Citation Nr: 1822751 Decision Date: 04/17/18 Archive Date: 04/25/18 DOCKET NO. 14-34 105 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for ischemic heart disease. 3. Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD J. Setter, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1973 to December 1975. This matter comes before the Board of Veterans' Appeal (Board) on appeal from a rating decision in December 2012 by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference Board hearing in December 2017. A transcript of that hearing is of record. FINDINGS OF FACT 1. At the December 2017 hearing, the Veteran withdrew his appeal concerning the issues of entitlement to service connection for ischemic heart disease and hepatitis C. 2. The Veteran has a valid diagnosis of tinnitus, and first began experiencing tinnitus while in service and has experienced tinnitus persistently since active duty. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the issues of entitlement to service connection for both ischemic heart disease and hepatitis C have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. Resolving reasonable doubt in the Veteran's favor, the criteria to establish service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1141, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawn Issues The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the Veteran or by his or her authorized representative. Id. In his December 2017 hearing with the undersigned VLJ, the Veteran and his representative stated that the Veteran wished to withdraw his appeals for entitlement to service connection for ischemic heart disease and hepatitis C. That testimony has been reduced to a written transcript. As a matter of law, a withdrawal of an appeal is effective when received. See 38 C.F.R. § 20.204 (b)(3) (2017). Thus there remain no allegations of errors of fact or law for appellate consideration with respect to these matters. As the Board does not have jurisdiction to review this claim, it is therefore dismissed. II. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Given the favorable outcome of the service connection claim on appeal, any deficiencies with respect to such obligations is rendered moot. III. Service Connection for Tinnitus A. Legal Criteria for Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran 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-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The Court of Appeals for Veterans Claims held that "when audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." In evaluating claims of service connection for hearing loss, it is observed that the threshold for normal hearing is from zero to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). To make this determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Service connection may also be granted for 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). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system such as tinnitus, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For organic diseases of the nervous system, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). Service connection for tinnitus can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been "shown in service," there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2017). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. B. Evidence and Analysis - Tinnitus At the December 2012 VA examination, the Veteran reported persistent tinnitus. That examination noted and diagnosed the Veteran's current disability of tinnitus. Thus, the evidence establishes a current disability of tinnitus. Further, the Veteran testified at his December 2017 hearing that he had experienced tinnitus since he was in service in 1974. The Veteran served in the Army as a combat engineer, as noted both in hearing testimony before the undersigned VLJ and in his service records. The Veteran is competent to testify to his own experiences. Further, the Court has found that a layperson is capable of observing tinnitus. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Given that the Veteran's statements have been consistent, and the lack of contradictory evidence, the Board finds these statements credible. Therefore, the evidence establishes the second service connection element, an in-service incurrence or injury. With respect to the final element of nexus, the Veteran has credibly testified that he has experienced tinnitus persistently since active duty. In addition, the Veteran's spouse also testified at the hearing as to the Veteran's tinnitus disability and corroborated the Veteran's testimony that his tinnitus had begun in service. This testimony is sufficient to establish a nexus between the Veteran's current tinnitus and the in-service incurrence. This is because for certain chronic disorders, shown as such in service, so as to permit a finding that the disorder was incurred during service or within the presumptive period, subsequent manifestations of the same chronic disease at a later date, however remote, are service connected. See 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a) (2017). Tinnitus caused by acoustic trauma is considered is among the chronic diseases listed under 38 C.F.R. § 3.309(a) (2017). See Fountain v. McDonald, 27 Vet. App. 258, 263 (2015). Therefore, a presumption of service connection for chronic diseases under 38 C.F.R. § 3.303(b) (2017) applies to this tinnitus claim, and the third service connection element is satisfied. The Board acknowledges a negative opinion for service connection for tinnitus by the December 2012 examiner, but also notes changes in law and regulation since then that negate the weight of that opinion. That 2012 opinion predates the current legal guidance from 38 C.F.R. §§ 3.303(b) and 3.309(a) (2017) and Fountain v. McDonald, 27 Vet. App. 258, 263 (2015); see also Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013) (stating that "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service"). In addition, the Board notes that the Veteran's separation examination from November 1975 did not evaluate the Veteran's hearing at all, and thus the Board has a heightened duty to consider the applicability of the benefit of the doubt. Russo v. Brown, 9 Vet. App. 46, 51 (1996); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). Resolving all reasonable doubt in favor of the Veteran, his tinnitus cannot be satisfactorily disassociated from service. Thus, giving the Veteran the benefit of the doubt, all elements required to establish service connection for tinnitus have been satisfied, and service connection is warranted. 38 C.F.R. § 3.102 (2017). (CONTINUED ON NEXT PAGE) ORDER The appeals concerning the issues of entitlement to service connection for ischemic heart disease and hepatitis C are dismissed. Entitlement to service connection for tinnitus is granted. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs