Citation Nr: 21064080 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 19-14 731 DATE: October 19, 2021 ORDER Entitlement to service connection for tinnitus is granted. The claim for entitlement to a disability rating higher than 70 percent for posttraumatic stress disorder (PTSD) has been withdrawn. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a back disability is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, tinnitus was incurred as a result of service. 2. Prior to the promulgation of a final decision by the Board, the Veteran withdrew his appeal for entitlement to a disability rating higher than 70 percent for PTSD. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for withdrawal of the claim of entitlement to a disability rating higher than 70 percent for PTSD by the appellant 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 June 2002 to June 2006, with additional service in the Navy Reserves until August 2009 In May 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Service Connection 1. Entitlement to service connection for tinnitus Service connection may be established for a 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 means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). To be "shown in service," the disease identity must be established and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303 (b). There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he developed tinnitus due to excessive noise exposure during the performance of his duties as an aircraft handler working on the flight deck. In statements and at hearing, he described exposure to excessive noise from refueling, repairing, rearming, launching and recovery operations. Specific noise generating equipment associated with flight operations also included jet blast deflector movements, water brakes used to stop the catapult shuttle and arresting ear movement. He used thin earpieces for protection. The Veteran testified that he initially became aware of ringing in his ears during service. The Veteran's personnel records confirm that he served as a flight deck plane handler during service. The Veteran is competent to testify to observable symptoms such as ringing in his ears and has done so credibly during the course of this claim, and a VA examiner in April 2017 appeared to have found the Veteran's account of current tinnitus credible. Layno v. Brown, 6 Vet. App. 465 (1994); Charles v. Principi, 16 Vet. App. 370 (2002) (finding a lay person competent to identify tinnitus). Thus, a current disability has been established. Additionally, the Board finds that the Veteran's competent lay account of having been exposed to military noise is consistent with his military occupational specialty. Given that the Veteran is competent to report both exposure to military noise and hearing problems thereafter (as these are experiences capable of lay observation, for which no specific expertise is required), and given that the Veteran's reports of incurring this in-service acoustic trauma are consistent with the circumstances of his service, and have remained consistent over time, the Board concludes that his in-service exposure to acoustic trauma is established. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (a lay person is competent to report symptoms based on personal observation when no special knowledge or training is required). The service treatment records reflect that the Veteran was routinely noise exposed. The records do not document any complaints consistent with tinnitus. On VA examination in April 2017, the Veteran reported constant non-disabling tinnitus having onset approximately 10 years earlier. He did not identifya specific incident that preceded the onset of tinnitus. Reportedly he recalled ringing in the ears while working on the flight deck of aircraft carrier. The examiner opined that the Veteran's tinnitus was less likely as not caused by or a result of noise exposure in the military. The examiner explained that tinnitus could occur following a single exposure to high-intensity impulse noise, long-term exposure to repetitive impulses, long-term exposure to continuous noise, or exposure to a combination of impulses and continuous noise. However, the assumption would be premised on the scientifically unsubstantiated theory that tinnitus occurred as a result of some latent, undiagnosed noise injury. A veteran is competent to describe observable symptoms such as ringing in the ears. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Charles, 16 Vet. App. 370, 374-75 (2002). The Veteran testified that he initially noted ringing in his ears during service. The Board is cognizant that, the VA examiner provided evidence against the claim. However, because there is a current diagnosis of tinnitus, statements from the Veteran regarding onset of tinnitus in service associated with in-service noise exposure, and in-service acoustic trauma has been conceded, the Board finds that the competent and credible assertions from the Veteran provides a nexus linking his current tinnitus to his in-service noise exposure, and the balance of positive and negative evidence is in relative equipoise. Resolving all reasonable doubt in the Veteran's favor, the Board finds that the competent and credible evidence creates a nexus between the Veteran's current tinnitus and active service. Therefore, service connection for tinnitus is granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-56. Withdrawal 2. Entitlement to a disability rating higher than 70 percent for PTSD The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 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. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by her or her authorized representative, and except where withdrawn on record at a hearing, must be in writing. 