Citation Nr: 21023575 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 20-05 475 DATE: April 21, 2021 ORDER Entitlement to special monthly compensation (SMC) based on the need for aid and attendance and housebound status is dismissed. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. During the February 2021 Board hearing, the Veteran, with the assistance of his representative, withdrew the appeal for entitlement to SMC based on the need for aid and attendance and housebound status. 2. The Veteran’s tinnitus first manifested during combat service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to SMC for aid and attendance and housebound status by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1154(b), 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309; Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 2002 to July 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared for a hearing before the undersigned Veterans’ Law Judge in February 2021. A transcript of that proceeding has been associated with the claims file. The Board notes that during the hearing, the Veteran indicated that he was seeking entitlement to a TDIU. When a Veteran asserts they are unable to work during the course of an appeal of a seeking higher disability compensation, a claim for entitlement to a TDIU will be considered to have been raised by the record as “part and parcel” of the underlying claim. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (holding that a request for a TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather, can be part of a claim for increased compensation); see also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (holding that a separate, formal claim is not required in cases where an informal claim for TDIU has been reasonably raised). In this case, while there is no specific increased rating claim currently before the Board, the issue of entitlement to SMC is before the Board. SMC is a potential element of increased rating claims without the need for a separate claim. Buie v. Shinseki, 24 Vet. App. 242 (2010). Thus, the Board find that the issue of entitlement to TDIU has been raised by the record and will be added to the appeal. The Board also notes that additional VA treatment record were added to the file after the December 2019 Statement of the Case (SOC) was issued. The Board finds that the records added since the SOC are either cumulative or duplicative of evidence already considered by the Agency of Original Jurisdiction (AOJ) or are not relevant to the issues being adjudicated herein. Thus, there is no prejudice to the Veteran in the Board proceeding with a decision on such matters at this time. SMC During the February 2021 Board hearing, the Veteran, with the assistance of his representative, indicated that he wished to withdraw the appeal for entitlement to SMC based on aid and attendance and housebound status. Upon careful review, the Board finds that the Veteran’s withdrawal of this issue from appellate consideration is explicit and unambiguous. The withdrawal was reduced to writing in the hearing transcript, and the Veteran indicated his desire to withdraw the issue under oath during the hearing. Furthermore, the Veteran appears to have had full understanding of the consequences of the withdrawal, as he had the assistance of his representative in doing so. 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. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. In the present case, the Veteran, who is the appellant in this case, has withdrawn this appeal with the assistance of his representative. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. Tinnitus Service connection may be granted for a current disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.303. Service connection may also 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). The requirement that a current disability exist is satisfied if the claimant had a disability at the time the claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In Fountain v. McDonald, 27 Vet. App. 258 (2015), the Court determined that tinnitus is an “organic disease of the nervous system” subject to presumptive service connection where there is evidence of acoustic trauma and nerve damage. As an alternative to the nexus requirement, service connection for these chronic disabilities may be established through a showing of “continuity of symptomatology” since service. 38 C.F.R. § 3.303(b). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, for an enumerated “chronic disease” shown in service (or within a presumptive period under § 3.307), subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. See Groves v. Peake, 524 F.3d 1306, 1309 (2008). The Veteran had combat service as exemplified by his award of the Combat Action Badge. Therefore, the provisions of 38 U.S.C. § 1154(b) are applicable in this case, which state, in pertinent part, that in any case where a Veteran is engaged in combat during active service, lay or other evidence of service incurrence of combat related disease or injury will be considered sufficient proof of service connection if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence during service, and, to that end, VA shall resolve every reasonable doubt in favor of the Veteran. The Federal Circuit has held that the presumption found in § 1154(b) applies not only to the potential cause of a disability, but also to whether a disability itself was incurred while in service. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). Lay evidence is competent to establish the presence of observable symptomatology and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition is capable of lay observation and may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature.” Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). A veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § § 5107(b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. §§ 1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The Veteran seeks to establish entitlement to service connection for tinnitus. At the outset, the Board clarifies that tinnitus is a medical term referring to symptoms of noise in the ears, such as ringing, buzzing, roaring or clicking. See Dorland’s Illustrated Medical Dictionary, 1322 (32nd ed. 2012). In adopting the current rating criteria for tinnitus under Diagnostic Code (DC) 6260, VA described tinnitus as follows: Tinnitus is classified either as subjective tinnitus (over 95% of cases) or objective tinnitus. In subjective or “true” tinnitus, the sound is audible only to the patient. In the much rarer objective tinnitus (sometimes called extrinsic tinnitus or “pseudo-tinnitus”), the sound is audible to other people, either simply by listening or with a stethoscope. 67 Fed. Reg. 59033-01 (Sept. 19, 2002). Thus, tinnitus is a rare type of disability that, in the vast majority of cases, may be established on the basis of lay evidence alone. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran contends that his tinnitus is caused by his exposure to noise in service. Specifically, during the February 2021 Board hearing, the Veteran reported that he experiences continuous ringing in his ears. The Veteran, as a lay person, is competent to diagnose a disability if he is competent to identify it. