Citation Nr: 21064787 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 17-05 947 DATE: October 21, 2021 ORDER Service connection for bilateral hearing loss is granted. Service connection for flat feet is granted. FINDING OF FACT The evidence of record is in equipoise as to whether the Veteran's bilateral hearing loss and flatfeet were related to or aggravated by his active duty service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss and flatfeet are met. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.3.09, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1965 to December 1968. He is the recipient of the Vietnam Campaign Medal and the Vietnam Service Medal. In July 2021, the Veteran testified before the undersigned Veterans' Law Judge. A copy of the transcript is associated with the record. At the outset, the Board notes that in the July 2021 hearing the Board erroneously listed the issues on appeal as including claims for service connection for tinnitus and an acquired psychiatric disorder. In January 2017, a Statement of the Case (SOC) denied service connection for bilateral hearing loss, tinnitus, an acquired psychiatric disorder, and flat feet. Following that SOC, in both January 2017 and February 2017, the Veteran filed Appeal to Board of Veteran's Appeals, Form 9s. In the January 2017 Form 9, the Veteran checked box A which indicated that he was only appealing the issue of service connection for flat feet. In the February 2017 Form 9 the Veteran checked box A again indicating that he was only appealing the issue of service connection for bilateral hearing loss. Thus, the Veteran's two Form 9's did not appeal the issues of service connection for tinnitus or an acquired psychiatric disorder. There are no other Form 9s or other documents which could be construed as such regarding the issues of service connection for tinnitus and/or an acquired psychiatric disorder. The June 2017 Certification of Appeal, Form 8, did not certify these issues to the Board. Instead, the Board mistakenly included the issues of service connection for tinnitus and an acquired psychiatric disorder when hearing testimony in July 2021. As such, the Board notes that it does not have jurisdiction over the issues of service connection for tinnitus and an acquired psychiatric disorder. In so finding, the Board has considered Percy v. Shinseki, 23 Vet. App. 37 (2009), which addressed jurisdiction over untimely appeals. However, unlike the circumstances in Percy, this issue is not about a substantive appeal being inadequate or untimely. Rather, the Board is finding that no substantive appeal regarding the issues of service connection for tinnitus and/or an acquired psychiatric disorder exists. As such, the Board did not and does not have jurisdiction over these issues. The Board sincerely regrets any confusion and misunderstanding that this may cause to the Veteran. Service Connection Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). In deciding the Veteran's claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Bilateral Hearing Loss Flatfeet The Veteran has submitted medical records which related his bilateral hearing loss and flat feet to his active duty service. See June 2010, April 2012, January 2017, and February 2017 private medical records. The records were from treating physicians and providers who had reviewed the Veteran's service treatment records (STRs), the Veteran's lay statements, and other evidence in providing their opinions. The statements upon which the providers based their opinions regarding onset and continuity of symptomology have not been disproven and are credible. The record also contains medical opinions from VA examiners who found the Veteran's conditions were not related to his active duty service. See November 2012 and May 2011 VA examinations. As such, the Board finds that the evidence of record is in equipoise as to the etiology of the Veteran's bilateral hearing loss and flat feet. As there is an approximate balance of positive and negative evidence regarding the etiology of these conditions, the benefit of the doubt is afforded to the Veteran and service connection for bilateral hearing loss and flatfeet is granted. Accordingly, resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for bilateral hearing loss and flatfeet is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 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.