Citation Nr: 21021566 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 17-17 240 DATE: April 13, 2021 ORDER Service connection for asthma is granted. Service connection for tinnitus is granted. The appeal for service connection for hearing loss has been withdrawn. FINDINGS OF FACT 1. The Veteran has a current diagnosis for asthma documented in VA treatment records and has been prescribed two different medications. 2. The Veteran’s enlistment examination report is silent for any respiratory problems, shortness of breath, or asthma and service treatment records (STRs) show he was treated for asthma shortly after enlistment and medically discharged for the same condition. 3. The only medical opinion of record (a negative October 2016 VA opinion) is inadequate because it appears to assume that asthma pre-existed service—without addressing the presumption of soundness, which certainly applies in this case. However, the Veteran has presented competent and credible sworn testimony that he never had an asthma attack until military service and that observable asthma symptoms began during service have persisted intermittently ever since. Considering the above, the Board finds the evidence is at least in relative equipoise as to whether the Veteran is presumed sound upon entry to service and whether asthma began in service and persisted thereafter. 4. The Veteran has presented competent and credible sworn testimony that the observable symptoms of his tinnitus began during service and persisted thereafter. The only medical opinion of record (a negative December 2016 VA opinion) is inadequate for failure to consider the Veteran’s competent report of onset during service. 5. At the October 30, 2020 hearing before the undersigned, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal for service connection for hearing loss (on the record explicitly, unambiguously, and with a full understanding of the consequences of such action). CONCLUSIONS OF LAW 1. The criteria are met for service connection for asthma. 38 U.S.C. §§ 1110, 1113, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303(b), 3.156(c) (2020). 2. The criteria are met for service connection for tinnitus. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309 (2020). 3. The criteria are met for withdrawal of the appeal for service connection for hearing loss. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from September 1992 to October 1992. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a December 2016 rating decision appealed in a timely January 2017 notice of disagreement (NOD) and perfected by a timely April 2017 substantive appeal in response to a February 2017 statement of the case (SOC). In October 2020, a hearing was held before the undersigned; a transcript is of record. The matter of service connection for asthma was originally adjudicated by the Agency of Original Jurisdiction (AOJ) as a claim to reopen. However, a review of the record shows VA received pertinent STRs (e.g., an enlistment examination report) after the original 1992 denial that were not then of record. Therefore, the Board will reconsider that original denial under 38 C.F.R. § 3.156(c). For the detailed reasons outlined above, the Board grants service connection for asthma and tinnitus and dismisses the hearing loss appeal as withdrawn (because no further allegation of factual or legal error remains for appellate consideration), obviating any need for further detailed analysis thereof at this time. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Yuan, 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.