Citation Nr: 21000609 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-47 555 DATE: January 5, 2021 ORDER Service connection for hearing loss is granted. Service connection for tinnitus is granted. Service connection for a right ankle condition is dismissed. Service connection for a left ankle condition is dismissed.   FINDINGS OF FACT 1. The Veteran has hearing loss and tinnitus due to noise exposure in service. 2. In July 2020, prior to the promulgation of a Board decision, the Veteran withdrew the appeals of service connection for a right ankle condition and a left ankle condition. CONCLUSIONS OF LAW 1. The criteria for service connection for hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 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. 3. The criteria for withdrawal of the appeal for service connection for a right ankle condition have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for withdrawal of the appeal for service connection for a left ankle condition have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1971 to November 1973. The case is on appeal from an October 2014 rating decision. He testified at a Board hearing in July 2020. In July 2020, the Veteran submitted additional evidence. Waiver of RO consideration of the additional evidence is presumed given the date of the substantive appeal. See 38 U.S.C. § 7105(e). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. Service connection for hearing loss. 2. Service connection for tinnitus. The Veteran contends that he has hearing loss and tinnitus due to noise exposure during service. He explained at his July 2020 Board hearing that he was exposed to noise while in the field artillery and as a gunner. Board Hr’g Tr. 4. He first noticed a hearing impairment and tinnitus during service. Board Hr’g Tr. 5. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. First, the evidence establishes a current hearing loss for VA purposes under § 3.385. The Veteran’s hearing acuity upon puretone testing with a private (non-VA) provider in July 2020 was as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 30 35 45 LEFT 5 10 20 40 45 Because auditory thresholds at this examination were 40 decibels or greater in any of the frequencies, a hearing loss for VA purposes is established. See 38 C.F.R. § 3.385. He also has tinnitus. As to in-service, noise exposure, the Veteran’s service records show that his specialty during service was in the artillery, 13A10, Field Artillery Basic. Thus, he was likely exposed to Hence, an in-service injury is established. The evidence does not show that hearing loss manifested during service. His hearing acuity at service entrance in January 1971 was as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 -- 0 LEFT 0 0 0 -- 0 His hearing acuity at service separation in July 1973 was as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 -5 -5 -- 10 LEFT 10 0 0 -- 15 These audiometry results do not show hearing loss during service. However, noise exposure remains established. With regard to a nexus, a private examiner in March 2020 explained that there was evidence when comparing the audiograms at induction and separation of a hearing loss. The provider explained that the induction audiogram showed that there was no hearing loss whereas the audiogram at discharge showed extra sensitive hearing in some of the lower pitches on the right side, but at 4000 Hz there was a drop in his hearing sensitivity. The provider clarified that this is the frequency where damage from noise exposure typically occurs. Therefore, it was the provider’s assumption that the drop in hearing sensitivity (hearing loss) at 4000 Hz occurred during service when he was a gunner. On this basis, the private provider opined that the hearing loss detected at service separation was greater than 50 percent likely due to the Veteran’s two years of service. The provider specified that the additional hearing loss the Veteran has today is not directly related to service. With regard to tinnitus, the private provider explained that tinnitus is a symptom of high frequency hearing loss, which does not necessarily occur at the time of the hearing loss but can evolve as one develops hearing loss either from additional noise exposure or the hearing loss that comes with aging. The examiner advised that it is possible that without having a hearing loss by the time of service, the Veteran would not yet be experiencing any significant tinnitus. Therefore, the provider concluded that the tinnitus may very well be related to the noise exposure, and at the very least, the noise exposure had contributed to his tinnitus. The examiner remarked that the Veteran’s tinnitus had been influenced both by military noise exposure and aging. The Board finds that this examiner’s opinion is persuasive because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). A VA examiner in June 2014 opined that the Veteran’s hearing loss and tinnitus were less likely than not related to service. The examiner reasoned that although the Veteran was in the artillery, his service records indicated no loss of hearing as the result of service. Rather, the examiner felt, the Veteran had worked in the oil fields for four years after service, at a different facility for over twelve years, and at a food factory for nine years, so occupational noise could not be ruled out. The examiner felt that the hearing test in July of 1973 appeared reliable. Based on this, it was the examiner’s belief that the Veteran’s hearing loss was less likely than not caused by noise exposure in service. With regard to tinnitus, the examiner likewise opined that the condition was less likely than not caused by or a result of in-service noise exposure. The examiner reasoned that although the Veteran reported having had tinnitus when he separated from service, no complaint of tinnitus was found in his service records. The examiner reasoned that those records indicated no loss of hearing as the result of service, and the frequency and duration of the tinnitus was not characteristic of tinnitus associated with noise exposure. The examiner cited the Veteran’s report that it was only present once every two weeks for about 15-20 seconds. The examiner found no evidence linking tinnitus to the service. Given this evidence, the nexus element is at least in equipoise. Although the private examiner attributed the Veteran’s hearing loss and tinnitus to both in-service noise exposure and post-service factors, the degree of contribution between in-service and post-service factors is irrelevant because the nexus question concerns whether the in-service injury “contributed in any way” to the development of the claimed medical condition. In sum, the benefit-of-the-doubt doctrine is applicable, and therefore the Board finds that the Veteran’s the Veteran has hearing loss and tinnitus due to noise exposure in service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection is warranted for hearing loss and tinnitus. 3. Service connection for a right ankle condition. 4. Service connection for a left ankle condition. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. An appeal may be withdrawn by the Veteran or representative at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. At the July 2020 Board hearing, the Veteran stated that these two issues were being withdrawn. The Board finds that the Veteran’s withdrawal of the issues 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); see also Acree v O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). This was the express statement made by the Veteran. Therefore, there remain no allegations of errors of fact or law for appellate consideration with regard to these issues. Accordingly, the Board does not have jurisdiction to review the appeal as to the issues, and they are dismissed. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bosely, 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.