Citation Nr: 21068814 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 16-31 196 DATE: November 15, 2021 ORDER Entitlement to service connection for idiopathic trigeminal neuralgia is dismissed. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. At his August 2021 Board hearing, the Veteran indicated that he was withdrawing the issue of entitlement to service connection for idiopathic trigeminal neuralgia. 2. Resolving all doubt in favor of the Veteran, his tinnitus is etiologically related to acoustic trauma sustained during active service. CONCLUSIONS OF LAW 1. The criteria for withdrawal for entitlement to service connection for idiopathic trigeminal neuralgia have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1989 to June 1992, to include service in Southwest Asia. The Veteran's awards and decorations for his service include a Combat Infantryman Badge among others. These matters come to the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) Nashville, Tennessee. Jurisdiction of this appeal is currently with the RO in Nashville, Tennessee. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ) of the Board in August 2021. A transcript of the hearing has been associated with the claims file. Following the hearing, the record was held open for 60 days to allow for the submission of additional evidence. Withdrawal of Claim An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55.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/her authorized representative. 38 C.F.R. § 19.55. At his August 4, 2021 Board hearing, the Veteran indicated that he no longer wished to pursue his appeal of entitlement to service connection for idiopathic trigeminal neuralgia and that he wanted to withdrawal his appeal as to his claim. 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. This request for withdrawal of the issue on appeal meets the content, form, and timing requirements of 38 C.F.R. § 19.55(b) and is, therefore, deemed a withdrawal of the claim. See 38 C.F.R. § 19.55(c); see also Hembree v. Wilkie, 33 Vet. App. 1 (2020). As a result, no allegation of error of fact or law remains before the Board for consideration with regard to this issue. Accordingly, the Board does not have jurisdiction over this issue, and the claim for entitlement to service connection for idiopathic trigeminal neuralgia is dismissed. Service Connection Tinnitus The Veteran asserts that he has tinnitus as a result of his active service. Specifically, the Veteran asserts that tinnitus had its onset during active service and has continued since as a result of exposure hazardous noise during active service. In that regard, the Veteran asserts he had hazardous noise exposure pursuant to his duties in as an infantryman; exposure to small arms fire, demolitions, armored vehicles, and constant indirect fire; paratrooper and loud jet noises; tank noise during Operation Desert Storm; and deployment in Southwest Asia. See Notice of Disagreement, October 2, 2015; see Board hearing transcript, August 4, 2021. Service connection may be granted 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(a). Service connection requires: (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). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Initially, the Board notes that post-service treatment records confirm a diagnosis of tinnitus. See VA examination report, August 19, 2015. Additionally, a review of the Veteran's DD Form 214 shows the Veteran's military occupational specialty (MOS) during active service included infantryman, showed service in Southwest Asia, and he was awarded a Combat Infantryman Badge. The Board finds that the Veteran's reported noise exposure is consistent with the facts and circumstances of his service. See 38 U.S.C. § 1154(b). Therefore, the Board concedes that the Veteran sustained acoustic trauma during active service. Service treatment records are silent for complaints of, treatment for, or a diagnosis of tinnitus while the Veteran was in active service. Regardless of the lack of reported tinnitus in the service treatment records, the Veteran has reported that he first experienced tinnitus while in active service and that his symptoms have continued since that time. The Veteran is competent to report when he first experienced symptoms of tinnitus and that his symptoms have continued since service. Moreover, the Board finds the Veteran to be credible in that respect. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). With regards to direct service connection, an August 2015 VA examiner opined that the Veteran's tinnitus was less likely than not caused by or a result of his military noise exposure. In that regard, the examiner noted that the date of onset of tinnitus was eight years prior, many years after separation from service, and that he had normal hearing at his separation examination. Additionally, the VA examiner noted the Veteran had civilian noise exospore from factory work. Therefore, there was not enough evidence to support tinnitus due to military noise exposure. However, this opinion relied on inaccurate facts, namely that the Veteran's symptoms of tinnitus began after separation of active service, and did not take into consideration the Veteran's lay statements and contentions that tinnitus had its onset during active service and have continued since. See Reonal v. Brown, 5 Vet. App. 460, 461 (1993) (an opinion based on an inaccurate factual premise has no probative value). This opinion is therefore afforded little, if any, probative weight. Of record are August 2021 statements submitted by the Veteran's wife, T.D., and his friend, M.M. In those statements. T.D. and M.M. indicated the Veteran complained of difficulty hearing and constant ringing in his ears that began during active service and continued since, resulting in interrupted sleep and difficulty understanding speech. As noted above, the Veteran has consistently reported that he has experienced tinnitus during active service as a result of hazardous noise exposure sustained during active service, that has continued since. See Notice of Disagreement, October 2, 2015; see Board hearing transcript, August 4, 2021. In sum, the Veteran has competently and credibly reported symptoms of tinnitus that began during active service and have continued since that time. The Veteran has a current diagnosis of tinnitus. There is one medical opinion against the claim that is not probative. In contrast, there are competent and credible lay statements in support of the Veteran's claim. Moreover, there is no sufficient basis for the Board to reject this supportive lay statements and to further develop the claim. Cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (holding that, because it is not permissible for VA to undertake additional development to obtain evidence against a Veteran's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). Accordingly, the Board finds that the evidence for and against the claim of entitlement to service connection tinnitus is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.