Citation Nr: 21007700 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 18-39 221 DATE: February 10, 2021 ORDER Entitlement to service connection for residuals, right-side face injury, has been withdrawn. New and material evidence having been received, the previously denied claim of entitlement to service connection for bilateral hearing loss is reopened. New and material evidence having been received, the previously denied claim of entitlement to service connection for tinnitus is reopened. Service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a disability of the left ankle/leg is remanded. Entitlement to service connection for pes planus is remanded. Entitlement to service connection for hammertoes is remanded. FINDINGS OF FACT 1. During the Veteran’s September 2020 hearing before the undersigned Veterans Law Judge (VLJ) of the Department of Veterans Affairs (VA) Board of Veterans’ Appeals (Board), prior to the promulgation of a decision in the appeal, the Veteran requested withdrawal of the appeal of his claim of entitlement for service connection for residuals, right-side face injury. 2. The Veteran did not appeal an October 2006 VA Regional Office (RO) decision that denied service connection for bilateral hearing loss and tinnitus. 3. Evidence received since the October 2006 RO decision is not cumulative or redundant of evidence previously of record and raises a reasonable possibility of substantiating the claims of entitlement to service connection for bilateral hearing loss and tinnitus. 4. Resolving all doubt in favor of the Veteran, he was exposed to acoustic trauma during active service, and has experienced symptoms of tinnitus continuously since separation from service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal have been met with respect to the claim of entitlement to service connection for residuals, right-side face injury. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 2. The October 2006 RO decision that that denied service connection for bilateral hearing loss and tinnitus is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.201, 20.302. 3. The evidence received after the October 2006 RO decision is new and material; the claims of entitlement to service connection for bilateral hearing loss and tinnitus are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1962 to October 1964. The Veteran and his daughter testified before the undersigned VLJ in September 2020; a transcript is of record. The RO, in the March 2017 rating decision on appeal, denied service connection for tinnitus. The Veteran, in a July 2017 statement, asserted that there was clear and unmistakable error (CUE) in the March 2017 rating decision denying service connection for tinnitus. A claim of CUE constitutes a collateral attack on a final RO decision. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). As the March 2017 rating decision is not final, there can be no CUE claim for the Board to adjudicate at this time. In any event, the Board herein grants in full the Veteran’s claim of entitlement to service connection for tinnitus. Withdrawal Entitlement to service connection for residuals, right-side face injury. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Withdrawal of an appeal may be made by the Veteran or by his or her authorized representative prior to the Board’s issuance of a final decision. 38 C.F.R. § 20.204. During the Veteran’s September 2020 hearing, he stated that he was withdrawing his appeal of the claim of entitlement for service connection for residuals, right-side face injury. He explicitly, unambiguously, and with a full understanding of the consequences, withdrew his appeal of his claim. The undersigned clearly identified the withdrawn issue and informed the Veteran that a withdrawal of such means that the claim is dropped, that it is no longer on appeal, and that it will no longer be addressed by the Board; and he affirmed that he was requesting a withdrawal as to this appeal. See Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). The Board therefore finds that the Veteran has withdrawn his appeal of the above-mentioned issue. The withdrawal was memorialized in the hearing transcript, prior to the issuance of a final decision on this matter. The withdrawal was thus made in the form and manner required by 38 C.F.R. § 20.204. The filing, then, effectively withdrew the relevant Notice of Disagreement (NOD) and Substantive Appeal; accordingly, no allegation of error of fact or law remains before the Board for consideration regarding this issue. The Board, therefore, does not have jurisdiction over the appeal of this claim, and the appeal of entitlement to service connection for residuals, right-side face injury, must be dismissed. New and Material Evidence Whether new and material evidence has been received to reopen previously denied claims of entitlement to service connection for bilateral hearing loss and tinnitus. In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.302. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is defined as evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156 (a). The Veteran’s claims for service connection for bilateral hearing loss and tinnitus were denied by a October 2006 RO rating decision on the bases that there was no evidence of a chronic hearing loss condition and that there was no evidence that the claimed tinnitus existed. The Veteran was notified of such in an October 2006 letter. No party filed a NOD to the rating decision, nor was there any relevant new and material evidence, medical or lay, physically or constructively received by VA prior to the expiration of the appellate period. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (b); 20.201. As such, the October 2006 RO rating decision is final. Relevant evidence added to the record since the prior decision includes statements of the Veteran attributing his bilateral hearing loss and tinnitus to in-service acoustic trauma. VA has not yet afforded the Veteran a VA audiological examination to determine the precise nature of any bilateral hearing loss and to determine the etiology of any bilateral hearing loss that comports with VA standards to be considered a disability and tinnitus. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010) (in determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim with VA’s assistance). Because the new evidence, the warranted VA audiological examination, could serve as a basis to substantiate the claims, it is material. New and material evidence having been received, the claims of entitlement to service connection for bilateral hearing loss and tinnitus are reopened. Service Connection Entitlement to service connection for tinnitus. