Citation Nr: 21074016 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 18-21 063 DATE: December 14, 2021 ORDER Entitlement to service connection for tinnitus is granted. The appeal regarding entitlement to service connection for a bilateral eye condition is dismissed. REMANDED Entitlement to an initial rating in excess of 10 percent for residuals of left small finger tendon laceration, status post distal interphalangeal (DIP) joint fusion is remanded. FINDINGS OF FACT 1. The Veteran's tinnitus had its onset during active service. 2. On the record at the November 2021 Board hearing, the Veteran, through his representative, explicitly, unambiguously, and with the full understanding of the consequences of such action, withdrew his appeal regarding entitlement to service connection for a bilateral eye condition. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for withdrawal of the appeal regarding entitlement to service connection for a bilateral eye condition by the Veteran, through his representative, are 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 in the United States Army from August 1978 to February 1984 and July 1985 to October 1991. This matter comes before the Board of Veterans' Appeals (Board) from August 2013 and October 2014 rating decisions by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In November 2021, the Veteran testified before the undersigned Veterans Law Judge at a virtual Board hearing. At the outset, the Board notes that the Veteran's substantive appeal did not explicitly include the issue of an increased rating for his left finger disability. An April 2018 Statement of the Case (SOC) granted, in relevant part, a rating of 10 percent for the Veteran's left finger disability. The Veteran filed a substantive appeal (VA Form 9) to this SOC in April 2018 and checked the box for "I am only appealing these issues." In the space provided, the Veteran then identified only the issues of tinnitus and a bilateral eye condition. He did not identify an increased rating for a left finger disability as an issue to be appealed. A substantive appeal must be filed within 60-days from the date the AOJ mailed a claimant the SOC (or within the remainder of the one-year period from the date of mailing of the rating decision being appealed, whichever period ends later). 38 C.F.R. §§ 20.200, 20.300, 20.302. Otherwise, the rating decision becomes final. 38 C.F.R. § 20.1103. However, the filing of a timely substantive appeal, as opposed to a Notice of Disagreement, is not a bar to the Board's jurisdiction. Therefore, the Board can implicitly or explicitly waive the issue of timeliness with regard to a substantive appeal. See Evans v. Shinseki, 25 Vet. App. 7, 12 (2011). Nonetheless, the Board may decline to exercise jurisdiction over an appeal, if a substantive appeal was not timely filed. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). The United States Court of Appeals for Veterans Claims has held that the 60-day period in which to file a substantive appeal is not jurisdictional, and VA may waive any issue of timeliness in the filing of a substantive appeal, either explicitly or implicitly. Percy, 23 Vet. App. at 45. Although the Veteran limited his VA Form 9 to the issues of tinnitus and an eye condition, which could be interpreted as an implied withdrawal of other issues adjudicated in the SOC (i.e., rating for the left finger disability), the Board finds there is no bar to exercising jurisdiction over this issue. In this regard, the Board notes an April 2018 Statement in Support of Claim filed the same day as the Veteran's VA Form 9 in which he states that he had not been scheduled for a hand examination. The Board construes this statement as indicative of the Veteran wanting to continue his appeal of the left finger disability rating. In this regard, the SOC was not based on a recent C&P examination. In fact, the SOC noted that the Veteran failed to report to his C&P examination. Thus, the Veteran's April 2018 Statement in Support of Claim asserting that he never received notice of a scheduled C&P examination constitutes an argument (or desire to appeal) the findings of the April 2018 SOC. Accordingly, although the VA Form 9 was explicitly limited to tinnitus and an eye condition, the Board finds that it has jurisdiction over the issue of entitlement to an increased rating for a left finger disability. Percy, 23 Vet. App. at 45. 1. Entitlement to service connection for tinnitus is granted. The Veteran relates his tinnitus to hazardous noise exposure in service. See November 2021 Board hearing transcript; April 2018 VA Form 9; August and October 2013 VA audiology progress notes. The Board agrees. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a), including tinnitus (categorized as an organic disease of the nervous system), may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service or if demonstrated by continuous symptomatology from service separation. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309; Fountain v. McDonald, 27 Vet. App. 258, 272 (2015). The option of establishing service connection through a demonstration of continuity of symptomatology is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Regarding the first element of service connection, a current disability, tinnitus is "a noise in the ear, such as ringing, buzzing, roaring, or clicking." See Dorland's Illustrated Medical Dictionary 1956 (31st ed. 2007). Because of its inherently subjective nature, a layperson, such as the Veteran, is considered competent to report the observable manifestations of tinnitus. See Charles v. Principi, 16 Vet. App. 370 (2002) (holding that tinnitus is subjective and the kind of condition lay testimony is competent to describe). In this regard, the Veteran has competently and credibly reported the presence of tinnitus and has been diagnosed with the same. See November 2021 Board hearing transcript; August and October 2013 VA audiology progress notes; August 2013 C&P examination. Accordingly, the first element of service connection is met. Regarding the second element of service connection, in-service incurrence, the Veteran relates his tinnitus to hazardous noise exposure incurred during his second period of active duty. See April 2018 VA Form 9; August 2013 C&P examination. The Veteran's military occupational specialty during this period was unit level communications maintainer, which involved working in supply and radio repair. See August 2013 C&P examination; DD Form 214. The Veteran has reported that during his second period of active duty he frequently worked around tanks and armored personnel carriers and was exposed to the sound of gunfire. See November 2021 Board hearing transcript; August and October 2013 VA audiology progress notes; August 2013 C&P examination. The Board finds the Veteran's reports of in-service hazardous noise exposure to be credible and consistent with the places, types, and circumstances of his active service. 