Citation Nr: 21062322 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 18-43 649 DATE: October 7, 2021 ORDER The appeal seeking increased ratings for posttraumatic stress disorder (PTSD), currently evaluated as 10 percent disabling prior to April 1, 2019, and 30 percent disabling thereafter, is dismissed. Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. REMANDED Entitlement to service connection for temporal bone tumor is remanded. FINDINGS OF FACT 1. During the September 2021 virtual hearing, prior to the promulgation of a decision in the appeal, the Veteran's representative explicitly and unambiguously withdrew the PTSD appeal. 2. The Veteran had noise exposure in service; bilateral hearing loss and tinnitus have been continuous since that time. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal seeking increased ratings for PTSD by the Veteran's representative have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1965 to October 1967, including foreign service in the Republic of Vietnam. For his meritorious service, the Veteran was awarded (among other decorations) the Vietnam Service Medal and Vietnam Campaign Medal. In September 2021, a virtual hearing was held in this appeal before the undersigned Veterans Law Judge. Although the Veteran was not present at the hearing, his appointed representative provided testimony in his absence. The Board acknowledges that hearings are not ordinarily held without the Veteran; based on the representation from the Veteran's representative regarding his age and his health, however, the Board found it prudent to accept the representative's argument at the hearing in an effort to ensure that the case would move forward as quickly as possible. Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. See 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or by his authorized representative. See 38 C.F.R. § 19.55. Except for appeals withdrawn on the record at a hearing, withdrawal of an issue must be offered in writing. See 38 C.F.R. § 19.55. During the September 2021 hearing, the Veteran's authorized representative withdrew the pending PTSD appeal. The withdrawal was explicit, unambiguous, and offered with a full understanding of the consequences of such action by the Veteran. Acree v. O'Rourke, 891 F.3d 1009, 1012 (Fed. Cir. 2018); DeLisio v. Shinseki, 25 Vet. App. 45, 5758 (2011). Accordingly, the criteria for a valid oral withdrawal have been satisfied in this case, and there is no evidence to suggest that the Veteran is unaware of, or objects to, such action. Thus, there remain no allegations of errors of fact or law for appellate consideration with respect to this matter. The Board does not have jurisdiction to review this appeal and it is hereby dismissed. Service Connection The Veteran is currently pursuing direct service connection for bilateral hearing loss and tinnitus. The Board will limit its analysis accordingly. As these appeals require similar analyses, they will be addressed simultaneously herein. Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) The existence of a current 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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may also be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) Where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Hearing loss and tinnitus are both recognized by VA as "chronic diseases" under 38 C.F.R. § 3.309(a), such that the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Here, there is competent evidence of current disabilities. Notably, the Veteran was diagnosed with both recurrent tinnitus, and bilateral hearing loss in accordance with VA regulations, during November 2015 VA examination. See 38 C.F.R. § 3.385 (establishing the criteria for a hearing loss disability). These diagnoses are also documented in VA and private treatment records spanning the period on appeal. Accordingly, the first element of direct service connection has been met for both appeals. There is also competent evidence of in-service noise exposure. The Veteran's DD Form 214 documents his in-service specialty as an ammunition specialist, which has a low probability of noise exposure. However, he has also offered competent and credible testimony of noise exposure during service, due to prolonged exposure to artillery and tanks. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Miller v. Wilkie, 32 Vet. App. 249 (2020); see, e.g., November 2015 VA examination; see generally VA treatment records. Compellingly, there is no evidence of record which directly contradicts his testimony on this point. Thus, in interpreting the evidence in the light most favorable to the Veteran, the second element of direct service connection is also met for both appeals. Finally, at various times during the pendency of these appeals, the Veteran has testified that his bilateral hearing loss and recurrent tinnitus onset during service and have continued since that time. See, e.g., November 2015 VA examination (reporting that he had hearing loss during service); January 2016 Notice of Disagreement (reporting that his tinnitus has existed since military separation). In this respect, the Board acknowledges that the Veteran informed his November 2015 VA examiner that his tinnitus onset after service. However, this does not establish that his tinnitus did not onset to a compensable degree within one year of military separation, nor is there such definitive evidence in the record. Rather, the Board finds both statements are of equal probative value. In resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran has had continuous symptoms of bilateral hearing loss and tinnitus since service separation, thus meeting the requirements of presumptive service connection under 38 C.F.R. § 3.303(b). Briefly, the Board acknowledges that the November 2015 VA examiner offered negative nexus opinions for both disabilities. However, the Board does not need to reach the weight assignable to these opinions, because service connection is granted on a presumptive basis under 38 C.F.R. § 3.303(b) for the chronic diseases of bilateral hearing loss and tinnitus (38 C.F.R. § 3.309(a)) based on a finding of continuous symptoms since service. REASONS FOR REMAND Although the Board sincerely regrets the additional delay this will cause, further development is necessary prior to the adjudication of the remaining appeal. The Veteran associates his temporal bone tumor with presumed exposure to herbicide agents during service in Vietnam. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307, 3.309; see undated service personnel record (reporting service in Vietnam from October 1966 to October 1967). However, he has not yet been afforded VA examination, nor is there an existing nexus opinion of record. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Remand for this purpose is warranted. The matter is REMANDED for the following action: Schedule the Veteran for an examination to assess the etiology of the claimed temporal bone tumor. The claims file and a copy of this remand must be made available for review. In particular, the examiner is asked to address: (1) Did the Veteran demonstrate temporal bone tumor (or the residuals thereof) during the period on appeal? (2) If so, opine as to whether it is at least as likely as not (50 percent probability or more) that the condition began in service, was caused by service, or is otherwise related to service, including presumed in-service exposure to herbicide agents? In formulating the opinion, the examiner is advised that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. [CONTINUED ON NEXT PAGE] A complete rationale should be provided for all opinions or conclusions expressed. It should be noted that the Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kovarovic, 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.