Citation Nr: 21007596 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 17-46 292 DATE: February 10, 2021 ORDER Service connection for left ear hearing loss is granted. An effective date of May 3, 2011 for service-connected bilateral pes planus is granted. REMANDED Entitlement to a compensable disability rating for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran’s left ear hearing loss had its onset in service. 2. The Veteran filed a claim for service connection for bilateral pes planus on May 3, 2011. The Veteran’s appeal was perfected in March 2015. 3. The Veteran’s March 2016 written statement was not a knowing and intentional withdrawal of his claim seeking service connection for bilateral pes planus. CONCLUSIONS OF LAW 1. The criteria for service connection for left ear hearing loss have been met. 38U.S.C. §§1131, 1154(a), 5107(b) (2012); 38C.F.R. §§3.102, 3.303, 3.385 (2018). 2. The criteria for entitlement to an effective date of May 3, 2011 for service-connected bilateral pes planus have been met. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1980 to October 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2012 and June 2016 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge in December 2020. The Board notes that an October 2020 rating decision granted service connection for bilateral pes planus and plantar fasciitis, effective September 23, 2020. The Veteran contends that he is entitled to an earlier effective date for this claim. As such, the Board has recharacterized this claim as stated above to better reflect the issue before the Board. The Board notes that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, here the evidence reveals that the Veteran is employed and that he has not reported that his service-connected disabilities on appeal precludes substantially gainful employment. See Hearing Testimony, December 2020. Therefore, the issue of entitlement to a TDIU is not before the Board. 1. Service connection for left ear hearing loss. To establish service connection for a claimed disorder, the following criteria must be met: (1) medical evidence of a current disability; (2) evidence of an in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and current disability. 38 C.F.R. § 3.303; see also, Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted for a disability resulting in a disease or injury that is incurred in or aggravated by active duty military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The Veteran seeks service connection for left ear hearing loss, which he contends began in service and has been recurrent since that time. The Board notes that the Veteran is service connected for right ear hearing loss and tinnitus due to military acoustic trauma. See Rating Decision, June 2016. All three elements of service connection are established by the competent and credible lay and medical evidence of record. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran has a diagnosis of left ear hearing loss and suffered acoustic trauma when exposed to extreme loud noise in service. See 38 C.F.R. § 3.385; see also Hearing Testimony, December 2020; VA Examination, June 2016, April 2017, and September 2020. Thus, the first two criteria have been met. Further, the competent and credible evidence of record shows that his current left ear hearing loss began during service and has been recurrent since that time. The Veteran reported that he first noticed hearing loss during service and that it has gotten worse over the years. See Hearing Testimony, December 2020. The Veteran is competent to report the onset and continuation of his hearing loss and the Board finds his testimony credible. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board notes that the June 2016 VA examiner opined that the Veteran’s left ear hearing loss was not related to service; however, because the evidence shows that the Veteran’s left ear hearing loss had its onset in service, service connection is warranted. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994). 2. Entitlement to an effective date of May 3, 2011 for service-connected bilateral pes planus. The Veteran seeks an earlier effective date for the establishment of service connection for bilateral pes planus. This claim arises from the determination that the Veteran withdrew his claim seeking service connection for bilateral pes planus in a March 2016 written correspondence. Because the Board finds that the March 2016 written correspondence was not a valid withdrawal of the Veteran’s disability claim that was first listed in the May 2011 statement, the Board finds that an entitlement to an effective date of May 3, 2011 for the establishment of service connection for bilateral pes planus is warranted. On May 3, 2011, VA received a VA 21-0820, Report of General Information, noting that the Veteran would like to file a claim for service connection for bilateral flatfoot and a stomach condition. After a March 2012 rating decision denied the Veteran’s claims, the Veteran filed a timely notice of disagreement on July 19, 2012. An October 2014 statement of the case again denied the Veteran’s claims. In December 2014, the Veteran timely filed a VA Form 9, appealing the issue of service connection for bilateral pes planus valgus and asking for a BVA hearing by live videoconference. In March 2015, VA certified the appeal through a VA form 8, noting the request for a hearing. On March 8, 2016, prior to a BVA hearing, VA received a written, signed statement from the Veteran. The correspondence stated as follows: “I wish to withdraw my BVA appeal for stomach and severe flat foot. It has been my contention since the first time I originally filed in 1993 that I have a RIGHT foot condition which was injured during my