Citation Nr: 23041003 Decision Date: 07/27/23 Archive Date: 07/26/23 DOCKET NO. 19-32 727A DATE: July 27, 2023 ORDER The issue of entitlement to service connection for bilateral hearing loss is dismissed. Entitlement to service connection for a right hip disability is granted. FINDINGS OF FACT 1. During the October 12, 2022, Board hearing, and prior to the promulgation of a decision in the appeal, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew his appeal of the claim for entitlement to service connection for bilateral hearing loss. 2. Resolving reasonable doubt in his favor, the evidence is at least in approximate balance as to whether the Veteran's right hip disability is related to his service, including a July 2005 improvised explosive device (IED) attack and August 2005 vehicular collision. CONCLUSIONS OF LAW 1. The criteria for withdrawal by the Veteran of the claim for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 19.55. 2. The criteria for entitlement to service connection for a right hip disability have been met. 38 U.S.C. §§?1110, 1131, 1154, 5107; 38?C.F.R. §§?3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2002 to June 2006, including service in Southwest Asia during the Iraq War. He is a recipient of, among other decorations, the Army Commendation Medal with Valor Device and the Combat Action Badge. These matters come to the Board of Veterans' Appeals (Board) on appeal from May 2018 and October 2018 rating decisions issued by a VA Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a virtual Board hearing in October 2022. A transcript has been associated with the record. The Board notes that the Veteran's August 2019 VA Form 21-0958, Notice of Disagreement (NOD), also appealed the denial of the Veteran's tinnitus and lower back service connection claims. In a subsequent September 2019 rating decision, the Veteran was granted entitlement to service connection for tinnitus and for lumbosacral strain, both effective August 23, 2017. Therefore, these claims are no longer on appeal here. See Henderson v. West, 11?Vet. App.?245, 246 (1998) (per curiam order) (holding issue to be moot on appeal where service connection, the benefit sought, had been granted by the RO). Lastly, the Board notes that relevant evidence has been added to the record since the most recent issuance of a Statement of the Case (SSOC) in September 2019, including since the October 2022 Board hearing in which the Veteran's representative's waived AOJ consideration of such evidence in the first instance. However, given the nature of its decision in the present appeal, the Board finds that there is no prejudice in proceeding to adjudicate the Veteran's claim on the merits. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21?Vet. App.?545, 552 (2008). 1. The issue of entitlement to service connection for bilateral hearing loss is dismissed. An appeal may be withdrawn as to any or all issues involved in an 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. To withdraw an appeal for Legacy claims, a withdrawal must include: a) the name of the veteran, or the name of the claimant or appellant if other than the veteran; b) the applicable VA file number; and c) a statement that the appeal is withdrawn. Id. at § 19.55(b)(1). If the appeal involves multiple issues, the withdrawal must specify either that the appeal is withdrawn in its entirety, or list the issue or issues withdrawn from the appeal. Id. To be considered valid, an oral withdrawal of a claim must be: 1) explicit; 2) unambiguous; and 3) done with a full understanding of the consequences of such action by the claimant. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see also Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018). During the October 2022 Board hearing, the Veteran confirmed that he wished to withdraw his claim for entitlement to service connection for hearing loss. The Veteran confirmed that he wanted to withdraw the appeal as to that issue, confirmed that he understood the consequences of the withdrawal, and confirmed that he understood that if he wished to pursue the claim later, a new claim would need to be filed. See October 2022 hearing transcript. The Board finds the Veteran's oral withdrawal was explicit, unambiguous, and done with full understanding of the consequences thereof, and that it therefore meets the requirements for a valid oral withdrawal of a claim on appeal before the Board. See DeLisio, 25 Vet. App. at 57. The Veteran's appeal seeking entitlement to service connection for bilateral hearing loss is therefore deemed withdrawn and, as there remain no outstanding allegations of errors of fact or law for appellate consideration pertaining to this issue, the appeal is dismissed. See 38 U.S.C. § 7105. 2. Entitlement to service connection for a right hip disability is granted. The Veteran contends that he has a current right hip disability which is related to his service; specifically, he contends that he has a current right hip disability which is related to a July 2005 improvised explosive device (IED) attack and August 2005 vehicular collision, both of which he contends occurred during his service. Missing Service Records As an initial matter, the Board notes that at least some of the Veteran's service personnel and treatment records are of record. However, following requests for his records submitted in August and October 2017 and in January, February, and March 2018, VA sent the Veteran a letter in April 2018 stating that it had determined that his service treatment records could not be located and were, therefore, unavailable for review. VA's letter noted that the Records Management Center (RMC) had responded to its August 2017 request by stating that "all available records were provided[,]" as well as that a June 2006 Department of the Army memorandum stating that the Veteran "did not have [m]edical [r]ecords when he was out-processed" at the conclusion of his service. When a veteran's records are unavailable through no fault of their own, VA's duty to assist them in the development of their claim (including by seeking alternate records) is heightened; the Board also has a heightened duty to advise them to submit alternative forms of evidence, to assist them in obtaining such alternative evidence, and to explain any findings and conclusions. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991) (discussing the Board's obligation to explain its findings and consider whether the benefit-of-the-doubt rule is heightened in cases where service medical records are presumed destroyed); see also Washington v. Nicholson, 19 Vet. App. 362, 369-71 (2005) (explaining the heightened duty to assist when service records are missing, including by pursuing additional means of substantiating a veteran's claim). In such instances, the legal standard for proving a claim for service connection is not diminished; rather, the Board's obligation to evaluate and discuss all evidence that may be favorable to the Veteran is elevated. See Russo v. Brown, 9 Vet. App. 46 (1996). There is no presumption, either in favor of the claimant or against VA (or vice versa), arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), aff'd 455 F.3d 1346 (Fed. Cir. 2006). Additionally, for veterans who have engaged in combat, satisfactory lay or other evidence can establish that an injury was incurred in service even in the absence of an official record of any such associated incident, event, or injury. 