Citation Nr: 21003961 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 19-35 162 DATE: January 25, 2021 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. Service connection for dry eyes is granted. Service connection for vision impairment is granted. Service connection for a left knee condition is dismissed. Service connection for a left ankle condition is dismissed. Service connection for a right ankle condition is dismissed. Service connection for hemorrhoids is dismissed. REMANDED Service connection for a traumatic brain injury (TBI) is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, his bilateral hearing loss and tinnitus are related to his active duty service. 2. The evidence is in equipoise regarding whether the Veteran's dry eye and vision impairment are related to his active duty service. 3. In his September 2020 hearing, the Veteran in the presence of his representative, withdrew his appeals seeking service connection for conditions of his left knee, left ankle, right ankle, and hemorrhoids. CONCLUSIONS OF LAW 1. The criteria for service connection for hearing loss and tinnitus are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385. 2. The criteria for dry eyes and vision impairment are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.3.09. 3. The criteria for withdrawal of the claims for service connection for conditions of his left knee, left ankle, right ankle, and hemorrhoids are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1962 to February 1965. The Veteran and his wife testified at a hearing before the undersigned Veterans’ Law Judge in September 2020. A copy of the transcript is associated with the record. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has that chronic disability, service connection can be granted. 38 C.F.R. § 3.303 (b). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptoms after service may serve as an alternative method of establishing service connection. Continuity of symptoms may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Continuity of symptoms applies only to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Hearing Loss Tinnitus The evidence of record shows the Veteran has a diagnosis of hearing loss and tinnitus. See May 2017 VA examination. The Veteran’s military occupational specialty (MOS) included that of a reconnaissance scout. See September 2020 hearing testimony. The Veteran’s DD-214 notes that the Veteran had citations for rifle and pistol training. The Veteran testified that while in-service he was exposed to gun-fire during training and radar training, where he was not issued hearing protection. He stated that he did not have civilian occupation which included noise exposure. He stated that his hearing loss and tinnitus began in-service and continued after his service. The Veteran’s wife also testified at the September 2020 hearing that she had known the Veteran for 37 years and that his hearing loss and tinnitus had been present at that time, after his active duty service. The Board finds that the Veteran was exposed to excessive noise due to his MOS and his competent and credible reports of continued and sustained noise exposure while in-service. There is no evidence of record which disputes the Veteran’s statements regarding his hearing loss and tinnitus onset and symptoms. Based on the foregoing and resolving any reasonable doubt in favor of the Veteran, the Board finds that service connection for hearing loss and tinnitus are warranted. The Board is aware of a VA examination which found against a link between the Veteran’s hearing loss and his service. The examination, however, is inadequate for adjudication purposes and the Board does not afford it any weight as the examination appears to rely on the Veteran’s normal hearing at separation as recorded in his separation examination. This is an impermissible conclusion. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Resolving reasonable doubt in the Veteran’s favor, service connection for hearing loss and tinnitus is granted. Dry eyes Vision Impairment The Veteran’s medical records show that he has been diagnosed with dry eyes and optic atrophy. See February and October 2020 private medical records. The Veteran’s service treatment records (STRs) and his September 2020 hearing testimony showed that he was exposed to carbon monoxide while in-service, was unconscious for a prolonged period of time, and required hospitalization. An October 2020 opinion letter from the Veteran’s treating physician stated that the Veteran’s conditions were more likely than not related to his carbon monoxide exposure in-service. The record also contains a VA examination which does not find that the Veteran’s eye disabilities were related to his carbon monoxide exposure during his active duty service. However, based on the September 2020 private opinion, the Board finds that the evidence is in equipoise as to whether the Veteran’s eye disabilities were related to his carbon monoxide exposure during active duty service. Accordingly, resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection for a dry eyes and vision impairment is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Withdrawal Left Knee, Left Ankle, Right Ankle, Hemorrhoids The Veteran or the Veteran’s representative may withdraw an appeal as to any or all issues on appeal. 38 C.F.R. § 20.204(a). Except for appeals withdrawn on the record at a hearing, withdrawal must be in writing. 38 C.F.R. § 20.204(b)(1). A withdrawal is effective when received provided that receipt is prior to the issuance of a decision by the Board. 38 C.F.R. § 20.204(b)(3). Withdrawal of a claim constitutes a withdrawal of the notice of disagreement and, if filed, the substantive appeal. 38 C.F.R. § 20.204(c). In his September 2020 hearing, the Veteran in the presence of his representative, withdrew his appeals seeking service connection for conditions of his left knee, left ankle, right ankle, and hemorrhoids. There remains no allegations of errors of fact or law for appellate consideration of these issues. Accordingly, the Board does not have jurisdiction to review the appeal of these issues and they are dismissed. REASONS FOR REMAND TBI The Veteran has not been afforded a VA examination to determine the diagnosis of or etiology of his claimed TBI, to include any relation to exposure to any carbon monoxide while on active duty. After review of the claims file, the Board finds that there is sufficient evidence to warrant a VA examination for the Veteran’s claim for service connection for a TBI, to include exposure to carbon monoxide. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, remand is warranted in order to schedule the Veteran for an appropriate VA examination in accordance with McClendon. The matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed traumatic brain injury (TBI). The claims file should be made available to the examiner for review. The examiner must opine whether the Veteran has/had a diagnosis of TBI, and if there is such a diagnosis, whether it is at least as likely as not (50 percent or greater probability) that the TBI was incurred in, or due to, the Veteran’s service, to include his exposure to carbon monoxide in-service. The Veteran’s lay statements, including he and his wife’s September 2020 hearing testimony, regarding onset and continuity of symptomology should be recorded and considered. A rationale for all opinions must be provided. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Parrish, 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.