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). Alternatively, continuity of symptomatology may be established if a claimant can demonstrate: (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology under 38 C.F.R. § 3.303 (b); Barr v. Nicholson, 21 Vet. App. 303 (2007). Where a claimant asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, he can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309 (a), including neurological disorders such as tinnitus. Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). Such chronic diseases are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1110, 1112; 38 C.F.R. §§ 3.307, 3.309(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a claimant is competent to report on that of which he or she has personal knowledge). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In his April 2006 claim, the Veteran asserted that he had hearing problems since he left service, including a constant buzzing in his ears. During his September 2020 Board hearing, he asserted that he was aboard ship off the coast of the Republic of Vietnam serving as a seaman, a deckhand, and was exposed to loud noise from shooting five-inch guns from the turret. He reported that most of the time aboard ship, they shot the guns at targets, and that his provided hearing protection did not help. He asserted that he first noticed tinnitus right after the guns stopped firing, however, he did not complain of such during service. He asserted that he experienced constant tinnitus since that time and denied occupational noise exposure. The Veteran’s service treatment records are silent for complaint, treatment, or diagnosis of tinnitus; no party asserts otherwise. His service separation form, his DD-214, is silent for his military occupational specialty (MOS) and notes foreign or sea service. His service treatment records dated during many instances of in-service treatment indicate that he was aboard the USS Agerholm, DD826, a naval destroyer. The Board concedes that the Veteran experienced acoustic trauma in service as a result of his military duties, considering his competent and credible lay statements describing exposure to five-inch guns firing from the turret aboard ship and evidence of his service aboard a destroyer class ship. Layno, 6 Vet. App. 465, 470. There is no evidence in contradiction to the Veteran’s lay statements on this issue. The Veteran is competent to diagnose tinnitus as it is capable of lay observation. Id. Based on the forgoing, there is probative evidence of current tinnitus, and, resolving all doubt in favor of the Veteran, probative evidence of in-service acoustic trauma and continued tinnitus from the time of separation from service to the present. 38 U.S.C. §§ 1110, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, 708 F.3d 1331, at 1337-39. The Board thus finds that service connection for tinnitus is warranted. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. In his April 2006 claim, the Veteran asserted that he had hearing problems since he left service. During his September 2020 Board hearing, he asserted that he was aboard ship off the coast of the Republic of Vietnam serving as a seaman, a deckhand, and was exposed to loud noise from shooting five-inch guns from the turret. He reported that most of the time aboard ship, they shot the guns at targets, and that his provided hearing protection did not help. He asserted that he first noticed hearing problems a little while after returning home from service. He denied occupational noise exposure. In private treatment records dated in October 2020 indicate that the Veteran reported hearing loss since he was in the Navy. The Board herein grants service connection for tinnitus based on the Veteran’s in-service acoustic trauma. He has not yet been afforded a VA audiological examination to determine if he has current bilateral hearing loss that comports with VA standards to be considered a disability under 38 C.F.R. § 3.385, and if so, the etiology thereof. On remand, the RO should afford the Veteran such. 2. Entitlement to service connection for a disability of the left ankle/leg is remanded. During his September 2020 Board hearing, the Veteran asserted that his service treatment records show his injury to his left ankle and described that a fellow service member fell on him. He reported that he was in the hospital for one week and was unable to walk. He reported that since then, he sometimes would feel like his leg was not there and he would have to stop and hold on to something. The Veteran’s service treatment records dated June 1963 indicate that the Veteran injured his left ankle when a service member fell against it; his leg was splinted, he had localized tenderness and limited motion, X-ray examination was negative for fracture; he was diagnosed with mild left ankle sprain. On another instance of treatment in June 1963, he complained of a knot on the anterior of his leg; the treatment provider reported that they would observe such. On another instance of treatment in June 1963, he presented with a decubitus ulcer of the left ankle, treated with medication, ointment, and a bandage. Private treatment records dated in October 2020 indicate that the Veteran reported a left ankle injury sustained during service aboard ship when a service member fell from eight feet and landed on his back, with ankle pain ever since. He was diagnosed with left knee pain. Private magnetic resonance imaging (MRI) in October 2020 revealed subcutaneous edema of the left ankle without fracture or dislocation, and minimal degenerative changes of the midfoot. On remand, the RO should provide the Veteran a VA examination to determine the precise nature of any left ankle/leg disability and the etiology thereof. 