Citation Nr: 21066305 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 16-58 556A DATE: October 29, 2021 ORDER Entitlement to a rating in excess of 10 percent for service-connected bilateral hearing loss is dismissed. Entitlement to service-connected for posttraumatic stress disorder (PTSD) is granted. FINDINGS OF FACT 1. During his February 2021 virtual hearing before the Board, prior to the promulgation of a decision in this appeal, the Veteran withdrew his claim for entitlement to a rating in excess of 10 percent for service-connected bilateral hearing loss. 2. The Veteran's diagnosed PTSD is linked to his military service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to a rating in excess of 10 percent for service-connected bilateral hearing loss by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for entitlement to service-connected for PTSD have been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from June 1960 to June 1964. This appeal comes to the Board of Veterans' Appeals (Board) from a June 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified at a virtual hearing held before the undersigned Veterans Law Judge. A transcript of the hearing is of record. During the hearing the Veteran waived agency of original jurisdiction consideration of evidence submitted after the November 2016 statement of the case (SOC). Also, the undersigned Veterans Law Judge granted the Veteran's motion to hold the record open for 90 days after the hearing for the submission of additional evidence. After the hearing, in March 2021, additional evidence was submitted. AOJ consideration of this evidence has been waived. Withdraw 1. Entitlement to a rating in excess of 10 percent for service-connected bilateral hearing loss. The Board may dismiss any appeal that 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55.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 by the appellant or authorized representative. 38 C.F.R. § 19.55; Anderson v. Brown, 9 Vet. App. 542 (1996). An oral withdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25 Vet. App. 45 (2011); Hanson v. Brown, 9 Vet. App. 29 (1996). During the February 2021 virtual hearing before the Board, the Veteran and his attorney indicated they were no longer appealing his claim for an increased rating for bilateral hearing loss. Their statement of intention to withdraw the appeal of this claim satisfies the requirements for withdrawal. Although the Court of Appeals for Veterans Claims (Court) has distinguished written withdrawals from those, instead, done on the record orally during a hearing, here, the record shows the Veteran decided to withdraw the appeal of this claim after discussion with his representative, who is an attorney, and the request to withdraw the appeal of an increased rating for bilateral hearing loss "explicit, unambiguous, and done with a full understanding of the consequences of such action." DeLisio, 25 Vet. App. at 57; see also Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Thus, as he has withdrawn his appeal of this claim, there remain no allegations of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction over the claim for an increased rating for bilateral hearing loss and, consequently, it is dismissed. Service Connection 2. Entitlement to service-connected for PTSD. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f). The Veteran is seeking service connection for PTSD. The Veteran contends that his PTSD was caused by his in-service stressors. While the Veteran was stationed at the Seymour Johnson Air Force Base in Goldsboro, North Carolina around 1961, a B-52 crashed approximately 20 miles from the Air Force Base. The B-52 was carrying two nuclear bombs. In the early morning of that day, the Veteran, along with other airmen, was transported to the crash site. The Veteran was told to "police the area" and had to clean up debris surrounding the area. He was afraid that the bombs might detonate. Also, while the Veteran was working on a B-52 engine on the flight line, he witnessed a fellow airman sucked into a fighter jet engine and observed blood spray out. The Veteran reported that he still had nightmares about the experience. Another incident occurred while the Veteran was working on the flight line on an aircraft during a thunderstorm. There was a pilot standing nearby a fighter jet. Suddenly, a lightning bolt struck the pilot. The Veteran stated that he would never forget the incident. See October 2014 Statement in Support of Claim for PTSD and February 2021 Hearing Transcript. Service treatment records are silent for any signs, symptoms, treatment for, or diagnosis of a psychiatric disorder. On the Veteran's June 1960 Report of Medical Examination for enlistment, the physician noted that the Veteran's clinical psychiatric evaluation was normal. Additionally, the Veteran's June 1964 Report of Medical Examination for separation was silent for any psychiatric disorders. In May 2015, a response was received from the Defense Personnel Records Information Retrieval System (DPRIS) regarding the verification of the Veteran's stressor. DPRIS responded that it researched the January 1961 history submitted by the 4241st Strategic Wing (SW), the higher headquarters of the 4241st Field Maintenance Squadron (4241st FMS), stationed at Seymour Johnson Air Force Base (AFB), North Carolina. The history verified that on January 24, 1961, a 4241st SW B-52G