Citation Nr: 18142485 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 14-12 128 DATE: October 16, 2018 ORDER Entitlement to service connection for bilateral tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT The competent, credible and probative lay and medical evidence is in relative equipoise as to whether the Veteran’s bilateral tinnitus had its onset during service. CONCLUSION OF LAW Resolving all doubt in the Veteran’s favor, bilateral tinnitus was incurred in service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Navy during from April 1979 to July 1986. The case is before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Service Connection The Veteran claims that he suffers from bilateral tinnitus attributable to his military service. Generally, service connection requires evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, such as sensorineural hearing loss (i.e., an organic disease of the nervous system), may be presumed to have been incurred in service if it manifests to a compensable degree within one year after discharge from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Alternatively, with chronic diseases shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the disease entity is established, there is no requirement of an evidentiary showing of continuity. If the condition noted during service (or during the presumptive period) is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned, then generally a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that as an alternative to the nexus requirement, service connection for a chronic disease listed under 3.309(a) may be established through a showing of continuity of symptomatology since service). In each case where a Veteran is seeking service connection for a disability, due consideration shall be given to the places, types, and circumstances of the Veteran’s service as shown by the Veteran’s service record, the official history of each organization in which the Veteran served, and the Veteran’s treatment records, and all pertinent medical and lay evidence. See 38 U.S.C. § 1154(a). A Veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms can be perceived or experienced, directly through the senses. 38 C.F.R. § 3.159; Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus. However, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where a lay person is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Tinnitus On the issue of bilateral tinnitus, the Veteran contends that constant exposure to loud noises as a jet engine first degree mechanic (his Military Occupational Specialty) caused his tinnitus. He claims that when he separated from active duty service, he sensed ringing in his ears and thought that such ringing was temporary and would go away. However, the Veteran noticed that the ringing intensified post service. See March 2014 Substantive Appeal (VA Form 9). A review of the record of evidence shows that a June 2009 private audiological evaluation notes that the Veteran reports “ringing” in his ears and that “his ears [felt] stopped up, with tinnitus.” See June 2009 private treatment record. The Veteran was afforded a May 2012 VA examination where the examiner issued an opinion that the “Veteran’s claim of tinnitus is not consistent with noise exposure” and that “there is no diagnosis because there is no pathology to render a diagnosis.” See May 2012 VA treatment record. However, as noted above, lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau, supra.; see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson, supra. Here, the Board notes that the May 2011 VA audiologist observed symptoms of tinnitus as reported by the Veteran. In July 2011, the VA audiologist was unable to provide an etiological opinion as to the Veteran’s tinnitus, while noting that the “Veteran’s claim of tinnitus is not consistent with noise exposure” and that there was no diagnosis because there was no pathology to render a diagnosis. The Veteran reported tinnitus in his lay submissions and to a VA examiner. Most importantly, tinnitus is a disorder that is readily observable by laypersons and does not require medical expertise to establish its existence. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Board acknowledges the May 2012 audiologist’s opinion, but notes that the audiologist based findings on inconsistent reporting and possible intervening causation. However, the Board observes that despite the Veteran’s inconsistent use of descriptive language as to “what tinnitus sounds like,” his subjective impressions highlight the continuity of tinnitus symptomatology from separation—its constancy no matter how characterized. Per se, this constancy is not factored into the calculus of the May 2012 opinion. As such, the Board finds that the VA audiologists’ opinions to be of reduced probative value. Thus, the most probative evidence of record is the Veteran's self-reported history as to the onset of his tinnitus, and he is competent and credible to report when he first noticed ringing in his ears. The Board notes that the Veteran's report of the onset has not waivered throughout the period on appeal. At the very least, the evidence of record is in relative equipoise as to the onset of the Veteran's tinnitus. Therefore, resolving reasonable doubt in the Veteran’s favor, the Board finds that it is at least as likely as not that the Veteran's tinnitus is linked to service. The Veteran is therefore entitled to the benefit of the doubt. See 38 U.S.C. § 5107(b); Gilbert, supra. REASONS FOR REMAND Bilateral hearing loss is remanded. As noted above, the Veteran contends that he was exposed to loud noises as a jet engine mechanic in the United States Navy and moreover was not provided proper equipment to protect his ears. He contends this caused his bilateral hearing loss. Further, he claims that his hearing loss is so severe that he is unable to understand telephonic and personal conversations. According to the Veteran, both his family members and his friends must practically yell when they are talking to him so he can hear the message they are attempting to convey. Additionally, the Veteran contends that his television volume is usually set to the highest available level for him to hear. The Veteran adds that the severity of his hearing loss has caused him embarrassment and loss of social life due to his inability to hear properly. Lastly, the Veteran adds that he has not had any post-service employment that has exposed him to loud noises and that he desperately needs hearing aids, but does not have the financial resources to obtain hearing aids. See March 2014 Substantive Appeal (VA Form 9). A medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (2) establishes that the veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. The third prong could be satisfied by competent evidence showing post-service treatment for a condition or other possible association with military service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). There is competent evidence as noted, to associate the Veteran’s claimed bilateral hearing loss with an established event in service. The Veteran was afforded a VA medical examination in May 2012, which contains a diagnosis of bilateral hearing loss and establishes that the Veteran has a bilateral hearing disability within VA standards. See 38 C.F.R. § 3.385. The examiner notes that the Veteran did not require a hearing conservation program while serving. However, the Veteran’s STRs show that the Veteran did require a hearing conservation program while he was in service and hearing tests showed threshold shifts during hearing tests, which were not acknowledged in the examiner’s report. While the examiner noted during the medical examination that military audiograms did not reveal hearing loss while in or upon separation from the military, the Veteran’s STRs show changes in hearing greater than 20db at separation compared to previous in-service hearing exams. See July 1986 STR. Thus, the Board finds that the May 2012 VA examination report is insufficient to adjudicate the Veteran’s claim for service connection adequately. Although the examiner opined that hearing loss does exists, he stated that it is less likely than not related to service. Here, the Board notes that the Veteran’s STRs show evidence that was not considered. Specifically, the VA examiner did not address the Veteran’s in-service hearing conservation program as well as hearing threshold shifts noted in-service. Therefore, a new VA audiological examination is in order. Finally, the Board notes that the Veteran’s representative has not had an opportunity to submit an Informal Hearing Presentation (IHP) regarding this issue. In order to preserve the Veteran’s due process rights, his representative must be given an opportunity to review the record and provide argument in response to the claim. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with a VA audiologist to assess the nature and etiology of the Veteran’s bilateral hearing loss. The Veteran’s claims file and a copy of this remand should be provided to the examiner. All indicated tests and studies should be conducted. The examination report should reflect that the examiner reviewed the record of evidence. 2. Then, the examiner should determine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s bilateral hearing loss was incurred in, caused by, or otherwise related to active service or within one year of separation from service. The examiner must also note that noise exposure during the Veteran’s military service has been conceded. 3. The examiner must provide all findings, along with a complete rationale for his or her opinion in the examination report. If the opinion requested above cannot be provided without resort to speculation, the examiner must so state and whether additional information is required. 4. After accomplishing any additional development deemed appropriate, readjudicate the claim on appeal. If the benefit sought in connection with the claim remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC) and given the opportunity to respond and appropriate period should be allowed before the record is returned to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Khan, Associate Counsel