Citation Nr: 21024809 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 17-09 778 DATE: April 26, 2021 ORDER Entitlement to a compensable disability rating for the Veteran’s hypertension prior to December 31, 2015, and a 10 percent disability rating thereafter is dismissed. Entitlement to service connection for hepatitis B is dismissed. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include alcohol abuse, anxiety, and posttraumatic stress disorder (PTSD), but excluding dysthymic disorder is remanded. Entitlement to service connection for a bilateral knee disability is remanded. Entitlement to service connection for a neck disability is remanded. FINDINGS OF FACT 1. At the January 2021 Board hearing, the Veteran, through his authorized attorney, requested to withdraw his appeal of the issue of entitlement to a compensable disability rating for the Veteran’s hypertension prior to December 31, 2015 and a 10 percent disability rating thereafter. 2. At the January 2021 Board hearing, the Veteran, through his authorized attorney, requested to withdraw his appeal of the issue of entitlement to service connection for Hepatitis B. 3. The Veteran’s tinnitus was caused by his active duty service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal regarding entitlement to service a compensable disability rating for the Veteran’s hypertension prior to December 31, 2015 and a 10 percent disability rating thereafter have been met. 38 U.S.C. § 7105 (2018); 38 C.F.R. § 19.55 (2020). 2. The criteria for withdrawal of the appeal regarding entitlement to service connection for hepatitis B have been met. 38 U.S.C. § 7105 (2018); 38 C.F.R. § 19.55 (2020). 3. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.303. 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Air Force from August 1999 to February 2007. In January 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) and a transcript is of record. The Board acknowledges the Veteran made a general argument regarding the VA’s duty to assist and duty to notify. However, the Veteran did not advance any specific argument regarding either duty. The Veteran has not raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Withdrawn Issues 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 (2018). A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 19.22, 19.55 (2020). Withdrawal may be made by the Veteran or by his authorized representative. 38 C.F.R. § 19.55 (2020). At the January 2021 Board hearing, the Veteran, through his attorney explicitly and unambiguously withdrew the issue of entitlement to an increased rating for his hypertension and entitlement to service connection for hepatitis B. The undersigned clearly identified the withdrawn issue and explained the consequence of a dismissal. The Veteran’s attorney affirmed that the Veteran was requesting a withdrawal. Accordingly, the Board finds the verbal withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of withdrawal. DeLisio v. Shinseki, 25 Vet. App. 45, 57-58 (2011); Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). There remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of these issues and they are dismissed. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. To establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2020); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The nexus element may be satisfied by evidence a showing of continuity of symptomatology after service to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303(a), (b), 3.309(a) (2020); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For veterans who served 90 days or more after December 31, 1946, the chronic diseases listed in 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a), including tinnitus are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101(3), 1112(a)(1) (2018); 38 C.F.R. §§ 3.307(a), 3.309(a) (2020). As a lay person the Veteran is competent to self-diagnose tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Second, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the evidence in light of the entirety of the record. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2020). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 4 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Tinnitus is a disability capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Tinnitus is an organic disease of the nervous system and is thus considered a chronic disease. 38 C.F.R. § 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). Therefore, the nexus requirement may be satisfied by evidence it manifested itself to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112 (2018); 38 C.F.R. §§ 3.307, 3.309 (2020). The Veteran testified that his tinnitus began in service and has persisted since service. He testified that the ringing in his ears began during his weapons training and never went away. He is competent to make these observations. There is nothing in the record that renders his statements not credible. The Board noes that his in-service noise exposure is conceded and the service connection element at issue is nexus. In October 2015, the Veteran received a VA examination. The examiner acknowledged the Veteran’s in-service noise exposure but noted that his hearing was within normal limits while in service. The examiner also noted the Veteran’s inconsistent reports of tinnitus. The examiner ultimately concluded that in the absence of hearing loss or other known etiologies of tinnitus, an opinion could not be provided. The preponderance of the probative evidence is for the Veteran’s claim. The Board notes that the October 2015 VA examiner failed to provide an opinion, but the Veteran provided competent, credible evidence that his tinnitus has persisted since service. Thus, the Board assigns high probative value to the Veteran’s lay statements. Therefore, as the preponderance of the probative evidence is for the Veteran’s claim, service connection for tinnitus is warranted. REASONS FOR REMAND 1. Acquired Psychiatric Disorder The Board acknowledges the Veteran has had multiple VA examinations and opinions concerning his psychiatric disorders. However, the Board finds another opinion is necessary that considers secondary service connection and whether the Veteran has a separate psychiatric disorder, that is caused by or aggravated by his service-connected dysthymic disorder. There is conflicting evidence in the record concerning whether the Veteran’s has separate disabilities or whether his alcohol abuse and anxiety are symptoms of his service-connected dysthymic disorder. Likewise, an opinion concerning the etiology of the Veteran’s PTSD is necessary. In a May 2019 addendum opinion, the examiner opined that the Veteran’s PTSD was not due to his service. At his Board hearing, he testified about an in service incident that caused his PTSD. The Veteran was going to submit a written statement fully describing what happened. As his psychiatric claim is being remanded for an opinion, the Veteran should also be provided additional time to provide his written statement. 2. Bilateral Knee Disability and Neck Disability The Veteran has not received a VA examination for his bilateral knee and neck disabilities. He reported difficulty bending his knees in service. He also testified that his knee and neck disabilities are caused by his service connected back disability. Thus, remand is necessary for a VA examination that considers his lay statements and possible secondary service connection. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician for his acquired psychiatric disorder. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must opine as to the following: a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a separate acquired psychiatric disorder excluding his dysthymic disorder, to include alcohol abuse, anxiety, and PTSD began during active service, is related to an incident of service, or began within one year after discharge from active service. b.) Whether it is at least as likely as not that the Veteran’s separate acquired psychiatric disorder was proximately due to or the result of his service connected dysthymic disorder. c.) Whether it is at least as likely as not that the Veteran’s separate acquired psychiatric disorder was aggravated beyond its natural progression by his service-connected dysthymic disorder. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Schedule the Veteran for an examination with an appropriate clinician for his bilateral knee disability. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must opine as to the following: a.) Whether it is at least as likely as not that the Veteran’s bilateral knee disability began during active service, is related to an incident of service, including his in-service report of knee issues, or began within one year after discharge from active service. b.) Whether it is at least as likely as not that the Veteran’s bilateral knee disability was proximately due to or the result of his service connected back disability c.) Whether it is at least as likely as not that the Veteran’s bilateral knee disability was aggravated beyond its natural progression by his service-connected back disability. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Schedule the Veteran for an examination with an appropriate clinician for his neck disability. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must opine as to the following: a.) Whether it is at least as likely as not that the Veteran’s neck disability began during active service, is related to an incident of service, or began within one year after discharge from active service. b.) Whether it is at least as likely as not that the Veteran’s neck disability was proximately due to or the result of his service connected back disability c.) Whether it is at least as likely as not that the Veteran’s neck disability was aggravated beyond its natural progression by his service-connected back disability. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 4. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Brunot, 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.