Citation Nr: 21027433 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 16-50 000A DATE: May 5, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for left ear hearing loss is denied. Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for a low back disorder has been withdrawn. Entitlement to service connection for a skin disorder has been withdrawn. Entitlement to service connection for a bilateral arm disorder claimed as muscle spasms has been withdrawn. Entitlement to service connection for bilateral leg disorder claimed as bursitis with muscle spasms has been withdrawn. Entitlement to service connection for a bilateral shoulder disorder has been withdrawn. Entitlement to service connection for hypertension has been withdrawn. Entitlement to service connection for hyperlipoproteinemia has been withdrawn. REMANDED Entitlement to service connection for right ear hearing loss is remanded. FINDINGS OF FACT 1. Resolving all reasonable doubt in his favor, the Veteran's tinnitus at least as likely as not had its onset in service and has continued since. 2. The Veteran's preexisting left ear hearing loss, which was noted on entry, was not aggravated by service. 3. The Veteran's PTSD at least as likely as not was caused by his active duty service. 4. At his Board hearing, the Veteran unambiguously and explicitly, with full understanding of the consequences of such action, withdrew his appeal for service connection for a low back disorder, a skin disorder, a bilateral arm disorder (claimed as muscle spasms), hypertension, hyperlipoproteinemia, a bilateral shoulder disorder, and bilateral leg bursitis with muscle spasms. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 3. The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for withdrawal of the claim for entitlement to service connection for a low back disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 5. The criteria for withdrawal of the claim for entitlement to service connection for a skin disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 6. The criteria for withdrawal of the claim for entitlement to service connection for a bilateral arm disorder, claimed as muscle spasms, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 7. The criteria for withdrawal of the claim for entitlement to service connection for hypertension have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 8. The criteria for withdrawal of the claim for entitlement to service connection for hyperlipoproteinemia have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 9. The criteria for withdrawal of the claim for entitlement to service connection for a bilateral shoulder disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 10. The criteria for withdrawal of the claim for entitlement to service connection for bilateral leg bursitis with muscle spasms have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had service in the Marine Corps Reserves from May 1988 to August 1988 and in the Marine Corps from November 1990 to April 1991. He testified before the undersigned Veterans Law Judge (VLJ) at a virtual hearing in March 2021. A transcript of the hearing is of record. As noted in a March 2021 letter, the Veteran's appeal has been Advanced on the Docket (AOD) as a result of an administrative error which caused a significant delay in the docketing of his case. The Board additionally notes that since the issuance of the August 2016 statement of the case (SOC), additional records, including VA treatment records have been associated with the claims file. These records are cumulative and redundant of the records previously obtained. As such, remanding the claims for issuance of a supplemental statement of the case (SSOC) would serve no benefit to the Veteran and instead would further delay his claim. Therefore, the Board may proceed to adjudicate the Veteran's claims. Service Connection Generally, establishing service connection requires evidence of: (1) a current disability; (2) a disease; injury, or event in service; and (3) a causal link (nexus) between the claimed disability and the disease, injury, or event in service and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 1. Entitlement to service connection for left ear hearing loss; and entitlement to service connection for tinnitus. Service connection for certain chronic diseases, including sensorineural hearing loss and tinnitus, will be presumed if they manifest to a compensable degree within one year following active military service. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). A veteran is considered to have been in sound condition when examined and accepted for service, except as to disorders noted on entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). A preexisting injury or disease is considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). A June 2014 VA examination report confirms a diagnosis of tinnitus. The Veteran's service treatment records note left ear hearing loss which preexisted service, and the June 2014 VA examination continues to indicate that the Veteran has left ear hearing loss. In addition, exposure to in-service acoustic trauma has been conceded. See June 2014 Rating Decision. Therefore, the first and second element of service connection has been met. The questions before the Board are whether there is a so-called "nexus" between the Veteran's tinnitus and service; and whether the Veteran's left ear hearing loss was aggravated by service. As it relates to the Veteran's claim for tinnitus, the Board notes that he has competently and credibly reported that his tinnitus began immediately after service and