Stratofortress carrying a combat ready crew of eight came apart in mid-air. Three of the crew did not survive the accident. All crew members were assigned to the 73rd Bombardment Squadron (73rd BS). The B-52G broke up in flight and crashed twelve nautical miles northeast of Seymour Johnson AFB. Prior to striking the ground, the B-52G broke into large sections, scattering its wreckage over a four-mile area. Within a few hours after the crash, one weapon was found intact with the nose buried about two feet vertically in the ground. The second weapon was embedded in a hole approximately fifteen feet deep and twenty feet in diameter. The first weapon recovered was relatively undamaged and was removed to the munition's storage area. Explosive Ordnance personnel from the wing assisted by base and Air Material Command EOD technicians began recovery operations of the second weapon. Unfortunately, the history did not specifically document that the Veteran was involved in policing the area of the crash. In May 2015, VA issued a memorandum regarding the formal finding of a lack of evidence required to corroborate stressors associated with a claim for service connection for PTSD. VA determined that there was a lack of sufficient information in the claim folder to document the involvement of the Veteran with his claimed stressful events. All procedure to obtain the information from the Veteran had been properly followed. Evidence of written and telephonic efforts to obtain this information was in the file. All efforts to obtain the needed information were exhausted, and any further attempts would be futile. On March 11, 2015, a request was made to the Joint Services Research Records Center (JSRRC) for further development regarding the Veteran's involvement in the claimed stressful events. On May 18, 2015, VA received a response from the JSRRC stating that the events as described by the Veteran on January 24, 1961, did in fact take place. However, JSRRC could only confirm that the following personnel were detailed to assist in recovery: Explosive Ordnance personnel and Air Material Command EOD technicians. The Veteran's military occupational specialty was Aircraft Pneudraulics Repairman Technician as per the Veteran's military personnel records and DD 214. The Veteran noted two (2) other stressful events on his VA Form 21-0781; however, he stated that he could not recall the dates or names of those involved. VA concluded that there was not enough information available to request additional research of those events by JSRRC. In March 2021, the Veteran's attorney submitted a copy of sections of a book detailing the airplane crash and follow-up. The attorney stated that the book supported the Veteran's testimony that numerous Air Force personnel, including the Veteran, and not just EOD experts were at the site when the nuclear weapons were still at risk of exploding. See March 2021 Correspondence. The Board finds that the Veteran's statements regarding the airplane crash incident to be credible. The Veteran's DD 214 shows that the Veteran was stationed at the Seymour Johnson Air Force Base in Goldsboro, North Carolina during the time that the airplane crash occurred. The Veteran's MOS was Aircraft Pneudraulics Repairman Technician. Although DPRIS documentation did not specifically document that the Veteran was involved in policing the area of the crash, the Veteran's attorney presented evidence from a book about the bomb incident that there were numerous Air Force personnel and not just EOD experts at the site when the nuclear weapons were still at risk of exploding. Thus, the Board finds that it is more likely than not that the Veteran was at the scene of the aftermath of the airplane crash. The Veteran's stressor is credible. Furthermore, combined with the unit history provided with previous research, the Board finds that the Veteran's stressor has been verified for VA purposes. In June 2016, the Veteran submitted a PTSD Disability Benefits Questionnaire (DBQ). The physician diagnosed the Veteran with unspecified trauma and stress-related disorder and PTSD. VA treatment records show that the Veteran had a history of PTSD diagnosis. An April 2018 mental health outpatient note showed that a physician diagnosed the Veteran with PTSD under DSM-5. The Board finds that the Veteran's current PTSD is linked to his in-service stressor. In a January 2016 VA mental health outpatient note, a physician opined that based on the Veteran's history involving a number of traumatic experiences, including some horrible violent deaths and an assignment to guard and clear debris at a site where a B-52 bomber and its two armed nuclear warheads crashed, the physician had no doubt that the Veteran's PTSD developed during his time of active duty, regardless of whether it was later aggravated by many years of police work. This positive medical opinion is adequate and probative in value. The physician considered the Veteran's in-service stressor in rendering the opinion. Thus, it weighs in favor of the Veteran's claim. There are no negative medical opinions of record to weigh against the Veteran's claim for service connection for PTSD. Accordingly, after resolving any reasonable doubt in the Veteran's favor, the Board finds that entitlement to service connection for PTSD must be granted. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Crawford, 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.