Citation Nr: 21041753 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 18-13 350 DATE: July 10, 2021 ORDER The appeal as to the issue of entitlement to service connection for headaches is dismissed. Entitlement to service connection for left ear hearing loss disability is granted. REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. FINDINGS OF FACT 1. At a January 2021 hearing before the Board of Veterans' Appeals (Board), prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, that a withdrawal of the appeal as to the issue of entitlement to service connection for migraines is requested. 2. The Veteran had preexisting left ear hearing loss that was noted at entry into service. 3. The Veteran's preexisting left ear hearing loss was aggravated by his active duty service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the appellant have been met. 38 U.S.C. U.S.C. § 7105 (2018); 38 C.F.R. § 19.55 (2020). 2. The criteria for service connection for left ear hearing loss disability have been met. 38 U.S.C. §§ 1110, 1153, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.385 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marine Corps (USMC) from September 2010 to September 2014. This matter comes to the Board on appeal from January 2016 and August 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the Board in January 2021. A transcript of the hearing is associated with the claims file. Service Connection Migraine Headaches 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55.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 In the present case, the appellant has withdrawn the appeal of the issue of entitlement to service connection for migraine headaches. Therefore, there remain no allegations of errors of fact or law for appellate consideration with respect to that issue. Accordingly, the Board does not have jurisdiction to review the appeal of that issue, and it is dismissed. Service Connection Left Ear Hearing Loss At the outset, the Board notes that the Veteran was afforded an additional VA examination in November 2018. However, the November 2018 examination was not considered by the Agency of Original Jurisdiction (AOJ) in a supplemental statement of the case (SSOC). In light of the Board's favorable decision herein, the Veteran is not prejudiced by the failure of the AOJ to consider that examination, and there is no bar to proceeding with a final decision in the issue of entitlement to service connection for left ear hearing loss disability. The Board finds that the Veteran had preexisting left ear hearing loss for VA purposes that was "noted" upon his entrance into active duty service. Specifically, the Veteran's May 2010 entrance examination showed the Veteran with hearing loss of the left ear at 55 decibel loss at 4000 Hertz. 38 C.F.R. § 3.385. As the Veteran's preexisting left ear hearing loss was noted at the time of entry into service, the claim of service connection for left ear hearing loss will be considered based on a theory of aggravation of a preexisting disability. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. For the presumption of aggravation to arise, the evidence must show that there was a permanent increase in the severity of left ear hearing loss during the Veteran's active service. The Veteran contends that his left ear hearing loss was worsened by his active duty service. The Veteran testified that his military occupation specialty (MOS) during service was Infantry Mortarman and as part of his duties he was exposed to machine guns, mortars, and improvised explosive device (IED) explosions without hearing protection while he was deployed to Afghanistan. He noted that he was provided hearing protection when he was on the range or had training. He reported that he did not seek treatment for hearing loss during service, but he began to notice a decrease in his hearing acuity while deployed. The service treatment records (STRs) do not show any complaints or treatment for hearing loss. However, the Board finds the Veteran is competent to report that he experienced symptoms of hearing loss during his active service. His statements are credible and entitled to probative weight, as they are internally consistent and consistent with other evidence of record. As the Veteran has credibly testified to his exposure to various weapons, artillery fire, and explosives during service, the Board finds the Veteran sustained in-service acoustic trauma. The Veteran was afforded a VA audiology evaluation in June 2016. Audiometric testing result at that time were as follows: Hertz 500 1000 2000 3000 4000 Left Ear 15 10 10 20 75 The examiner diagnosed sensorineural hearing loss in the left ear and opined that the Veteran's left ear hearing loss disability was less likely than not caused by or as a result of his active service. The examiner indicated that the Veteran's left ear hearing loss preexisted his active service and was not aggravated beyond the natural progression in service because the Veteran's exit hearing examination dated in March 2014 indicated no significant threshold shift during service. The Board notes that while the June 2016 VA examiner indicated that the Veteran's March 2014 separation examination documented no change in hearing acuity of the left ear, the STRs associated with the claims file do not include copies of any audiograms conducted during the Veteran's active duty service. The Veteran was afforded a second VA examination in November 2018. The examiner again diagnosed left ear sensorineural hearing loss and similarly opined that the Veteran's left ear hearing loss preexisted his active service and was not aggravated beyond the natural progression in service. The examiner acknowledged that the March 2014 audiogram was not of record, but indicated that since the March 2016 examiner reviewed the record, he agreed with the prior examiner. The Board finds that the June 2016 and November 2018 VA medical opinions are inadequate for adjudication purposes. In this regard, the Board notes that the VA opinions appear to be based upon the finding of no significant threshold changes in both ears during the Veteran's active service, and no complaints of hearing loss or findings of aggravation of hearing loss during service. The Board notes that the absence in-service evidence of a hearing disability during service is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Further, the examiner's failed to consider the Veteran's lay statements regarding his in-service decreased hearing acuity. As such, the VA medical opinions of record are of no probative value. As discussed above, review of the claims record shows left ear hearing loss disability was "noted" at entry in May 2010. Thus, the presumption of soundness does not apply. The evidence demonstrates that the Veteran was exposed to acoustic trauma during active service from weapons, artillery fire, and explosions. The Veteran has presented competent and credible evidence of in-service acoustic trauma. Additionally, the March 2016 audiometric findings, conducted only a year and a half after his separation from service, show that the Veteran's hearing acuity had diminished in his left ear since the audiometric testing conducted at his entrance to service. As noted, there is no audiogram to document his hearing acuity at separation from service. As such, the Board finds the lay statements of record to be credible and competent evidence of the Veteran's symptoms during and since service. Accordingly, the Board finds that the evidence for and against the claim is at least in equipoise. Therefore, the benefit of the doubt must be resolved in favor of the Veteran, and entitlement to service connection for left ear hearing loss disability is warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Veteran has asserted that he first experienced symptoms of right and left knee pain while he was deployed to Afghanistan, and that those symptoms have continued to progress since his separation from service. He reported that he did not sustain any injury to his knees or seek treatment for his pain during service. He reported that during his deployment he was required to wear 120 pounds of weapons and gear and go on patrols up and down rugged mountain terrain which wore out his knees. As the Veteran has reported that he had knee problems which began during service and have continued since that time, the Board finds the Veteran should be scheduled for a VA examination to determine the nature and etiology of any current right and/or left knee disabilities. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Identify and obtain the Veteran's service personnel records and a copy of his DD Form 214(s), and verify the dates and locations of the Veteran's service, to specifically include any service in Southwest Asia from August 2, 1990, forward. 2. Then, schedule the Veteran for an appropriate examination to determine the nature and etiology of any currently present right and/or left knee disabilities. The claims file must be made available to, and reviewed by the examiner. Any indicated tests and studies must be performed, to specifically include diagnostic imaging. Based on the examination of the Veteran and review of the record, the examiner must first identify all right and/or left knee disabilities present during the pendency of the appeal, or proximate thereto. Then, for each identified disability, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that such disability had its onset during the Veteran's active service, or is otherwise etiologically related to such service. A complete and detailed rationale for all opinions expressed must be provided. 3. Confirm that the VA examination report and all medical opinions provided comport with this remand, and undertake any other development determined to be warranted. 4. Then, readjudicate the remaining issues on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Cryan, 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.