has continued since. Although June 2014 VA examiner opined that his tinnitus was less likely than not related to service, this opinion lacks probative weight. Specifically, as rationale, the examiner stated, "no significant change or decrease in hearing can be observed in the service medical records and no report of tinnitus is found in the C-file." However, this rationale is insufficient as it does not address the Veteran's contentions regarding his tinnitus beginning immediately after service. Nor does it explain why a significant change or decrease in hearing is required for a showing of tinnitus. Put simply, this reasoning, alone, is not sufficient rationale for a negative opinion. See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). Thus, after resolving all reasonable doubt in favor of the Veteran, the Board finds that his lay statements establish continuity of symptomatology for tinnitus. Therefore, service connection is warranted. However, as it relates to the claim for service connection for left ear hearing loss, the Board finds that the preponderance of the evidence weighs against claim. As noted by the June 2014 VA examiner, the Veteran's left ear hearing loss was noted on entrance into service. His service treatment records show that he underwent audiological testing in December 1987, on enlistment into the United States Marine Corp reserves. At that time, his puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 Left 10 0 0 30 45 Although the Veteran contends that his hearing loss was worsened by service, as noted by the June 2014 VA examiner, the Veteran's service treatment records do not show any significant change or decrease in hearing. He was afforded in-service audiograms in December 1987, April 1988, October 1996, and April 1998. None of these audiograms showed a change in hearing. Indeed, on VA examination in June 2014, the Veteran's puretone thresholds from 500-2000 Hz continued to be within normal limits. His thresholds from 3000-6000 Hz on VA examination in June 2014 were exactly the same as noted on enlistment into service. Put differently, the hearing loss in his left ear has not worsened at all from the Veteran's entrance into service until VA examination in June 2014, which was administered approximately 23 years post-service. Thus, the Board finds that the evidence of record does not show that his hearing loss was aggravated by service. Although the Board is sympathetic to the Veteran's contentions and does not dispute that he has impaired hearing, the Board notes that the Veteran, as a lay person, is unable to provide an opinion as to the etiology of his preexisting hearing loss. In this instance, the Board affords great probative weight to the June 2014 VA examination report, which shows the Veteran's puretone thresholds have not changed from entrance into service approximately 34 years ago, to date. In sum, the preponderance of the evidence weighs against finding that the Veteran's preexisting left ear hearing loss was aggravated by service. As such, the benefit-of-the-doubt rule does not apply. The Veteran's claim for service connection for left ear hearing loss must be denied. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). Service connection for PTSD specifically requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f); 38 C.F.R. § 4.125(a). VA has amended its regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing in-service stressors. 75 Fed. Reg. 39843 (July 13, 2010). If a stressor claimed by a Veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD, and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. The Veteran contends that service connection is warranted for PTSD. He has admitted to pre-service sexual trauma. However, on his entrance examination in December 1987, there was no note of any acquired psychiatric disorder. Indeed, the Veteran denied experiencing any frequent trouble sleeping, or depression/excessive worry. On discharge, no psychiatric complaints or diagnoses were noted. Notably, on a November 1993 Report of Medical Examination post-service (USNR), the Veteran was found to be clinically normal with no psychiatric issues. Despite the Veteran's statements regarding his pre-service trauma, the evidence does not show that he had a psychiatric diagnosis on enlistment into service. A veteran is presumed sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.§ 1111; 38 C.F.R. § 3.304(b). Because no preexisting psychiatric disability was noted on entry into service, the Veteran is presumed to have been sound upon entry. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Following service, the Veteran sought treatment for his psychiatric symptoms through VA and through a private licensed professional counselor and therapist. He has also submitted detailed timelines regarding the onset of his symptoms. The Board finds his statements both competent and credible and does not dispute his psychiatric symptoms as described. Private treatment records from October 2009 indicate that the Veteran went to a Desert Storm reunion in 2002, and experienced "a mental breakdown." At that time, he was picked up by the police and handcuffed. He reported it taking him seven years to calm down after the war. The examiner diagnosed the Veteran with PTSD related to the Veteran's in-service experiences. A review of the Veteran's VA treatment records from March 2012 indicate that he underwent a mental health evaluation. The examiner noted an increase in depressive and PTSD symptoms for many months but that the Veteran had finally decided to present for evaluation because it was beginning to affect his home