Citation Nr: 21062707 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-04 857A DATE: October 12, 2021 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. Service connection for hemorrhoids is dismissed. As new and material evidence has been received, the request to reopen the claim for service connection for a right shoulder disorder is granted. REMANDED A rating higher than 10 percent prior to November 21, 2012, higher than 20 percent prior to July 6, 2018 and higher than 40 percent thereafter for low back strain with degenerative disc disease and mild levoscoliosis is remanded. An effective date prior to January 17, 2014, for a 60 percent rating for acne is remanded. Service connection for a bilateral hips condition is remanded. Service connection for a right shoulder disorder is remanded. FINDINGS OF FACT 1. Resolving any reasonable doubt in favor of the Veteran, he has a diagnosis of bilateral hearing loss and tinnitus which is attributable to his active duty service. 2. At the Veteran's March 2021 Board of Veterans' Appeals (Board) hearing, the Veteran unambiguously expressed his intent to withdraw his appeal regarding his claim of service connection for hemorrhoids. 3. The additional evidence received since a final September 2012 decision raises a reasonable possibility of substantiating the previously denied claim for service connection for a right shoulder disorder and the claim is reopened. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss and tinnitus are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for withdrawal of the appeal for service connection for hemorrhoids by the Veteran are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria to reopen the claim for service connection for a right shoulder disorder are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1991 to October 1996. The Veteran testified before the undersigned Veterans Law Judge at a hearing in March 2021; a copy of the transcript is of record. Service Connection Bilateral Hearing Loss and Tinnitus 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). The Veteran contends that his bilateral hearing loss and tinnitus is related to his in-service noise exposure. Specifically, the Veteran reported onset of hearing loss and tinnitus after his service while attached to an artillery unit. See March 2021 hearing testimony. The evidence of record shows the Veteran has a diagnosis of bilateral hearing loss and tinnitus. See January 2019 VA examination. The Veteran's military occupational specialty (MOS) included that of a medical field service technician. His DD-214 shows that he was a hospital corpsman and attended medical training; he was also shown on his DD-214 to have been stationed in Hawaii. The Veteran testified that his job duties as a corpsman required him to provide medical support to artillery units associated with large caliber weapons. He stated that the noise exposure he suffered from his service associated with the large caliber weapons caused his hearing loss and tinnitus. See March 2021 hearing testimony. Based on the foregoing, including the Veteran's credible and unrefuted testimony about his in-service noise exposure and his credentials as a military corpsmen, the Board finds that the Veteran was exposed to excessive noise while on active duty. 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 is 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 well as a misstatement regarding the Veteran's in-service and occupational noise exposure. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Additionally, the Board notes that seeking to obtain negative evidence against the Veteran is prohibited by VA law. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). As such, resolving reasonable doubt in the Veteran's favor, service connection for bilateral hearing loss and tinnitus is granted. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Withdrawal Hemorrhoids In his March 2021 hearing, the Veteran in the presence of his representative stated that he wished to withdraw his appeal for service connection for hemorrhoids and did not wish to pursue any further appellate action regarding this issue. The withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018); DeLisio v. Shinseki, 25 Vet. App. 45 (2011). As such, there remains no allegation of error of fact or law for the Board to address. Accordingly, the Board does not have jurisdiction to review the appeal of this issue and it is dismissed. New Material Evidence Right Shoulder In a rating September 2012 rating decision service connection was denied for a right shoulder disorder. In January 2014, the Veteran submitted a statement which clarified his request to withdraw his appeal of the September 2012 decision and asked for reconsideration of his claim on the basis of new and material evidence. To reopen a previously and finally disallowed claim, new and material evidence must be submitted by the claimant or secured by VA with respect to that claim since the last final denial, regardless of the basis for that denial. VA defines "new and material evidence" as follows. "New evidence" means evidence not previously submitted to agency decision makers, and "material evidence" means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). To warrant reopening, the new evidence must neither be cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id.; see Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (holding that there is a "low threshold" for reopening). The credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board notes that its task is to first decide whether new material evidence has been received, as opposed to whether or not the evidence actually substantiates the Veteran's claim. In order to resolve any question as to the status of the Veteran's claim regarding the finality of the September 2012 Decision, the Board finds that new and material evidence has been added to the record which relates to previously unestablished elements of the claim and the claim for service connection for a right shoulder disorder is reopened. REASONS FOR REMAND Higher Rating for Low Back Strain Effective Date Prior to January 17, 2014, For 60 Percent Rating for Acne Service Connection for A Right Shoulder Disorder Service Connection for A Bilateral Hips Disorder The Veteran has made statements that he has not received a full copy of his claims file. See March 2021 hearing testimony. The Board finds that remand is necessary prior to adjudication of the aforementioned claims to ensure that the Veteran has received a full copy of his claims file. Furthermore, the Veteran in his March 2021 hearing testimony indicated that some private medical records regarding his treatment may not be of record. Attempts to obtain any relevant private medical treatment should be made. Also, the Veteran asserted that his bilateral hips condition might be related to the service connected condition of his low back. A VA examination regarding the possible link between the Veteran's back and hips is warranted. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Finally, the Veteran has requested the curriculum vitae (CVs) of the VA examiners who have performed his examinations. To the extent possible, CVs should be provided to the Veteran. The matters are REMANDED for the following action: 1. Provide to the Veteran a complete copy of his claims file. Documentation that a complete copy of the claims file was provided to the Veteran must be associated with the record. 2. Contact the Veteran and afford him the opportunity to identify by name, address, and dates of treatment or examination any relevant private medical treatment records for his claimed disabilities. After securing the proper authorizations where necessary, arrange to obtain all the records of treatment or examination from all the sources listed by the Veteran that are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making two efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed disability of the Veteran's right and/or left hip. The claims file, including a copy of this Remand, must be made available to the examiner and the examiner should indicate in his/her report whether or not such was reviewed. All necessary tests and studies should be accomplished. The examiner should identify whether the Veteran has any diagnosed disability associated with his right and/or left hip and must opine whether any such diagnosed disability is at least as likely as not (50 percent or greater probability) proximately due to or aggravated beyond its natural progression by the Veteran's service connected low back disability. The Veteran's lay assertions as to onset and continuity of symptomatology, including his March 2021 hearing testimony, should be recorded, and considered. A rationale for all opinions must be provided. 4. Provide to the Veteran, if possible, a curriculum vitae of the VA examiners who have performed examinations on his low back, right shoulder, and bilateral hips. 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.