeed, during the VA examination reference above, the Veteran reported that the condition started 8 years prior to the examination, which would be during active service. Further, he indicated that it has continued since that time. The Board finds the Veteran's statements regarding the onset of tinnitus and continuity of symptoms are credible. Thus, accepting his lay statements, and resolving reasonable doubt in his favor, the Board finds that tinnitus had its inception during active service and has continued to the present day. Thus, service connection is warranted for tinnitus. 38 U.S.C. § 5107(b). Withdrawal of the Issues of Entitlement to Service Connection for Toe Nail Fungus and Entitlement to an Increased Rating for a Left Knee Disability Under applicable criteria, 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. § 7105 (2012). 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). An appeal may be withdrawn on the record at a hearing or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202, 20.204. Withdrawal may be made by an appellant or by his or her authorized representative. 38 C.F.R. § 20.204. Withdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011) ("Although Mr. DeLisio 'thought' that the Board member had identified the issues to be discussed, the transcript reflects neither an explicit discussion of withdrawal nor any indication that Mr. DeLisio understood that he might be withdrawing claims for benefits for any disabilities not discussed."). In the present case, in testimony provided during the September 2017 Board videoconference hearing, the Veteran's representative indicated that the Veteran wanted to withdraw the appeals for entitlement to service connection for toe nail fungus and entitlement to an increased rating for his service-connected left knee disability. The Veteran confirmed this on the record. With regard to the increased rating claim, it was reported that the Veteran understood the criteria for an increased rating and wanted to attempt to obtain additional evidence to see if he could meet the requirements. The representative stated that in the event the Veteran was able to obtain that evidence, he would file an increased rating claim at a later time. With regard to his toe nail fungus claim, it was represented that the condition had resolved. Based on testimony during the videoconference hearing, the Board finds that the criteria for a withdrawal of the appeal have been met. Thus, the Board finds that there remain no allegations of errors of fact or law for appellate consideration for these claims. Accordingly, the Board does not have jurisdiction to review the claims, and they are dismissed. ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for toe nail fungus is dismissed. Entitlement to a rating in excess of 10 percent for status-post anterior cruciate ligament repair with degenerative joint disease of the left knee is dismissed. REMAND The Veteran asserts that service connection for a right knee disability is warranted. Initially, he contended that the condition is secondary to his service-connected left knee disability. Subsequently, in testimony provided during the Board hearing, he indicated that right knee pain started during service and has continued to that time. The Veteran was provided a VA examination in September 2012 at which time ACL tear was assessed. The examiner determined that the claimed condition was less likely than not incurred in or caused by the claimed in-service event, injury, or illness. In so finding, the examiner noted that the Veteran's service treatment records documented a one-time right knee episode in January 2004 that resolved and was not present at his board examination in August 2004. He reported re-injury of the right knee in 2010, 12 years after discharge without any documented right knee issues after discharge. The examiner opined that the right knee disability is considered a new injury to the right knee. He also opined that the injury to the right knee is too severe to be caused by shifting weight or other mechanisms due to the left ACL tear and repair. In a subsequent medical opinion, the examiner opined that a date of right knee injury could not be made without resort to speculation, but was most likely not due to an in-service injury. After a review of the evidence, the Board finds that the September 2012 VA examination and medical opinions are insufficient to determine the claim of service connection for the Veteran's right knee disability. At the outset, the examiner did not consider the Veteran's reports of continued right knee pain since service. Additionally, although the examiner determined that the right knee disability was not caused by an in-service injury or by his service-connected left knee disability, the examiner did not provide an opinion regarding aggravation of the right knee by the service-connected left knee disability. In light of the forgoing, a new VA examination must be provided on remand. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his right knee disability. Access to records in the Veteran's electronic claims file should be made available to the clinician for review in connection with his or her opinion. Following examination of the Veteran, the examiner is to provide opinions for the following: (a) Is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's current right knee disability was incurred in service or is otherwise causally related to his active service or any incident therein? (b) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's right knee disability was caused by his service-connected left knee disability? (c) Is it at least as likely as (i.e., a 50 percent or greater probability) that the Veteran's right knee disability has been aggravated (chronically worsened) by his service-connected left knee disability? If aggravation is found, please identify the baseline level of disability prior to aggravation, to the extent possible, based on the medical evidence and also any lay statements as to the severity of the condition over time. A clear explanation for the VA medical opinion is required, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the clinician cannot respond without resorting to speculation, it should be explained why a response would be speculative. In rendering the requested opinions, the examiner must discuss the Veteran's complaint of right knee pain during service. The examiner must also discuss the Veteran's statements of continued right knee pain since military service. 2. After undertaking any development deemed necessary, readjudicate the issue on appeal, considering all the evidence of record. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a Supplemental Statement of the Case and the opportunity to respond. The case should then be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs