Citation Nr: 20021172 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 16-20 498 DATE: March 24, 2020 ORDER Entitlement to service connection for bilateral hearing loss dismissed. Service connection for tinnitus is granted. REMANDED Entitlement to service connection for osteochondritis dissecans status post meniscus restoration surgery, left knee, is remanded. Entitlement to service connection for degenerative disc disease, lumbar spine, is remanded. FINDINGS OF FACT 1. In September 2019, the Veteran and his representative withdrew his claim for service connection for bilateral hearing loss at a Board videoconference hearing. 2. The competent evidence shows that the Veteran’s current tinnitus disability began during active service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal of the issue of entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1995 to July 1999. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision of a Department of Veteran Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. The transcript is of record. Dismissal At the September 2019 Board hearing, the Veteran indicated in person, before the undersigned VLJ that he desired to withdraw his appeal of service connection for hearing loss. An appellant may withdraw an appeal as to any or all issues. 38 C.F.R. § 20.205(a) (2019). Further, 38 C.F.R. § 20.204(a) provides that appeals may be withdrawn "on the record at a hearing" or in writing if the writing contains certain information. 38 C.F.R. § 20.204(b) (2018). "[I]t is well settled that 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). In the present case, the Veteran, through his in-person appearance at the September 2019 Board hearing, withdrew his appeal of service connection for hearing loss. See Hearing Transcript received on 09/18/2019, at 2. Based on the undersigned’s observations at the hearing, the Board that such withdrawal was explicit, unambiguous, and done with a full understanding of the consequences. Indeed, the Veteran and his representative showed no desire to continue the appeal for this issue. As such, the Board finds that there remains no allegations of errors of fact or law for appellate consideration since the withdrawal of the issue was an effective one. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. Service Connection Generally, service connection will be granted if the evidence demonstrates that a current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection requires evidence of a current disability, an in-service incurrence, disease or injury and a causal relationship between the current disability and the in-service incurrence, disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Additionally, tinnitus is classified as an organic disease of the nervous system, which is also listed as a chronic disease under 38 C.F.R. § 3.309 (a). See Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). 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 appellant's separation from service. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996).   Entitlement to service connection for tinnitus. The Veteran contends that his tinnitus is related to active military service. In February 2015, the Veteran was diagnosed with tinnitus. Thus, the first element of a service connection claim, a current diagnosis, has been met. The Veteran provided testimony at a September 2019 Board videoconference hearing. He asserted that he served in the Air Force as a first responder on the flight line; where he was exposed to loud noises from airplane engines. His DD Form 214 reflects service in the Air Force as a security officer. As such, the Board finds that his assertions are consistent with the places, types and circumstances of his service. 38 C.F.R. § 3.303(a). Therefore, the second element of a service connection claim, an in-service incurrence, has been met. Based on the above, the record demonstrates both current disability and an in-service incurrence. The question for the Board’s consideration is whether the current diagnosed tinnitus is at least as likely as not attributable to the in-service injury. The Veteran’s August 1994 entrance examination and Accompanying Report of Medical History showed no hearing abnormalities. During service, there were no complaints, treatment or a diagnosis for a hearing impairment. At discharge, in May 1999, the Veteran elected not to have a separation examination after a review of his medical records determined that a physical examination prior to separation was not required. Following service, VA and private treatment records do not show treatment for tinnitus prior to the Veteran filing the claim for tinnitus in November 2014. In February 2015, the Veteran was afforded a VA audiological examination. He asserted that during his military service he was exposed to loud noise while working along the flight line without hearing protection as well as exposure to loud noise while firing weapons. The VA examiner diagnosed tinnitus. However, the examiner opined that the disability was less likely than not as a result of in-service noise exposure. The rationale conceded in-service noise exposure, but the examiner found that the onset of tinnitus in addition to a lack of treatment in the service records did not provide a causal relationship to his active military service. As noted above, the Veteran testified at a September 2019 Board videoconference hearing. He asserted that he was not issued hearing protection while serving as part of the security force along the flight line. The rationale for not wearing hearing protection was due in part to security personnel being required to listen for radio transmissions along the flight line. He indicated the tinnitus began while he served on active duty. Further, he stated that he worked along the flight line for three years experiencing loud noise in addition to firing weapons frequently due to his law enforcement background, which included firing shotguns and machine guns. The firing of weapons further degraded his hearing. Following service, he asserted that he had limited loud noise exposure in his job as a police dispatcher. Based on the competent lay and medical evidence above, the Board finds that Veteran’s tinnitus is related to his active military service. Initially, the Board notes that tinnitus is a disability that is diagnosed based on self-report (lay observation by the person with such disability); hence, the Veteran is competent to establish by his own accounts that he has tinnitus, and that he has had it continuously since service. The Veteran, as a layperson, is competent to report in-service acoustic trauma, in-service symptoms of tinnitus, and post-service, continuous symptoms of tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). In this instance the lay and medical evidence of record does not support a continuous self-report since service or actual treatment during service. However, the competent lay evidence supports a finding that his current tinnitus was incurred during active service. At the 2019 Board hearing, the Veteran testified under oath that he first remember ringing or chirping in his ears during service. The Board affords the Veteran the benefit of the doubt on this material issue of fact. 38 U.S.C. § 5107(b). As such, the Board finds that the Veteran’s tinnitus was incurred coincident with his active service. 38 C.F.R. § 3.303(a). The Board notes that an in-service treatment record from August 1995 shows the Veteran was advised that hearing loss due to noise exposure can be prevented by the use of personal hearing protection. Moreover, he was issued hearing protection on the date of the examination and the treatment records reveals he signed for the hearing protection. The issuance of hearing protection contradicts the Veteran’s September 2019 Board testimony, in which he asserted that he was not issued hearing protection. As stated above, the Board will resolve doubt in his favor in light of his four years of honorable service to the country in the U.S. Air Force in security personnel, to include as a first responder. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (noting that the benefit of the doubt rule is a unique standard of proof, and "the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits"). In sum, the Veteran has a current tinnitus disability that was incurred coincident with service. 38 C.F.R. § 3.303(a). REASONS FOR REMAND 1. Entitlement to service connection for osteochondritis dissecans status post meniscus restoration surgery, left knee, is remanded. 2. Entitlement to service connection for degenerative disc disease, lumbar spine, is remanded. The Veteran contends that his left knee and lumbar spine issues are related to his active military service. A March 2015 RO rating decision denied service connection for both issues due to a lack of in-service treatment or an in-service incurrence related to the issues. The March 2015 RO decision relied on a February 2015 VA examination report, which asserted there was no in-service treatment for left knee or a lumbar spine condition. A review of the service treatment records (STRs) finds that the March 2015 VA examination report is incomplete. Indeed, STRs reveal that the Veteran initially sought treatment for his left knee in May 1997 due to pain after he went running. In November 1998, medical records reveal he was treated for left knee pain after a football game. In addition, there was a final incident potentially related to the Veteran’s lumbar spine where he sought treatment after he hurt his neck playing basketball in December 1998. None of these in-service incidents were addressed by the VA examiner. Additionally, the Veteran testified during the September 2019 Board videoconference hearing that he first injured his left knee while playing football on base. He was diagnosed with “chondritis”, which he later had surgery performed on his left knee after he was discharged. Based on the above probative evidence, remand is warranted to afford the Veteran another VA examination to determine the etiology of his left knee and lumbar spine disabilities. The Board notes that the Veteran is contending his lumbar spine problems could be do overcompensation from his left knee. As such, the Board will remand this issue too. Additionally, updated VA treatment records should be associated with the record on remand. See Sullivan v. McDonald, 815 F.3d 786, 792 (Fed. Cir. 2016) (finding that because § 3.159(c)(3) expanded the VA’s duty to assist to include obtaining VA medical records without consideration of their relevance.) These matters are REMANDED for the following actions: 1. Update/Obtain VA treatment records from February 2015 to the present. Document all requests for information as well as responses in the claims file. 2. After completion of step #1, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his osteochondritis dissecans status post meniscus restoration surgery left knee disability. The examiner is to specifically address: a) In-service medical treatment on May 11, 1997 for left knee pain following a run and November 2, 1998, left knee pain after playing football. See September 7, 1999 STR-Medical. b) The Veteran’s September 18, 2019, hearing testimony related to his left knee. See September 18, 2019, Hearing Transcript. c) Whether it is at least likely as not that the Veteran’s current left knee disability is related to an in-service injury, event, or disease. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical evidence, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). d.) Whether it is at least likely as not that the Veteran’s current left knee disability is the proximate cause of OR aggravating the Veteran’s degenerative disc disease of the lumbar spine 3. After competition of step #1, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his osteochondritis dissecans status post meniscus restoration surgery left knee disability. The examiner is to specifically address: a) In-service medical treatment on May 11, 1997 for left knee pain following a run and November 2, 1998, left knee pain after playing football. See September 7, 1999 STR-Medical. b) In-service treatment record for neck injury December 21, 2998, following a neck injury after playing basketball, which included a cervical spine imaging study that revealed loss of normal cervical lordosis. See September 7, 1999, STR-Medical. c) Whether it is at it is at least likely as not that the Veteran’s current lumbar spine disability is related to an in-service injury, event, or disease. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical evidence, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.M. Williams, 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.