Citation Nr: 21066126 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 17-30 225 DATE: October 28, 2021 ORDER Service connection for tinnitus is granted. Service connection for sleep apnea is dismissed. REMANDED Service connection for a right knee disability is remanded. Service connection for a neurological disability of the right hand is remanded. Service connection for a neurological disability of the left hand is remanded. FINDINGS OF FACT 1. The Veteran provided competent reports of a current diagnosis of tinnitus and continuous symptomology since separation from service. 2. On July 14, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he requested to withdraw the issue of service connection for sleep apnea. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137; 38 C.F.R. §§ 3.303, 3.304; 3.307; 3.309. 2. The criteria for withdrawal of the issue of service connection for sleep apnea 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 1977 to June 1980 and from October 1981 to January 1993. These matters come to the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal is being adjudicated under the legacy appellate framework. The Veteran testified at a personal hearing before the Board in July 2021, and a transcript of the hearing is of record. 1. Service connection for tinnitus is granted. At issue is whether the Veteran is entitled to service connection for tinnitus. The weight of the evidence indicates that the Veteran is entitled to service connection. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. "Service connection" means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection can be established through application of statutory presumptions, including for chronic diseases like organic diseases of the nervous system including tinnitus, when manifested to a compensable degree within a year of separation from service; or there is continuity of symptomology since separation from service. 38 C.F.R. §§ 3.307, 3.309. The Veteran indicated that he began to manifest tinnitus due to military noise exposure; and tinnitus continued to manifest ever since. See Charles v. Principi, 16 Vet. App. 370 (2002). As such, the primary role of the Board in adjudicating the tinnitus claim, is to assess the credibility of the Veteran's statements. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case, the Board finds the Veteran's reports as to the onset of his tinnitus credible, and he has credibly reported that his tinnitus began in-service and has continued to the present time. The Veteran has not attempted to bolster or exaggerate his symptoms. Therefore, the evidence in this case is evenly balanced enough so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. As such, the criteria for service connection for tinnitus have been met. 2. Service connection for sleep apnea is dismissed. 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. § 19.55. Withdrawal may be made by the Veteran or by his authorized representative. Id. In the present case, at his July 2021 Board hearing, Veteran has withdrew the claim for service connection for sleep apnea and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the issue, and it is dismissed. REASONS FOR REMAND 1. Service connection for a right knee disability is remanded. 2. Service connection for a neurological disability of the right hand is remanded. 3. Service connection for a neurological disability of the left hand is remanded. At issue is whether the Veteran is entitled to service connection for a right knee disability and a neurological disability of both hands. The Veteran testified at a personal hearing before the Board in July 2021 that the Veteran manifested symptoms of the right knee and in both hands all of which he attributed to physical activity during his period of service. See Transcript. The Veteran was previously provided a VA examination evaluating the Veteran's claims in January 2013. The examiner indicated that the Veteran did not have a diagnosis of the right knee and both hands. It is unclear from the record whether or not the Veteran still does not have a diagnosis of the right knee and both hands, or whether or not the Veteran did not meet the criteria for a formal diagnosis in January 2013 but does now. Even if the Veteran does not meet the criteria for a formal diagnosis moreover, since the January 2013 examination the Court of Appeals for Veterans Claims has clarified that pain without a formal diagnosis can be considered a disability for VA compensation purposes. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Once VA undertakes the effort to provide the Veteran with a VA examination, it must provide the Veteran with an adequate one, and an adequate examination is sufficiently detailed to ensure that the evaluation of the Veteran's claim is fully formed. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, this matter must be remanded in order to address the above concerns. The matters are REMANDED for the following action: Arrange to provide the Veteran with a VA examination in order to address the following: (a.) Is it at least as likely as not (50 percent or more) that the Veteran has a diagnosis of a right knee disability? Why or why not? (b.) Is it at least as likely as not (50 percent or more) that the Veteran has a diagnosis of a right hand disability? Why or why not? (c.) Is it at least as likely as not (50 percent or more) that the Veteran has a diagnosis of a left hand disability? Why or why not? (d.) Is it at least as likely as not (50 percent or more) that the Veteran has right knee pain sufficient to interfere with employment? Why or why not? (e.) Is it at least as likely as not (50 percent or more) that the Veteran has right hand pain sufficient to interfere with employment? Why or why not? (f.) Is it at least as likely as not (50 percent or more) that the Veteran has left hand pain sufficient to interfere with employment? Why or why not? (g.) Is it at least as likely as not (50 percent or more) that a medical nexus exists between an in-service incurrence and a right knee disability or right knee pain? Why or why not? (h.) Is it at least as likely as not (50 percent or more) that a medical nexus exists between an in-service incurrence and a right hand disability or right hand pain? Why or why not? (i.) Is it at least as likely as not (50 percent or more) that a medical nexus exists between an in-service incurrence and a left hand disability or left hand pain? Why or why not? DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David R. Seaton, 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.