Citation Nr: 21076054 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 18-42 567 DATE: December 22, 2021 ORDER Entitlement to service connection for depression is dismissed. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for diabetes, to include as secondary to service-connected disabilities, is remanded. FINDINGS OF FACT 1. Prior to the promulgation of decision in this matter, in October 2018 and August 2021, the Veteran indicated he wished to withdraw his appeal regarding entitlement to service connection for depression. 2. The Veteran does not have bilateral hearing loss for VA purposes that was incurred in or due to his time in service. 3. Resolving all doubt in favor of the Veteran, his tinnitus was incurred during his time in service. CONCLUSIONS OF LAW 1. The criteria for dismissal of entitlement to service connection for depression have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.385. 3. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1983 to July 2005. These matters are on appeal from an April 2018 rating decision by a Department of Veterans Affairs (VA) regional office (RO). The Veteran had a hearing before the undersigned Veterans Law Judge in August 2021. A transcript has been associated with the file. Dismissed Claim The Veteran or his representative may withdraw an appeal as to any or all issues on appeal. Except for appeals withdrawn on the record at a hearing, withdrawal must be in writing. A withdrawal is effective when received provided that receipt is prior to the issuance of a decision by the Board. Withdrawal of a claim constitutes a withdrawal of the notice of disagreement and, if filed, the substantive appeal. 38 C.F.R. § 19.55. In an October 2018 correspondence, the Veteran indicated his desire to withdraw his appeal pertaining to his entitlement to service connection for depression. The withdrawal is in writing and has been associated with the Veteran's claims file. This withdrawal was confirmed at his August 2021 hearing. Therefore, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the issue on appeal and it is dismissed. Service Connection Claim Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To establish service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310. On the question of continuity of symptomatology, evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303 (b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2014). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is 0 to 20 decibels. The Veteran contends he has bilateral hearing loss and tinnitus that were incurred in or due to his time in service. Specifically, in his August 2021 hearing, the Veteran said there were three instances in service where he was in the honor guard and had to do a 12 gun salute as part of funeral services. During these 21 gun salutes, the Veteran said he was sometimes given ear plugs, but they didn't give a lot of protection. The Veteran said his tinnitus began within a "couple of years of being in the military." The Veteran said it was one of those things he disregarded, but he would notice it. The Veteran now has to ask people to repeat themselves and has to ask people to speak up. After service, the Veteran performed administrative work and was not exposed to any acoustic trauma, except for working at General Motors after service, but it was 90 percent in an office environment. (See also June and September 2008 statements.) The Veteran said his tinnitus began in 2002 while in Japan working on the flight line around fighter jets. The Veteran said when he left service, he didn't know about tinnitus and just though it was normal. The Veteran said that when he worked at General Motors after service, he was in an administrative position and when he went onto the assembly floor, he used extensive hearing protection. (See September 2018 statement.) In September 2008, the Veteran's daughter submitted a statement saying that over the past five years, the Veteran's hearing had deteriorated. When driving, the Veteran turned up the music very loudly and had to ask people to repeat themselves. In September 2008, O.C. submitted a statement saying that he had to ask the Veteran to repeat himself and that the Veteran said he thought he had tinnitus and possible hearing loss. In September 2018, T.G. submitted a statement. She said that the Veteran often reported being distracted during committee meetings because of his tinnitus and that he would often ask people to repeat themselves due to his tinnitus. The Veteran stated he had been dealing with this condition since service. In October 2018, R.R. submitted a statement. R.R. served with the Veteran from 2002 to 2005 and on several occasions, spoke to the Veteran about the difficulty with his ears, in particular in a classroom setting, during physical training sessions, and on the flight line. The Veteran complained of ear pain and the inability to fully hear. (See also September 2008 statement.) In September 2018, the Veteran's spouse submitted a statement. She said the Veteran consistently complained about tinnitus and hearing loss for as long as she had known him. They married in March 1988 and his conditions have worsened over the years, that the Veteran had to listen to the TV very loudly and has to repeat herself. (See also September 2008 statement.) The Veteran had an examination for his hearing loss and tinnitus in October 2008. The Veteran reported hearing deteriorating and that he had ringing in his years. The Veteran reported he had been in the honor guard while in service, firing rifles and ground burst simulators without hearing protection. He also reported living close to the flight line in Japan. The Veteran reported some occupational noise exposure with use of mandatory hearing protection. The Veteran reported constant bilateral tinnitus with ringing since 2003 or 2004. The audiogram did not indicate the Veteran had hearing loss for VA purposes and neither did the speech recognition test. This examiner did not review any private treatment records, but did review some STRs that indicated the Veteran had normal hearing while in service. The examiner reviewed the Veteran's VA medical treatment records and found no other pertinent evidence. The examiner opined it was less likely than not the Veteran's tinnitus was incurred in or due to acoustic trauma while in service. The examiner explained there were no complaints of tinnitus while in service and there was a lapse in time between the Veteran's end of service and his reports of tinnitus. The Veteran had an examination for his hearing loss and tinnitus in April 2018. The examiner saw the Veteran in person and reviewed his file. The examiner reported he could not perform a puretone threshold hearing test. The examiner reported the results were unreliable with poor speech/puretone agreement and positive stengers. The examiner reported the Veteran's speech discrimination tests were valid for testing purposes and were 94 percent in both ears. Pertaining to both ears, the examiner reported there was not a permanent positive