Citation Nr: 21029423 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 20-10 789 DATE: May 13, 2021 ORDER Service connection for right knee condition is granted. Service connection for left knee condition is dismissed. Service connection for any back condition is granted. Service connection for left lower extremity disability is granted. Service connection for right lower extremity disability is granted. Service connection for bilateral hearing loss is granted. Service connection for ear disease to include tinnitus and vertigo is granted. FINDINGS OF FACT 1. The Veteran's right knee condition had its onset in service. 2. During the February 2021 Board hearing, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he desired to withdraw his appeal regarding the claim for entitlement to a compensable rating for a left knee condition. 3. The Veteran's back condition began during active duty service. 4. The Veteran has a left lower extremity disability is due to his service-connected back condition. 5. The Veteran has a right lower disability is secondary to his service-connected back condition. 6. Bilateral hearing loss had its onset in service. 7. Ear disease, to include tinnitus and vertigo had its onset in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right knee condition have been met. 38 U.S.C. §§ 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for withdrawal of the appeal regarding a claim of entitlement to service-connection for a left knee condition have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for entitlement to service connection for a back condition have been met. 38 U.S.C. §§ 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to service connection for left lower nerve condition secondary to a back condition have been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 5. The criteria for entitlement to service connection for right lower nerve condition secondary to a back condition have been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 6. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303, 3.307, 3.309. 7. The criteria for entitlement to service connection for ear disease, to include tinnitus and vertigo have been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1959 to May 1962. The Veteran and his wife testified at a videoconference Board hearing before the undersigned VLJ in February 2021. 1. Withdrawal of claim of entitlement to service connection for left knee condition. The Board may dismiss any claim that fails to allege a specific error of fact or law in the decision being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all of the issues on appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the veteran or by his or her authorized representative. Id. The Veteran requested the withdrawal of his claim for entitlements to service connection for a left knee condition during the February 2021 Board hearing. The claims file includes a written transcript of this hearing. Thus, there are no allegations of errors of fact or law for appellate consideration. 38 C.F.R. § 20.202. The Board does not have jurisdiction to review the claim and it is therefore dismissed. Service Connection The Veteran asserts that service connection is warranted for low back, right knee, bilateral nerve, tinnitus and bilateral hearing loss conditions. Service connection may be granted for a disability resulting from disease or injury incurred in, or aggravated by, service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009), see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection will be presumed for certain diseases, if manifested to a compensable degree within one year after discharge from active duty. 38 U.S.C. §§ 1101(3), 1112(a)(1); 38 C.F.R. §§ 3.307, 3.309(a). In this case, the Veteran did not manifest a chronic, tropical, prisoner of war related disease, or a disease associated with herbicide agents within the applicable time period, hence, the presumption does not apply. Secondary service connection may also be established for a disability which is aggravated by a service-connected disability. In order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) competent evidence establishing that the service-connected disability caused or aggravated the nonservice-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303 (d). A lay person is competent to report on the onset and reoccurrence of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). When there is an approximate balance of positive and negative evidence regarding a material issue, the Veteran is given the benefit of the doubt. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 2. Entitlement to service connection for right knee condition. The Veteran claims entitlement to service connection for a right knee condition due to his military service. The Veteran has a diagnosed right knee disability. See August 2014 Private Treatment Records. He explains that his right knee disability is due to injury incurred during a battle drill training while on active duty service. See February 2021 Board Transcript, page 25. The Veteran states that he was required to carry heavy machinery during training maneuvers in the performance of his duties while in Germany, resulting in his current right knee disability. Id. The Veteran's military personnel records support his reports of being a light weapons infantryman. The Veteran provided a private opinion by his primary care physician supporting his claim of entitlement to service connection. See Dr. S.B. letter dated December 2017. Dr. S.B. confirmed diagnosis of a right knee condition and opined that the Veteran's right knee condition was caused by carrying heavy equipment for extended periods in his military duties as an infantry man on active duty. This is highly probative evidence in favor of the claim, and there is no evidence in the record to the contrary. Based on the above, the evidence supports a grant of service connection for a right knee condition. 