38 U.S.C. § 1154(a). Thus, the second element of service connection is met. The first two elements of service connection having been met, this case turns on a causal relationship between the current disability and in-service incurrence, otherwise known as a nexus. There are no nexus opinions of record. The August 2013 C&P examiner stated that she could not provide a medical opinion as to the etiology of the Veteran's tinnitus without resorting to speculation because she did not have access to the Veteran's service treatment records (STRs) to confirm his reports that tinnitus began in service. This statement is of no probative value, as there is no requirement that the STRs must contain reports of tinnitus in order to grant service connection. Remand for an addendum opinion, however, is not necessary as the record contains sufficient probative evidence of continuous symptomatology since service. In this regard, the Veteran has consistently reported that his tinnitus began during his second period of active duty and has continued to the present. Specifically, the Veteran reported that his tinnitus began approximately two years before finishing his second period of active duty, or around 1990. See August and October 2013 VA audiology progress notes; August 2013 C&P examination; see also November 2021 Board hearing transcript; April 2018 VA Form 9; August 2011 VA Form 21-526. The Board finds these consistent reports to be credible, probative, and in favor of granting the claim. Accordingly, all elements of service connection for tinnitus are met, and the benefit sought on appeal is granted. 2. Entitlement to service connection for a bilateral eye condition is dismissed. The Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. Here, on the record at the November 2021 Board hearing, the Veteran's representative specifically withdrew the appeal regarding entitlement to service connection for a bilateral eye condition and acknowledged that he would not be entitled to compensation for an eye disability by withdrawing his appeal as to this issue. As the Veteran, through his representative, has explicitly, unambiguously, and with the full understanding of the consequences of such action withdrawn his appeal of this issue, there remain no allegations of error of fact or law for appellate consideration on this issue. 38 U.S.C. § 7105; 38 C.F.R. § 19.55; see also Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Thus, the Board does not have the jurisdiction to review the appeal regarding entitlement to service connection for a bilateral eye condition, and it is dismissed. REASONS FOR REMAND 3. Entitlement to a rating in excess of 10 percent for percent for residuals of left small finger tendon laceration, status post DIP joint fusion is remanded. The Veteran asserts that his service-connected left finger disability warrants an increased evaluation. See November 2021 Board hearing transcript. He has also asserted additional disabilities potentially related to his service-connected left-hand disability. Id. Given the length of time since the last C&P examination addressing the Veteran's disability August 2013, remand is warranted to obtain an updated examination. In addition, the Veteran credibly testified at the November 2021 Board hearing about additional symptoms related to his service-connected left finger condition that require further development on remand. Id. See Morgan v. Wilkie, 31 Vet. App. 162, 164 (2019). Updated VA and private treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records, specifically from the Dayton VA facility. 2. With any necessary assistance from the Veteran, obtain any outstanding pertinent private treatment records, specifically records of left little finger surgical treatment referenced by the Veteran at the November 2021 Board hearing. 3. Then schedule the Veteran for a VA examination with an appropriate clinician to address the nature and severity of his service-connected left-hand disability. The entire claims file must be made available to and reviewed by the examiner, to include any records obtained pursuant to this remand and the November 2021 Board hearing transcript. All finding should be reported in detail. The examiner is specifically asked to consider and discuss the Veteran's credible reports of left-hand weakness and grip problems. The examiner must also consider and discuss the Veteran's reports of middle and fourth fingers affected from the same in-service injury (electrocution) that injured his service-connected left small finger. The examiner is asked to address the following: (a.) Indicate whether the Veteran's left little finger loss of function is the functional equivalent of amputation with metacarpal resection (more than one-half the bone lost) of the left fourth finger. (b.) Conduct any necessary grip and strength testing to address the Veteran's reports of grip problems and weakness. (c.) Identify any additional disabilities affecting the Veteran's left middle and fourth fingers and the left elbow. (d.) Opine whether any disabilities identified pursuant to (c.) above are at least as likely as not (50 percent probability or greater) are: (1) caused by or otherwise related to the conceded in-service electrocution injury; (2) proximately due to the Veteran's service-connected left finger disability; or (3) aggravated (worsened) by the Veteran's service-connected left finger disability. A robust rationale must be given for all opinions and conclusions. If unable to opine without resorting to speculation, please provide a basis for reaching this conclusion. 4. Upon readjudication, consider the Veteran's entitlement to a temporary total rating following his left little finger surgery. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. deBruyn, Associate 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.