threshold shift greater than normal measurement variability at any frequency. The examiner said an etiology opinion could not be provided given the unreliable test results. Regarding the Veteran's tinnitus, the Veteran reported tinnitus but the examiner opined it was less likely than not the Veteran's tinnitus was a result of in-service noise exposure. The examiner explained the Veteran's STRs were silent for tinnitus or hearing loss during service and that the Veteran's description of transient tinnitus was present in the general population and not consistent with noise exposure. A March 2014 treatment records was negative for hearing loss. The Board has considered all of the evidence of record, including the many statements made by the Veteran, his friends, and family. The Board does not doubt the Veteran struggles with some hearing loss. However, in order to have a hearing loss disability for VA purposes, certain thresholds of hearing loss have to be met, as discussed above. In this case, the objective evidence does not indicate the Veteran has bilateral hearing loss for VA purposes. In so finding, the Board does not discount the lay statements of record about what the Veteran experienced while in service or that he currently has hearing problems. The Veteran's STRs also do not indicate the Veteran had hearing problems or that he was diagnosed with bilateral hearing loss for VA purposes while in service. However, the objective evidence does not indicate the Veteran has bilateral hearing loss that was incurred in and due to his time in service. Simply, while the Veteran's hearing may not be what it once was, it is still within a range of "normal" for VA purposes. Regarding the claim above, the Board acknowledges the statements by the Veteran, his family, and friends that he suffers from hearing loss symptoms and complained about such in service. However, while the Veteran is competent to report the symptoms of his disability, he is not competent to opine on matters requiring medical knowledge, such as determining the nature and etiology of his bilateral hearing loss. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board lends more weight to the objective evidence of record which does not indicate he has bilateral hearing loss for VA purposes that was incurred in or due to his time in service. It is important for the Veteran to understand that the most probative medical evidence of record provides evidence against this claim that the Board cannot, unfortunately, ignore, outweighing the Veteran's belief that his condition was due to his time in service or any noise he experienced in the honor guard or on the flight line. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). The Board now turns to the Veteran's claim that he has tinnitus that was incurred in and due to his time in service. The Veteran, as a layperson, may be competent on a variety of matters concerning the nature and cause of his disability. Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Court has found a lay person competent to identify tinnitus which is a disorder that can be identified based on lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). In light of the above, the Board has given weight to the Veteran's statements about his symptoms and when he said the ringing in his ears began. The Board notes that the Veteran's STRs do not indicate that he had ongoing trouble with tinnitus while in service. However, the Board has also considered the Veteran's statements as to why he didn't seek treatment, thinking it was just a normal condition. Weighing against the Veteran's claim is that two examiners have opined that the Veteran's tinnitus was not incurred in or due to his time in service. The Board understands that the mere absence of treatment of tinnitus while in service is not reason in of itself to deny service connection. However, the Board finds probative the statements and opinions by the April 2018 examiner who said that the Veteran's description of his tinnitus was present in the general population and not consistent with noise exposure. Thus, the Board finds the evidence at least in equipoise regarding whether the Veteran's tinnitus was incurred in or due to his time in service. Therefore, granting the benefit of the doubt to the Veteran, the Board will grant the claim. REASONS FOR REMAND The Board finds a remand is necessary in the Veteran's claim to service connection for diabetes. The Veteran has been diagnosed with diabetes. His STRs do not indicate trouble with diabetes while in service. However, the Veteran has contended his diabetes also may be due to a course of medication, including steroids, he took for his service-connected disabilities. The Veteran was afforded an examination for his diabetes and the examiner offered a negative opinion, saying it was less likely than not the Veteran's diabetes was aggravated beyond its natural progression by his medication or his service-connected disabilities. (See September 2017 examination.) However, the Board notes that the standard for aggravation of a non-service-connected disability is whether the non-service-connected disability has been aggravated any amount by his service-connected disability, not that it has to be aggravated beyond its natural progression. Therefore, this examination is inadequate and a new examination is warranted. Barr v. Nicholson, 21 Vet. App. 303 (2007). The matters are REMANDED for the following action: 1. The AOJ should obtain any of the Veteran's outstanding medical records and associate them with the claims file. If possible, the Veteran himself should submit any pertinent evidence regarding the condition at issue in order to expedite the claim. 2. Schedule the Veteran for an appropriate VA examination for his diabetes. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. The examiner should opine as to the following: (a) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's disability was incurred in or due to the Veteran's service. (b) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's disability is proximately due to any of his service-connected disabilities. (c) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's disability was aggravated by any of his service-connected disabilities, to include medication (steroids) taken for his service-connected back and knee disabilities. Note: Aggravation does not mean a permanent worsening. Any incremental worsening constitutes aggravation. (Continued on the next page) The examiner should offer a rationale for any opinion offered. The examiner should consider and address statements made by the Veteran as to the etiology of his diabetes. 3. After the requested development has been completed, together with any additional development as may become necessary, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, issue to the Veteran and the Veteran's representative a supplemental statement of the case and give an opportunity to respond thereto. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Snoparsky 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.