38 C.F.R. § 3.303. The appeal for service connection for a right knee disability is granted. 3. Entitlement to service connection for a back condition. The Veteran claims entitlement to service connection for a lower back condition due to his military service. He states that his back pain is due to injury incurred during training while on active duty service. The Veteran explains that he was required to carry heavy machinery as a light weapons infantryman during training maneuvers while in Germany, resulting in his current back disability. The Veteran also provided a private opinion by his primary care physician, Dr. S.B., to support his claim of service connection for a back condition. See Dr. S.B.'s letter dated December 2017. Dr. S.B. confirmed the Veteran's diagnosis of a lumbar spine radiculopathy disability and opined that the Veteran's lumbar spine condition was caused by carrying heavy equipment for extended periods in his military duties as an infantry man. This is highly probative evidence in favor of the claim, and there is no evidence in the record to the contrary. Based on the above, the evidence supports a grant of service connection for a back disability. 38 C.F.R. § 3.303. The appeal for service connection for a back disability is granted. 4. Entitlement to service connection for left lower nerve condition to include as secondary to any back condition. 5. Entitlement to service connection for right lower nerve condition to include as secondary to any back condition. Here, the Veteran's VA medical records reflect treatment for right and left lower extremity peripheral neuropathy. See February 2016, January 2015, and March 2017 VA Treatment Records. The critical question in this case is the etiology of the right and left lower nerve conditions. The Board is required to consider theories of entitlement to benefits that are either raised by the claimant or reasonably raised by the record. Lynch v. Wilkie, 30 Vet. App. 296, 304 (2018). In this case, the Veteran's primary theory of entitlement is that his right and left lower extremity peripheral neuropathy is secondary to his now service-connected back disability. The evidence of record includes the December 2017 opinion from the Veteran's primary physician opinion that that the Veteran experiences numbness/paresthesias along the lateral aspect of his legs as symptoms of his lumbar spine condition. See letter from Dr. S.B. dated December 2017. Thereafter, after a review of the evidence of record, the Board finds that the preponderance of the evidence supports awarding service connection for right and left lower extremity peripheral neuropathy as being of service origin as secondary to the herein granted service-connected back disability. See 38 C.F.R. § 3.310 6. Entitlement to service connection for bilateral hearing loss. 7. Entitlement to service connection for any ear disease to include tinnitus and vertigo. The Veteran claims entitlement to bilateral hearing loss due to injury following exposure to hazardous noise while on active duty. The Veteran's military occupational specialty was an infantryman. The Veteran explained that he was exposed to hazardous noise without hearing protection from weapons such as the Browning Automatic Rifle and the Howitzer while in service. See September 2016 Statement in Support of Claim. See also April 2018 Statement. Additionally, a July 1959 service treatment record documents the Veteran's complaint of dizziness. Therefore, in-service injury is conceded. See February 2021 Hearing Transcript. The Veteran also has a current diagnosis of bilateral hearing loss. See October 2015 VA Hearing Examination. Therefore, the Board determines that the requirement of a current disability is satisfied. The Board finds that service connection for as bilateral hearing loss as well ear disease to include tinnitus and vertigo is warranted. The Veteran competently and credibly reports that he experienced tinnitus during the appeal period. See Layno v. Brown, 6 Vet. App. 465 (1994); See also February 2021 Hearing Transcript. The Veteran is competent to describe symptoms observable to his senses; as such, he is also competent to diagnose tinnitus. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Charles v. Principi, 16 Vet. App. 370, 374 (2003). The Board finds him credible, as his statements have been detailed and consistent. The Board notes the October 2015 and January 2018 negative nexus VA medical opinions. However, even though his service treatment records are silent for reports of tinnitus and hearing loss in service, the Veteran is competent to give reports of exposure to hazardous noise while in service and continued symptoms of hearing loss and ringing since service. Additionally, an August 2016 private examiner examined the Veteran and opined that the Veteran's hearing loss, tinnitus and dizziness was secondary to his longstanding history of loud noise exposure and ear trauma from his active duty service. Thus, all three elements necessary to establish service connection have been met. See 38 C.F.R. § 3.303, 3.307, 3.309; Fountain v. McDonald, 27 Vet. App. 258 (2015). As such, service connection for bilateral hearing loss and as well ear disease, to include tinnitus and vertigo is warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Booker 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.