38 C.F.R. § 20.204. With regard to the appeal of entitlement to a disability rating higher than 70 percent for PTSD, the issue was withdrawn on record by the Veteran at his Board hearing in May 2021. The Veteran's oral statement during his hearing, memorialized in writing in the transcript, satisfies the requirements for the withdrawal of a substantive appeal. See, e.g., Tomlin v. Brown, 5 Vet. App. 355 (1993). There remain no allegations of errors of fact or law for appellate consideration as to that issue. Accordingly, as to the claim for entitlement to a disability rating higher than 70 percent for PTSD, the Board does not have jurisdiction to review the appeal and it is dismissed. REASONS FOR REMAND 1. Entitlement to service connection for a right knee disability is remanded. The Veteran asserts that his right knee was caused and/or aggravated by his service connected left knee disability. He contends that as a result of the service-connected left knee disability he developed an altered gait which caused him to develop a right knee disability. The Veteran underwent a VA examination in April 2017, and a nexus opinion report was obtained in May 2017. Examination of the right knee showed some limitation in the range of motion. Following an examination of the Veteran, the examiner opined that the claimed right knee disability was less likely than not proximately due to or the result of the Veteran's service connected left knee. The examiner based the opinion on the finding that there was no clinical evidence that the Veteran had a chronic right knee condition. The examiner did not address whether the Veteran's right knee disability was aggravated by his service connected left knee. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013). Consequently, an addendum opinion that adequately considers the aggravation prong of secondary service connection and direct causation must be obtained. Significantly, imaging studies of the right knee in August 2018 showed slight medial compartment degenerative change. 2. Entitlement to service connection for a back disability is remanded. The Veteran asserts that his back disability was caused by service, to include as due to general wear and tear of military activities. In statements and at hearing the Veteran asserted that while working extensively on the flight deck, sometimes as much as 16 hours per day, he carried heavy tow bars weighing 128 pounds and transported heavy chains on his back from aircraft to aircraft. He stated that transporting these chains affected his back in 2002, and his symptoms progressively worsened. In October 2014, the Veteran was seen for chronic upper and lower back pain. He reported onset of back symptoms in 2006, during service. Thereafter, pain in his back gradually worsened. In support of his claim, the Veteran submitted a May 2021 statement executed by Dr. S.H., wherein she reiterated the Veteran's belief that his right knee and back disorders were incurred in service. Dr. S.H.'s statement is insufficient to grant service connection for a back or knee disability. A transcription of lay history, which is not transformed into competent medical evidence simply because it was transcribed by a medical professional, whether that professional is VA or private. LeShore v. Brown, 8 Vet. App. 406 (1995). The opinion, however, is sufficient to reach the low threshold necessary to trigger the duty to assist as contemplated by McClendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, as a VA examination that addresses the Veteran's contentions has not yet been provided, the Board finds that an examination is warranted. The matters are REMANDED for the following action: 1. Request the Veteran to identify all medical providers (VA and private) from whom he has received treatment for the right knee and back disabilities on appeal, and complete and return an appropriate authorization form for each treatment provider identified. After obtaining the completed release forms, request all identified pertinent medical records (if any). If possible, the Veteran (or his representative) should get these records and submit them himself to expedite the case. This would help the Board greatly. 2. Schedule the Veteran for a VA examination to determine whether a right knee disability and/or back disability is related to service or the service-connected left knee disability. The Veteran's claims file should be made available to and reviewed by the examiner, and he or she must indicate whether such review was accomplished. Following a review of the relevant evidence, the examiner must address the following questions: a) The examiner should identify any right knee and back disorders found on examination. b) Is it at least as likely as not (50 percent or greater degree of probability) that any diagnosed right knee and/or back condition is related to service? c) Is it at least as likely as not (50 percent or greater degree of probability) that any diagnosed right knee and/or back condition was caused or aggravated by the service-connected left knee disability, to include as due to overcompensation and/or an altered gait/or and weight shifting? All findings, conclusions, and the rationale for all opinions expressed should be provided in a report. The examiner should consider all evidence, including lay statements regarding onset and continuity of symptoms, and must provide a complete rationale for all opinions expressed. Please note that an examiner's report that she/ he cannot provide and opinion without resort to mere speculation is inadequate unless the examiner provides a rationale for that statement. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.