Case A26039553

Summary

The Veteran, who served from September 2012 to September 2013, appeals the denial of service connection for acne vulgaris and a left foot disability, and the grant of service connection for tinnitus. The Veteran withdrew the appeal for acne vulgaris at a Board hearing, leading to its dismissal. For tinnitus, the Veteran claimed exposure to acoustic trauma during service and continuous symptoms since discharge. While a VA examiner initially opined negatively due to a lack of in-service hearing shift and a post-deployment assessment denial, the Board found the Veteran's lay statements credible. Considering the subjective nature of tinnitus, conceded noise exposure, and the Veteran's consistent complaints, the Board resolved reasonable doubt in his favor and granted service connection for tinnitus. The claim for a left foot disability was remanded due to a pre-decisional duty to assist error. Service treatment records indicated a right foot injury and profile, but the Veteran's left foot claim, initially secondary to the right, was not adequately developed with a VA examination or opinion before the initial decision. The remand requires a VA examination to determine if the left foot disability is at least as likely as not caused by service or consistent with the claimed mechanism of injury.

Full Decision Text

Citation Nr: A26039553
Decision Date: 04/28/26	Archive Date: 04/28/26

DOCKET NO. 201003-112979
DATE: April 28, 2026

ORDER

The appeal for entitlement to a compensable rating for acne vulgaris is dismissed.

Entitlement to service connection for tinnitus is granted.

REMANDED

Entitlement to service connection for a left foot disability is remanded.

FINDINGS OF FACT

1. In September 2024, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of the appeal for entitlement to a compensable rating for acne vulgaris is requested.

2. The Veteran's tinnitus had an onset during service.

CONCLUSIONS OF LAW

1. The criteria for withdrawal of the appeal for entitlement to a compensable rating for acne vulgaris by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

2. The criteria for service connection for tinnitus have been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from September 2012 to September 2013.

The rating decision on appeal was issued in April 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

In the October 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held in September 2024. Therefore, the Board may only consider the evidence of record at the time of the April 2020 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. 

However, because the Board is remanding the claim of entitlement to service connection for a left foot disability, any evidence the Board could not consider will be considered by the AOJ in the adjudication of the claim. 38 C.F.R. § 3.103(c)(2)(ii).

1. Entitlement to a compensable rating for acne vulgaris.

The Board may dismiss any appeal which fails to identify the specific determination with which the claimant disagrees. 38 U.S.C. § 7105(d). 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. § 20.205. Withdrawal may be made by an appellant or an appellant's authorized representative. Id. 

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 appellant. Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018); DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011).

In September 2024, the Veteran withdrew the issue of entitlement to a compensable rating for acne vulgaris orally at the Board hearing. See September 2024 BVA Hearing Transcript, pages 2-3. All of the aforementioned requirements have been met. Accordingly, the Board does not have jurisdiction to review the appeal as to this issue and it is dismissed.

2. Entitlement to service connection for tinnitus.

The Veteran seeks entitlement to service connection for tinnitus. He asserts he was exposed to acoustic trauma during service, and he has experienced tinnitus since discharge from service.

First, the Veteran has a current diagnosis of tinnitus. See April 2020 VA examination. As such, element one of service connection is met.

Next, the AOJ made a favorable finding that the Veteran had hazardous noise exposure during service. See April 2020 rating decision. As such, element two of service connection is met.

As for element three, nexus, the Board notes the April 2020 VA examiner opined the Veteran's tinnitus was
 review the appeal as to this issue and it is dismissed.

2. Entitlement to service connection for tinnitus.

The Veteran seeks entitlement to service connection for tinnitus. He asserts he was exposed to acoustic trauma during service, and he has experienced tinnitus since discharge from service.

First, the Veteran has a current diagnosis of tinnitus. See April 2020 VA examination. As such, element one of service connection is met.

Next, the AOJ made a favorable finding that the Veteran had hazardous noise exposure during service. See April 2020 rating decision. As such, element two of service connection is met.

As for element three, nexus, the Board notes the April 2020 VA examiner opined the Veteran's tinnitus was not due to service based on a lack of an in-service shift in hearing and the Veteran's denial of ringing in the ears on a post-deployment health assessment from February 2014. However, the Veteran asserts that his tinnitus began during military service and he credibly described experiencing tinnitus during and post service. See, e.g., April 2020 VA examination; September 2024 BVA Hearing Transcript, page 5. A veteran's lay statements may be sufficient evidence in a claim for service connection. See 38 C.F.R. § 3.303(a); see also 38 U.S.C. § 1154(a) (requiring VA to include in its service connection regulations that due consideration be given to all pertinent medical and lay evidence). Here, the Veteran competently and credibly stated that he began experiencing symptoms of tinnitus in service which have continued since that time. Additionally, the Court of Appeals for Veterans Claims has specifically held that symptoms of tinnitus are capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002).

Due to the inherently subjective nature of tinnitus, the conceded in-service exposure to military noise, his competent and credible complaints of ringing in the ears that began during service, and his lay statements regarding the continuity of symptoms, reasonable doubt is resolved in his favor and service connection for tinnitus is granted.

REASONS FOR REMAND

3. Entitlement to service connection for a left foot disability.

The Veteran seeks entitlement to service connection for a left foot disability. 

The AOJ made a favorable finding that the Veteran has a current diagnosis of left foot pain. See April 2020 rating decision.

The Veteran asserts he injured his foot during service, and he has continued to experience symptoms since discharge. Of note, the Veteran was notified in November 2015 that his service treatment records were unavailable. In a case like this, there is a heightened obligation for VA to assist the claimant in the development of the claim and to provide reasons or bases for any adverse decision rendered without these records. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).

The Board finds there was a pre-decisional duty to assist error. The Veteran originally claimed his left foot as secondary to his right foot. See December 2019 VA Form 21-526EZ. Available service treatment records document the Veteran had a right foot injury and was placed on a profile in December 2013. However, prior to the decision on appeal, the Veteran was not afforded a VA examination. 

On remand, the Veteran should be afforded a VA examination, and a medical opinion should be obtained. 

The matter is REMANDED for the following action:

Afford the Veteran a VA examination for his claimed left foot disability. The entire file must be made available to the examiner.

The examiner must opine whether the Veteran's left foot disability/functional impairment is approximately at least as likely as not caused by his time in service. The examiner must indicate whether any pathology/disease process associated with the Veteran's left foot is consistent with the mechanism of injury claimed by the Veteran.

A complete rationale must be provided for all opinions expressed.

 

 

TANYA SMITH

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	L. Andersen, 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.