38 U.S.C. § 1154(b); see also 38 C.F.R. § 3.304(d) ("[s]atisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation."). This relaxed evidentiary burden is based on the recognition that official records documenting proof of service connection during combat situations may be unavailable or nonexistent. See Maxson v. Gober, 230 F.3d 1330, 1332 (2000). Further, this combat presumption applies both to the potential causes of a disability as well as to whether the disability itself was incurred in service. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). Service Connection Generally, service connection may be granted if the evidence demonstrates that a veteran's current disability resulted from an injury or disease which was incurred in, or aggravated by, active military service. See 38?U.S.C. §§?1110, 1131; 38?C.F.R. §?3.303(a). To establish entitlement to service connection for any disability, the record must contain competent evidence of (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to provide "evidence not requiring that the proponent have specialized education, training, or experience." 38 C.F.R. § 3.159(a)(2). "Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person." See id. A layperson is also competent to report on the onset and continuity of their 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 the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, in any case where a veteran engaged in combat during active service, lay or other evidence of service incurrence of a combat-related disease or injury will be considered sufficient proof of service connection if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence during service and, to that end, VA shall resolve every reasonable doubt in favor of the veteran. 38 U.S.C. § 1154(b). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence persuasively favors one side or the other. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the veteran. 38 U.S.C. §?5107(b); 38?C.F.R. §?3.102; Lynch, 21 F.4th at 781. Relevant Evidence In a November 2001 Report of Medical Examination (ROME), completed prior to the Veteran's entry into service, no musculoskeletal abnormalities or abnormalities of the lower extremities were noted. In an August 2005 Recommendation for Award (RFA), the Veteran was described as having experienced an IED attack which disabled his M3A2 Bradley fighting vehicle in July 2005. The Veteran was also described as having been "involved in several IED attacks" and as having participated in over 120 combat missions. In a February 2006 Report of Medical Assessment (ROMA), the Veteran reported that he had experienced a "Humvee accident" in August 2005 while deployed in Iraq in which he hit his head on a 0.50 caliber machine gun, resulting in neck pain, back pain, and tinnitus. In his August 2017 VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits (initial claim), the Veteran stated that he was "exposed to IED explosions and accidents when [he] was deployed to Iraq." The Veteran testified before the undersigned VLJ in an October 2022 virtual Board hearing. The Veteran stated that he had no right hip complaints prior to his service; he also noted that he had experienced several vehicular collisions and IED attacks during service. The Veteran stated that he did not report experiencing hip symptoms related to in-service incidents, and that he believed his hip symptoms were connected to his lower back disability. He confirmed that he experienced right hip symptoms during his service and following his discharge, including that he sought chiropractic care within a year thereof from a provider which he believed had since gone out of business. The Veteran also confirmed that he continued to experience symptoms in his right hip at present. The Veteran was afforded a VA hip and thigh conditions examination in January 2023. The VA examiner provided a diagnosis of bilateral hip strain, noting the Veteran's report that he was struck by a 10-to-14-pound ammunition canister projectile "at his low back on [the right] side to midline" during his service in 2004 and that he had since experienced right hip pain and inflammation. He also reported experiencing flare-ups of his right hip pain twice per month, with "very little hip movement" during flare-ups. The VA examiner indicated that the Veteran experienced diminished right hip range of motion and pain in all ranges. The examiner opined that the Veteran's right hip disability was at least as likely as not related to his service, noting his reported in-service injury and evidence of chronicity since his discharge. Discussion Resolving reasonable doubt in his favor, the Board finds that the evidence establishes that the Veteran has a current right hip disability which is at least as likely as not related to an in-service injury or event - including, specifically, his experience of having been struck in the right side / low back by an ammunition canister projectile or in a similar IED attack during his deployment in Iraq during the Iraq War. As noted above, the Veteran has received military decorations consistent with combat service, further verified by those service records which are available; as such, the Veteran's experience of combat during service is conceded. Moreover, the Board is inclined to resolve the benefit of the doubt regarding the details of such combat in the Veteran's favor, given VA's finding that his service personnel and treatment records are at least partially incomplete through no fault of his own. Therefore, although the Veteran's service records do not document the particular details of the injury he contends occurred as a result of such combat, the Board finds that he is nevertheless entitled to the statutory presumptions available for combat veterans. The Board further finds that the Veteran's lay statements, including his August 2017 initial claim, October 2022 Board hearing testimony, and those statements described by the January 2023 VA examiner, are satisfactory to establish that he experienced physical trauma during his service related to a vehicular collision and/or IED attack. (Continued on the next page) ? Importantly, the Board notes that the January 2023 VA examiner found that the Veteran had a current right hip disability, that its symptoms were consistent with the injury he describes having received during his service, and that it was at least as likely as not related to his service accordingly. There is no medical evidence of record suggesting an alternative or different cause of his right hip disability other than the Veteran's suggestion that it may be secondary to his lumbosacral strain - for which he is already service-connected and which, the Board notes, was caused by the same in-service incident. Accordingly, and resolving all doubt in the Veteran's favor, the Board finds that the evidence is at least in approximate balance as to whether the Veteran's right hip disability is related to his active-duty service and, therefore, that entitlement to service connection for a right hip disability is warranted. See Lynch, 21 F4th at 776. The appeal is granted. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David A. F. Litvak, Associate 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.