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Tinnitus is a disability a lay person can competently identify. Charles v. Principi, 16 Vet. App. 370 (2002). As noted above, it is defined as noise in the ears that usually is subjective. Dorland’s Illustrated Medical Dictionary 1956 (31st ed. 2007). The Veteran’s statements that he has tinnitus, in sum, forms a sufficient basis to find that he has this disability. Service treatment records show that the Veteran consistently denied experiencing any ringing in his ears. July 2002, December 2005, January 2006, July 2006, and December 2006 deployment assessments all document that the Veteran denied experiencing any ringing in his ears. In his February 2007 separation Report of Medical History, the Veteran denied experiencing any hearing loss or ear trouble. His March 2007 Separation Examination was normal with regard to his ears. Service treatment records also documented that the Veteran was exposed to loud noises during service. In a December 2006 post-deployment assessment, the Veteran reported that he was often exposed to loud noises during his deployment. A February 2015 VA treatment record noted that the Veteran did not have any ear, nose, or throat symptoms. During an August 2018 VA examination, the Veteran reported that his tinnitus began during his deployment in 2003-2005. The examiner noted that the Veteran reported experiencing recurrent tinnitus, but found that it was less likely than not that the Veteran’s tinnitus was the result of military noise exposure. The examiner noted that service treatment records were silent for complaints or treatment of tinnitus, and that the February 2015 VA treatment record showed that, under the heading for ears, nose, and throat, which also specifically listed tinnitus, the Veteran did not report that he had any symptoms. Thus, the examiner concluded that a nexus could not be established. During an October 2019 Decision Review Officer (DRO) hearing, the Veteran’s representative asserted that tinnitus was not required to be documented in service treatment records in order to provide a favorable opinion, and that there were threshold shifts documented on service audiograms which were indicative of acoustic trauma. She also indicated that the Veteran had cognitive issues, and that he might not have understood what tinnitus means. The DRO indicated a new examination and opinion would be obtained. November 2019 VA correspondence shows that an examination was scheduled, but cancelled at the Veteran’s request. During the February 2021 Board hearing, the Veteran reported that he experienced continuous tinnitus since July 2002, and also during his combat deployments in Iraq. He reported that he was exposed to loud noises from guns and that he worked with artillery. His DD-214, Certificate of Release or Discharge from Active Duty, shows that he served as a cannon crewmember and received a Combat Action Badge for his service. After reviewing the evidence of record, the Board finds that service connection for tinnitus is warranted. An August 2018 VA examiner found that it was less likely than not that the Veteran’s tinnitus was related to service. However, the Veteran reported to that examiner that his tinnitus started in service. The case is complicated by the fact that the Veteran has provided inconsistent statements as to the onset of his tinnitus including specific denials of ear ringing during service. During his hearing before the undersigned, the Veteran stated that he experienced tinnitus during his combat deployments when he was exposed to excessive noise. The provisions of 38 U.S.C. § 1154(b) instruct that such evidence will be considered sufficient proof of service connection if consistent with the circumstances, conditions, or hardships of such service. The Board finds that the Veteran’s testimony establishes experiencing tinnitus during combat service, and his subsequent manifestation after service absent a clear intercurrent cause warrants an award of service connection when applying the combat provisions of 38 U.S.C. § 1154(b) as interpreted by Reeves, and the chronic disease presumption as interpreted by Groves. The claim, therefore, is granted. REASONS FOR REMAND During the February 2021 Board hearing, the Veteran reported that his service-connected posttraumatic stress disorder (PTSD) affects his ability to gain or maintain employment. He reported that it had been about two years since he last worked. The Veteran was asked during the hearing to provide a VA From 21-8940, Application for Increased Compensation Based on Unemployability, and to specifically identify his employment status since June 2018, which is the date the underlying SMC claim was filed, that provides the basis for the addition of the claim for TDIU. In February 2021, the Veteran submitted a VA Form 21-8940, however, it only lists employment until July 2013. July 2018 VA treatment records indicate that the Veteran was working part-time at a restaurant during this time. August 2018 VA treatment records also document that the Veteran was doing part-time landscaping, however this employment was not included on the form. Accordingly, a remand is necessary to obtain a complete record of the Veteran’s prior employment history. July 2018 VA treatment records also documented that the Veteran was attending basic computer education courses at a VA vocational rehabilitation computer center. A March 2020 VA screening record also noted that with respect to employment, the Veteran was currently enrolled in a program. Thus, on remand the AOJ should obtain any and all records of vocational rehabilitation that the Veteran has participated in. The matter is REMANDED for the following action: 1. Obtain any updated VA treatment records that have not yet been associated with the file. 2. Send the Veteran a letter advising him of the information and evidence needed to award a TDIU rating. This letter should also request that he complete VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, in order to provide the information needed to substantiate the claim of TDIU. Specifically, the Veteran should be asked to provide information regarding any employment from July 2013 to present. The Veteran should be encouraged to submit his income tax information since July 2013 which may assist in determining whether he engaged in substantially gainful employment. 3. Obtain the Veteran’s VA vocational rehabilitation folder. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records. 4. Obtain a VA opinion to determine the impact the Veteran’s service-connected disabilities either singly or cumulatively - have on his ability to obtain or retain employment. The examiner should specifically discuss whether the Veteran has the mental ability to perform activities consistent with his educational and vocational background such as tire installer, cook and laborer when considering his memory, concentration, ability to adapt to change, handle workplace stress, get along with co-workers, deal with the public and demonstrate sufficient reliability and productivity to maintain employment, including the effects of any medications taken for his PTSD. The findings should be reported in detail and all functional impairment caused by the service-connected disorders should be detailed. A complete rationale for all opinions should be provided. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Saikh, 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.