Citation Nr: 20007396 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 14-38 987 DATE: January 30, 2020 ORDER The appeal as to the issue of entitlement to an initial rating in excess of 10 percent prior to July 30, 2018 and in excess of 20 percent thereafter for a low back disability is dismissed. Service connection for bilateral tinnitus is granted. VETERAN’S CONTENTIONS The Veteran contends that he developed bilateral tinnitus as a result of acoustic trauma related to his military occupational specialty (MOS) as vehicle operator. REMANDED The issue of entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. Prior to the promulgation of a decision regarding the issue of entitlement to an initial rating in excess of 10 percent prior to July 30, 2018 and in excess of 20 percent thereafter for a low back disability, the Veteran requested a withdrawal of the appeal of this issue. 2. The Veteran has experienced tinnitus at least intermittently since leaving service in December 1967. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal regarding the issue of entitlement to an initial rating in excess of 10 percent prior to July 30, 2018 and in excess of 20 percent thereafter for a low back disability are met. 38 U.S.C. § 7105 (d)(5); 38 C.F.R. § 20.204. 2. The criteria for service connection for bilateral tinnitus are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5103, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1963 to December 1967. These matters come to the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. Jurisdiction was subsequently transferred to the RO in Little Rock, Arkansas. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) via video conference in July 2018. A transcript of the hearing is of record. 1. Entitlement to an initial rating in excess of 10 percent prior to July 30, 2018 and in excess of 20 percent thereafter for a low back disability 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. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative and must be in writing, except for appeals withdrawn on the record at a hearing. Id. Here, during the July 2018 Board hearing, the Veteran confirmed that he wished to withdraw his appeal regarding the issue of entitlement to an initial rating in excess of 10 percent prior to July 30, 2018 and in excess of 20 percent thereafter for a low back disability. The Veteran's statement to withdraw was made on the record during his hearing and was later reduced to writing; therefore, it satisfies the criteria for withdrawal of a substantive appeal. As there remain no allegations of errors of fact or law for appellate consideration on this issue, the Board does not have jurisdiction to review the appeal of this issue, and it is dismissed. 2. Entitlement to service connection for bilateral tinnitus Generally, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Service connection may also be granted through the application of statutory presumptions for chronic conditions. See 38 U.S.C. §§ 1101 (3), 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303 (b), 3.307(a)(3), 3.309(a). "Other organic diseases of the nervous system," which may include tinnitus, are classified as "chronic diseases" under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303 (b) also applies. 38 C.F.R. § 3.307; Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). Presumptive service connection for "chronic diseases" must be considered on three bases: chronicity during service, continuity of symptomatology since service, and manifestations within one year of the claimant's separation from service. 38 C.F.R. § 3.303 (b); Walker, 708 F.3d at 1336-38. The application of these presumptions operates to satisfy the "in-service incurrence or aggravation" element and establish a nexus between service and a current disability, which must be found before entitlement to service connection can be granted. Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical evidence. VA must also consider all favorable lay evidence of record. See 38 U.S.C. § 5107 (b); see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (a Veteran is competent to report on that of which he or she has actually observed and is within the realm of his or her personal knowledge). At the outset, the Board finds that the Veteran was exposed to excessive levels of noise in service, based on his consistent statements regarding in-service noise exposure related to his MOS as vehicle operator. In this regard, the Board notes that the Veteran's military personnel records, including a Form DD-214, confirm a MOS of vehicle operator and that related duties included transporting troops and aircraft parts. The Board also finds that the Veteran has a current disability, as he is competent to testify to observable symptoms, such as ringing in his ears, and has done so credibly in this instance, including during a July 2011 VA hearing loss and tinnitus examination and the July 2018 Board hearing; Charles v. Principi, 16 Vet. App. 370, 374 (2002). Thus, the remaining question is whether the Veteran's current tinnitus is related to his in-service noise exposure. When a claim involves a diagnosis based on purely subjective complaints, the Board is within its province to weigh the Veteran's testimony and determine whether it supports a finding of service incurrence and continued symptoms since service. Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). If it does, such testimony is sufficient to establish service connection. Id. The Board finds that the Veteran's competent and credible report is sufficient to establish service connection for bilateral tinnitus in this instance. Specifically, the Veteran reported in a May 2012 correspondence that he has had ringing in his ears quite frequently since leaving service in December 1967. The Board acknowledges that the evidence of record includes evidence that weighs against the Veteran's claim. Specifically, the July 2011 VA examiner opined that with normal hearing at military separation, it is not at least as likely as not that the Veteran’s tinnitus is a result of noise exposure during his military service. The examiner felt that civilian noise exposure and presbycusis were the more likely causative factors of the current condition. However, the July 2011 examiner did not provide an adequate rationale for his opinion that the Veteran’s tinnitus is related to civilian noise exposure and presbycusis rather than his active service. The Board notes that hearing loss need not be shown in service for service connection to be established; rather, service connection may be established for a current hearing disability with evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 160 (1993); see also 38 C.F.R. § 3.303 (d). Further, the Board affords the Veteran's own statements regarding significant probative value. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In light of the positive and negative evidence of record, to specifically include the Veteran's competent and credible report of experiencing tinnitus at least intermittently since leaving service in December 1967, the Board finds that the evidence is at least in equipoise regarding whether his current tinnitus was incurred in service. Hence, affording him the benefit of the doubt, service connection for tinnitus is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends that he has bilateral hearing loss as a result of acoustic trauma related to his military occupational specialty (MOS) as vehicle operator. In this regard, a July 2011 VA examiner opined that with normal hearing at military separation, it is not at least as likely as not that the Veteran’s bilateral hearing loss is a result of noise exposure during his military service. Rather, the examiner felt that civilian noise exposure and presbycusis were the more likely causative factors of the current condition. The Board finds the July 2011 VA examination inadequate to decide the Veteran’s claim for service connection for bilateral hearing loss. The July 2011 VA examiner did not provide an adequate rationale for his opinion that the Veteran’s bilateral hearing loss is related to civilian noise exposure and presbycusis rather than his active service. The Board notes that hearing loss need not be shown in service for service connection to be established; rather, service connection may be established for a current hearing disability with evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 160 (1993); see also 38 C.F.R. § 3.303 (d). Therefore, an addendum opinion should be obtained on remand. The matters are REMANDED for the following action: 1. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding VA treatment records. 2. Return the claims file to the audiologist who conducted the Veteran's July 2011 audiological examination, if available. If that audiologist is not available, send the claims file to another audiologist. The claims file and this remand should be made available to the examiner and review of the file should be noted in the requested report. After reviewing the claims file the audiologist should respond to the following: (a.) Is it at least as likely as not (50 percent probability or greater) that any current hearing loss disability had its onset in or is related to any in-service disease, event, or injury, including noise exposure; and, whether it is at least as likely as not that any current sensorineural hearing loss manifested to a compensable degree within one year of service discharge? In providing this opinion, the audiologist is asked to specifically discuss the Veteran's contention that his military occupational specialty (MOS) as vehicle operator resulted in exposure to jet engine and motor pool noise without hearing protection (he was on the flight line daily transporting troops). The audiologist is also asked to specifically discuss the July 2018 Blue Wave Hearing Centers Audiologic report and the lay statements of record (Drove a semi-truck post-service and there was no other significant post-service noise exposure. First noticed hearing problems in the 1980s. Wife first noticed his hearing problems in the mid1990s.) The examiner is also asked to consider the significance of the Veteran's in-service noise exposure, including the impact such noise exposure would have had on the hair cells in his cochlea and whether the extent of the Veteran's in-service noise exposure at least as likely as not caused his bilateral hearing loss to occur sooner, or to progress to a greater degree of severity, than it would have in the absence of such noise exposure. The audiologist is advised the lack of a diagnosis of hearing loss in service is not, by itself, a sufficient reason to find there is no nexus to service. The salient question is whether any incident of service, including noise exposure, caused a current hearing loss disability even though it may have been initially diagnosed years after the Veteran's discharge from service. All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith-Jennings, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.