Citation Nr: 22015244 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 19-32 435 DATE: March 16, 2022 ORDER Service connection for tinnitus is granted. Service connection for bilateral hearing loss is denied. The claim of entitlement to service connection for sleep apnea is dismissed. The claim of entitlement to service connection for a left knee condition is dismissed. The claim of entitlement to service connection for a right knee condition is dismissed. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, tinnitus was incurred as a result of service. 2. The evidence weighs against a finding that the Veteran has been diagnosed with hearing loss for VA purposes. 3. Prior to the promulgation of a final decision by the Board, the Veteran withdrew his appeal for entitlement to service connection for sleep apnea, a left knee condition and a right knee condition. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.385. 3. The criteria for withdrawal of the claim of entitlement to service connection for sleep apnea by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for withdrawal of the claim of entitlement to service connection for a left knee condition by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 5. The criteria for withdrawal of the claim of entitlement to service connection for a right knee condition by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1996 to July 2003. In May 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. At the May 2021 hearing the Board took testimony concerning claim for increased ratings for a back disability. As discussed during the hearing, the Veteran appealed this issue under the provisions of the recent Appeals Modernization Act (AMA) (the new legal system). The claims addressed herein are being processed under the legacy system (the old system). Under the law, the AMA appellate stream cannot be merged with the legacy claims. Therefore, the AMA appeal will be addressed in a separate decision. Simply stated, legislation has changed how the Board addresses cases. In any event, the Veteran's testimony will be taken into consideration when the claim for increased ratings for a back disability is addressed within the new legislative system. SERVICE CONNECTION Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303 (a). Service connection may 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). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307 (a). When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). To be "shown in service," the disease identity must be established and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303 (b). There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. Certain evidentiary presumptions - such as the presumption of service incurrence for certain diseases, which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service - are provided by law to assist Veterans in establishing service connection for a disability or disabilities. 38 U.S.C. §§ 101, 1112; 38 C.F.R. § 3.304 (b), 3.306, 3.307, 3.309. 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for tinnitus The Veteran seeks service connection for tinnitus as due to military noise exposure. At the May 2021 Board hearing, the Veteran testified that he initially became aware of ringing in his ears during service. He asserted that he was exposed to significant acoustic trauma from jet engine during the performance of his duties as an armament specialist. The Veteran is competent to testify to observable symptoms such as ringing in his ears and has done so credibly during the course of this claim (and the hearing), and a VA examiner in June 2018 appeared to have found the Veteran's account of current tinnitus credible. Layno v. Brown, 6 Vet. App. 465 (1994); Charles v. Principi, 16 Vet. App. 370 (2002) (finding a lay person competent to identify tinnitus). Thus, a current disability has been established. The Veteran's personnel forms DD-214, documents his military occupational specialty was 2W171: aircraft armament systems. The service treatment records reflect that the Veteran was routinely noise exposed. The records do not document any complaints consistent with tinnitus. The Board finds that the Veteran's competent lay account of having been exposed to excessive military noise is consistent with the types, places and circumstances of his service, and exposure to in-service acoustic trauma is conceded. On VA examination in June 2018, the Veteran reported bilateral intermittent tinnitus. He endorsed military noise exposure during the performance of his duties as an ammunition specialist, despite use of double hearing protection. He could not recall the onset of tinnitus. The Veteran denied occupational noise exposure and reported recreational noise exposure from lawn equipment use. The examiner opined that it was less likely than not that the Veteran's tinnitus was caused by or a result of military noise exposure. The examiner based the opinion on the fact that tinnitus was not reported in service and there was no objective evidence of noise injury therein. The examiner also noted that the reported tinnitus was inconsistent with the more recurrent and pervasive tinnitus typically associated with noise-induced hearing loss. A veteran is competent to describe observable symptoms such as ringing in the ears. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Charles, 16 Vet. App. 370, 374-75 (2002). The Veteran testified that tinnitus manifested during service. The Board is cognizant that, while the Veteran has reported onset of tinnitus during active duty service, he has also provided statements inconsistent with this assertion. The Board also acknowledges that the VA examiner provided evidence against the claim. However, because there is a current diagnosis of tinnitus, statements from the Veteran regarding onset of tinnitus during active duty service associated with in-service noise exposure, there is evidence of acoustic trauma during service, and in-service acoustic trauma has been conceded, the Board finds that the competent and credible assertions from the Veteran provides a nexus linking his current tinnitus to his in-service noise exposure. Resolving all reasonable doubt in the Veteran's favor, the Board finds that the competent and credible evidence creates a nexus between the Veteran's current tinnitus and active service. Therefore, service connection for tinnitus is granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-56. 2. Entitlement to service connection for hearing loss The Veteran claims that he currently suffers from bilateral hearing loss incurred in service. The determination of whether a Veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. For the purposes of applying the law administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. "[W]hen audiometric test results at Veteran's separation from service do not meet the regulatory requirements for establishing a disability at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Id. at 157. The service and post service treatment records do not indicate any findings consistent with a diagnosis of hearing loss. On VA examination in June 2018, the puretone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz in the right ear were 5, 0, 5, and 5, and in the left ear were 5, 0, 5, and 55. The puretone threshold average in the right ear was 4 and in the left ear it was 6 decibels. Speech discrimination was 96 percent, bilaterally. Simply stated, while the Veteran's hearing may not be what it once was, there is no evidence of hearing loss for VA purposes. While the Veteran is competent to report difficulty hearing, he is not competent to assess whether he has disabling hearing loss for VA purposes. See Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007). As there is no current diagnosis of hearing loss contained within the record, service connection is not warranted. See 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). Withdrawal 3. Entitlement to service connection for sleep apnea 4. Entitlement to service connection for a left knee condition 5. Entitlement to service connection for a right knee condition 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. § 20.204. Withdrawal may be made by the appellant or by his authorized representative, and except where withdrawn on record at a hearing, must be in writing. 38 C.F.R. § 20.204. With regard to the appeal of entitlement to service connection for sleep apnea, a left knee condition and a right knee condition, the issues were withdrawn on record by the Veteran at his Board hearing in May 2021. The Veteran's oral statement during his hearing, memorialized in writing in the transcript, satisfies the requirements for the withdrawal of a substantive appeal. See, e.g., Tomlin v. Brown, 5 Vet. App. 355 (1993). The Veteran also submitted a written statement that same month withdrawing these claims. There remain no allegations of errors of fact or law for appellate consideration as to those issues. Accordingly, as to the claims for entitlement to entitlement to service connection for sleep apnea, a left knee condition and a right knee condition, the Board does not have jurisdiction to review the appeal and they are dismissed. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.