Citation Nr: 21007629 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 17-30 751 DATE: February 10, 2021 ORDER The issue of service connection for bilateral pes planus is dismissed. Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. During the August 2019 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran requested to withdraw his appeal of service connection for bilateral pes planus. 2. The evidence of record is at least in equipoise as to whether the Veteran’s bilateral hearing loss is related to his military service. 3. The evidence of record is at least in equipoise as to whether the Veteran’s tinnitus is related to his military service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal of the issue of service connection for bilateral pes planus have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a), 3.385. 3. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1983 to July 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified at a Board hearing. Dismissal 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. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. During the August 2019 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal as to the issue of service connection for bilateral pes planus. Hence, there remain no allegations of errors of fact or law for appellate consideration as to this issue. Accordingly, the Board does not have jurisdiction to review the appeal of the issue, and it is dismissed. Service Connection Service connection will be granted for a current disability that resulted from an injury, disease, or aggravation, while in active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Generally, service connection requires (1) a present disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the present disability and the in-service incurrence or aggravation of a disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Veterans and lay people are competent to report observable symptoms in the realm of their personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Certain chronic diseases, including sensorineural hearing loss and tinnitus, will be presumed related to service if they were shown as chronic in service; or if they manifested to a compensable degree within a presumptive period following separation from active duty; or if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In a claim of service connection for impaired hearing, demonstration of the existence of a current disability is subject to the additional requirements of 38 C.F.R. § 3.385, which provides that service connection for impaired hearing shall not be established until the hearing loss meets pure tone or speech recognition criteria. Under this regulation, hearing status will be considered a disability for the purposes of service connection when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies 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. A September 2013 VA examination demonstrates that the requisites for hearing loss and tinnitus for VA purposes have been met in both ears. See 09/14/2013, VA Examination; 38 C.F.R. § 3.385. Competent evidence of current disabilities of bilateral hearing loss and tinnitus are accordingly found. The Veteran asserts that he experienced in-service noise exposure due to constant exposure to loud artillery noise. The AOJ conceded in-service noise exposure based on the Veteran’s military occupational specialty (MOS) as a field infantry officer. 04/24/2017, SOC. Upon VA examination in September 2013, the VA audiologist stated, It is the opinion of this examiner that an opinion cannot be rendered without resorting to mere speculation due to the absence of the [claims file,] [service treatment records,] or [service medical records]. Rationale: An opinion cannot be rendered without review of this Veteran’s records as pertinent information may be contained within it and its review is necessary to produce a sound and evidenced based opinion. During the August 2019 Board hearing, the Veteran testified that the ringing in his ear and his hearing loss had been progressive and gotten worse throughout time since the in-service incidents he described. Following a July 2019 private audiological examination by Scott McWilliams, it was determined, [The Veteran] suffers from a typical sensory neural hearing loss in both ears. This condition is due to a disorder in the inner ear or auditory nerve, in which sound energy is greatly reduced. The lack of heavy concentration of energy through all high frequency regions drastically reduces the ability to understand speech clearly. It is also causing a severe case of tinnitus. Steve McWilliams, BC-HIS, further stated, It [is] my professional opinion that this hearing loss and tinnitus is service connected because [the Veteran] has a marked loss only in the high frequencies with a shooters notch centered at 4k. This really only happens when an individual is exposed to repetitive loud sounds that fall into notch range. [The Veteran] was constantly exposed to big guns going off next to him while in service. Upon review, the Board finds the September 2013 VA examination report inadequate. In this regard, the Board notes that the claims file includes the Veteran’s service treatment records, which were of record at the time of the September 2013 VA examination. The competent and probative evidence is at least in equipoise as to whether current bilateral hearing loss and tinnitus had their onset in or are otherwise related to the Veteran’s period of active service. See 38 C.F.R. §§ 3.102, 3.303. The Veteran is competent to note when he first noticed the symptoms of hearing loss and tinnitus. With consideration of the totality of the relevant evidence, the competent and probative lay and medical evidence are at least in equipoise as to whether hearing loss and tinnitus started in service with post-service continuity of the same symptomatology. Any doubt on the material issue of nexus is resolved in the Veteran’s favor, and the claims of service connection for bilateral hearing loss and tinnitus are granted. See 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013) (stating that the primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the “nexus” requirement of the three-element test, whereas the former benefits from presumptive service connection (absent intercurrent causes) or service connection via continuity of symptomatology). JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Griffith 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.