3. Entitlement to service connection for pes planus and entitlement to service connection for hammertoes are remanded. During his September 2020 Board hearing, the Veteran asserted that his pes planus and hammertoes noted at entry into service and got worse during service. He reported that he had deformity in his feet with occasional swelling. The Veteran’s service treatment records include his March 1962 service entrance Report of Medical Examination including in the summary of defects and diagnoses, bilateral hammertoes and pes planus, second degree, asymptomatic. His service treatment records are silent for complaint or treatment of the feet. Private magnetic resonance imaging (MRI) in October 2020 revealed subcutaneous edema of the left ankle without fracture or dislocation, and minimal degenerative changes of the midfoot. On remand, the RO should afford the Veteran a VA examination to determine the precise nature of his current pes planus and hammertoes and determine whether such were aggravated beyond their normal progression during service. As to each of the Veteran’s claims remanded herein, there exists outstanding relevant private treatment records. The undersigned VLJ, the Veteran, and his daughter discussed during the September 2020 Board hearing that they had previously submitted the Veteran’s private treatment records to a party who asserted such had been sent to VA and associated with his claims file. On remand, the RO should inform the Veteran that the only private treatment records currently associated with the claims file include records from Adventist Health dated in October 2017 and November 2017, unrelated to the disabilities on appeal, a July 2006 negative response from Santa Rose Memorial Hospital for records unrelated to the disabilities on appeal, and limited records from Dr. Schwartz dated in October 2020 related to hearing loss, his left ankle/leg disability, and his foot disabilities. The RO should obtain and associate any outstanding relevant private treatment records identified and authorized by the Veteran. The matters are REMANDED for the following action: 1. Inform the Veteran that the only private treatment records currently associated with the claims file include: (1) records from Adventist Health dated in October 2017 and November 2017, unrelated to the disabilities on appeal; (2) a July 2006 negative response from Santa Rose Memorial Hospital for records unrelated to the disabilities on appeal; and (3) limited records from Dr. Schwartz dated in October 2020 related to hearing loss, his left ankle/leg disability, and his foot disabilities. Ask the Veteran to complete VA Forms 21-4142 for any outstanding relevant private treatment records regarding his disabilities on appeal. Make two requests for the authorized records from any identified private treatment provider unless it is clear after the first request that a second request would be futile. 2. Then, schedule the Veteran for a VA examination for his bilateral hearing loss. The examiner must review the claims file and provide a complete rationale for any opinions stated. All indicated tests and studies must be completed. (a) The examiner must elicit from the Veteran precise information as to the onset of bilateral hearing loss symptoms, as during the course of his appeal, he has asserted both that he first noticed hearing problems a little while after returning home from service he had hearing loss since he was in the Navy; the examiner must attempt to confirm if the Veteran experienced the sensation of decreased hearing acuity during service. (b) For any current bilateral hearing loss that comports with VA standards to be considered a disability under 38 C.F.R. § 3.385, is such at least as likely as not (at least 50 percent probability) related to the Veteran’s in-service acoustic trauma, conceded herein, considering his lay statements of being near exploding five-inch guns shooting often from turrets aboard a destroyer class ship, with hearing protection he felt did not help, hearing loss symptoms during or soon after separation from service, and no occupational noise exposure? (c) Is it at least as likely as not (at least 50 percent probability) that any current bilateral hearing loss that comports with VA standards to be considered a disability under 38 C.F.R. § 3.385: (1) manifested to a compensable degree within one year of separation from service in October 1964; or (2) was noted during service with continuity of the same symptomatology since service? In providing the requested opinions, the examiner must consider the Veteran’s description of his in-service acoustic trauma and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s acoustic trauma and symptoms in service and thereafter represented the onset of his current bilateral hearing loss, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? 3. Schedule the Veteran for a VA examination for his left ankle/leg disability. The examiner must review the claims file and provide a complete rationale for any opinions stated. All indicated tests and studies must be completed. (a) The examiner must provide all appropriate diagnoses of any left ankle/leg disabilities. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. (b) Are any left ankle/leg disabilities at least as likely as not (at least 50 percent probability) related to service, including his in-service left ankle injury with possible knot on the anterior leg and decubitus ulcer of the left ankle, specifically considering the Veteran’s lay statements of his in-service and post-service left ankle/leg disability? (c) Is it at least as likely as not (at least 50 percent probability) that any current arthritis of the left ankle/leg: (1) manifested to a compensable degree within one year of separation from service in October 1964; or (2) was noted during service with continuity of the same symptomatology since service? In providing the requested opinions, consider the Veteran’s description of his in-service left ankle injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s left ankle injury and symptoms in service and thereafter represented the onset of his current left ankle/leg disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? 4. Schedule the Veteran for a VA examination for his pes planus and hammertoes. The examiner must review the claims file and provide a complete rationale for any opinions stated. All indicated tests and studies must be completed. (a) Did the Veteran’s pes planus, which existed prior to service, at least as likely as not (at least 50 percent probability) increase in severity during service, considering the Veteran’s lay statements describing current foot deformity, pain, and swelling, and the October 2020 MRI revealing minimal degenerative changes of the midfoot? (b) If so, was the increase in severity of the Veteran’s pes planus clearly and unmistakably (undebatable) due to the natural progress of the disease? (c) Did the Veteran’s hammertoes, which existed prior to service, at least as likely as not (at least 50 percent probability) increase in severity during service, considering the Veteran’s lay statements describing current foot deformity, pain, and swelling, and the October 2020 MRI revealing minimal degenerative changes of the midfoot? (Continued on the next page) (d) If so, was the increase in severity of the Veteran’s hammertoes clearly and unmistakably (undebatable) due to the natural progress of the disease, considering the Veteran’s lay statements describing current foot deformity, pain, and swelling? P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.