time of service and continues to be an issue to this day. I would like to file secondary service connection for my left foot or whichever foot they said was flat.” On the same date, the Veteran also filed a VA 21-526EZ, Fully Developed Claim, for service connection for a right foot condition – injured during service, and secondary service connection for his left foot. In a June 2016 rating decision, service connection for tinnitus and right ear hearing loss was granted, effective March 8, 2016, and service connection for left ear hearing loss was denied. In a September 2016 notice of disagreement, the Veteran appealed the June 2016 rating decision and noted that he was in disagreement with the evaluation for the issue of severe flat foot. In October 2016, the Veteran filed a VA 21-526EZ, Fully Developed Claim, for an increased rating for a foot condition, plantar fasciitis. In a July 2017 correspondence, VA informed the Veteran that they have discontinued his appeal for a stomach condition and bilateral pes planus based on the Veteran’s written request dated March 8, 2016. An October 2020 rating decision granted service connection for bilateral pes planus and plantar fasciitis, effective September 23, 2020, the day VA received the Veteran’s VA Form 20-0995, Supplemental Claim Application. Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Once a veteran files a claim, the claim remains open and pending until final action is taken by the RO. See Hanson v. Brown, 9 Vet. App. 29, 31 (1996). “Although there is no regulation specifically governing the withdrawal of a claim that has not yet been decided by the RO [ ], it is well settled that withdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.” DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011) (citing Hanson, 9 Vet. App. at 32; Kalman v. Principi, 18 Vet. App. 522, 524 (2004); Verdon v. Brown, 8 Vet. App. 529, 533 (1996); Isenbart v. Brown, 7 Vet. App. 537, 541 (1995). Furthermore, with respect to all pro se pleadings, VA must give a sympathetic reading to the veteran’s filings. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). In light of the foregoing, the Board agrees with the Veteran and his attorney that the issue before the Board is whether the Veteran’s March 2016 written correspondence, when viewed in the light most favorable to the Veteran, demonstrates that he made an unambiguous, explicit, and knowing withdraw of his claim for service connection. The Board finds that when read in the context of the other correspondence of record and in the light most favorable to the Veteran, the March 2016 correspondence does not constitute an explicit and unambiguous withdrawal of the Veteran’s claim for bilateral pes planus. As noted above, the Veteran first raised this claim in a statement received in May 2011. The Veteran’s appeal was properly certified by VA in March 2015. As the Veteran’s representative noted during the December 2020 hearing, the March 2016 statement document is internally inconsistent as it asks to withdraw his claim but also states that he has a right foot condition. Additionally, the Veteran’s representative argued that the Veteran also filed an application for flatfeet on the same day. Similarly, the Veteran testified during the December 2020 hearing that he was withdrawing his claim for a stomach condition only in the March 2016 statement. The Veteran stated that he was informed that if he withdrew his request for a BVA hearing, his claim for disability compensation for his foot condition could be granted. Given this context, it cannot be said that the Veteran’s statement was an explicit and unambiguous withdrawal of the claims first raised in the May 2011 statement. At best, the March 2016 statement was ambiguous as to this claim, which should have prompted VA to seek clarification. Instead of asking the Veteran to clarify which claims he intended to withdraw, the RO simply withdrew all pending service connection claims. Based on the above, the Board finds that the Veteran did not intend to withdraw his claim of service connection for bilateral pes planus. Thus, the Veteran’s claim for bilateral pes planus remained open as it was not withdrawn by the Veteran. Regardless of the date of a claim, an effective date generally can be no earlier than the facts found, i.e., the date that a claimant’s disability first manifested and the date benefits were authorized. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. In this case, there is no question that compensation benefits were payable for bilateral pes planus and the evidence shows that the onset of the Veteran’s bilateral pes planus was during service. See VA Examination, October 2020. Thus, an effective date of May 3, 2011 for entitlement to service connection for bilateral pes planus is warranted. REASONS FOR REMAND 1. Entitlement to a compensable disability rating for bilateral hearing loss is remanded. As the Board has granted service connection for left ear hearing loss in this decision, the issue of entitlement to a compensable disability rating for right ear hearing loss is effectively now an issue of rating bilateral hearing loss. Thus, the Board must defer consideration of the Veteran’s rating claim until the RO adjudicates in the first instance. See Disabled Am. Veterans v. Sec’y of Veterans Affairs, 327 F.3d 1339, 1345-48 (Fed. Cir. 2003). The matters are REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of the nature, extent and severity of his bilateral hearing loss symptoms and the impact of the condition on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence 2. Afford the Veteran a VA examination to determine the nature, extent and severity of his bilateral hearing loss. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.