life. The Veteran's DD214 shows that he is in receipt of the Southwest Asia Service Medal; National Defense Service Medal; and Sea Service Deployment Ribbon. He was ordered to active duty in support of Operation Desert Shield/Storm from November 1990 to April 1991. In an October 2012 statement, the Veteran reported service in a combat zone whereby his unit supported Marine Corps Air Base 1 located in Bahrain. The March 2012 VA psychiatrist noted the Veteran's stressors and that he was placed in a combat zone in the First Gulf War as a Marine. The examiner opined that the Veteran meets the criteria for PTSD, at least in part, due to his combat experience. The examiner stated "PTSD symptoms are present both from military and sexual abuse events. These include intrusive nightmares, flashbacks, nightmares, hypervigilance, hyperstartle reflex, difficulty with crowds, survivor's guilt, isolation, emotional numbing, and anger." The examiner confirmed that the Veteran met the DSM criteria for PTSD, and it was at least as likely as not due, at least in part, to his combat experience. The Veteran was afforded a VA examination for his PTSD in May 2014. The examiner opined that the Veteran did not meet the DSM criteria for PTSD or any other diagnosis. However, this examination report is outweighed by the Veteran's VA treatment records which continue to show that the Veteran is being treated for PTSD. Given the March 2012 VA psychiatric evaluation which linked the Veteran's PTSD to his in-service stressors, coupled with the Veteran's lay reports regarding his stressors which, by their nature, cannot be verified, the Board resolves all reasonable doubt in his favor in finding that service connection for PTSD is warranted. 3. Entitlement to service connection for a low back disorder; entitlement to service connection for a skin disorder; entitlement to service connection for a bilateral arm disorder claimed as muscle spasms; entitlement to service connection for hypertension; entitlement to service connection for hyperlipoproteinemia; entitlement to service connection for a bilateral shoulder disorder; and entitlement to service connection for bilateral leg bursitis with muscle spasms. An oral withdrawal of an appeal, such as one made at a hearing, must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018) (the Board must address all three prongs of the DeLisio standard when it applies). 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. Id. In the present case, at his Board hearing, the Veteran indicated that he discussed with the undersigned as well as his representative the issues on appeal. He clearly stated on the record that he wished to withdraw "all the claims except [his claims for] hearing loss, tinnitus, and acquired psychiatric disorder." The undersigned then stated "you understand that I won't be making a decision as to any of those appeals, and they will be dismissed based on your withdrawal. Do you understand that?" The Veteran replied in the affirmative. The issues being withdrawn include: (1) entitlement to service connection for a low back disorder; (2) entitlement to service connection for a skin disorder; (3) entitlement to service connection for a bilateral arm disorder claimed as muscle spasms; (4) entitlement to service connection for hypertension; (5) entitlement to service connection for hyperlipoproteinemia; (6) entitlement to service connection for a bilateral shoulder disorder; and (7) entitlement to service connection for bilateral leg bursitis with muscle spasms. Given that the Veteran's request at his Board hearing to withdraw his appeal as to those issues was (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the claimant, the Board finds that there remain no allegations of errors of fact or law for appellate consideration as to those issues. Accordingly, the Board does not have jurisdiction to review those claims and they are dismissed. REASONS FOR REMAND 1. Entitlement to service connection for right ear hearing loss is remanded. The Veteran contends that service connection for right ear hearing loss is warranted. For purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz 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; see also Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (holding that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss). The Veteran was most recently afforded a VA audiological examination in June 2014. At that time, his puretone thresholds, in decibels, for the right ear were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 20 15 20 35 Speech audiometry revealed speech recognition ability of 100 percent bilaterally. Thus, currently, the Veteran does not meet the criteria for a right ear hearing loss disability for VA purposes. However, given that the Veteran has not been afforded a VA examination since June 2014 and given his lay reports regarding his hearing loss worsening, the Board finds that remand is warranted for additional VA examination. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate clinician to determine the etiology of any diagnosed right ear hearing loss. The examiner must review the claims file. If right ear hearing loss is diagnosed, the examiner is asked to opine whether it is at least as likely as not related to the Veteran's active duty service. The examiner is reminded that it has already been conceded that the Veteran was exposed to acoustic trauma during service. A complete rationale for any medical opinion rendered must be provided. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Martha R. Luboch, 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.