Citation Nr: 18143027 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 16-23 791 DATE: October 17, 2018 ORDER Service connection for tinnitus is granted. REMANDED The appeal for service connection for bilateral hearing loss is remanded. The appeal for an initial rating greater than 50 percent for an anxiety disorder, not otherwise specified, is remanded. The claim for a total disability rating for individual unemployability (TDIU) due to service-connected disability is remanded. FINDING OF FACT Resolving all doubt in the Veteran’s favor, tinnitus had its onset during his service. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1970 to April 1972. The Board has added the issue of entitlement to a TDIU as the claim was reasonably raised by the record in the Veteran’s February 2015 notice of disagreement, where he asserted being unemployable due to his service-connected psychiatric disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Service connection for tinnitus Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also 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). Direct service connection may not be granted without evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C. § 1112; 38 C.F.R. § 3.304. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, for Veterans who served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including tinnitus, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). As an initial matter, the Board finds that the Veteran has a current diagnosis of tinnitus. In this regard, the Veteran competently and credibly reports experiencing ringing in the ears. Moreover, the August 2014 VA examiner confirmed that the Veteran has tinnitus. See August 2014 VA examination report. The Veteran asserts that his tinnitus is directly related to noise exposure in service. During the August 2014 VA examination, he reported exposure to rifle fire in service. Additionally, in a February 2015 statement, he reported that his hearing loss and ringing in the ears started in basic training after a hand grenade went off accidentally. He reported that he was close to the grenade. He also reported being exposed to machine gun and other weapons fire without hearing protection. During an April 2011 VA audiology consult, the Veteran reported experiencing tinnitus in service when he stood 5-10 feet from mortars which were fired during weekly live fire exercises. Service personnel records confirm that the Veteran was awarded a sharpshooter badge. See DD-214. Thus, the Board finds that the Veteran was exposed to noise while performing his duties in service. Consequently, the remaining inquiry is whether the Veteran’s current tinnitus is related to such in-service noise exposure. The evidence of record is sufficient to find that the Veteran’s tinnitus is directly related to service. In this regard, the Board finds that there is credible lay evidence of both in-service incurrence, and a continuity of tinnitus symptoms beginning during service and continuing since discharge. The Board has no reason to doubt the veracity of the Veteran’s statements regarding the onset of his tinnitus. As tinnitus is observable through the senses, and is not a disability that requires medical testing to determine, the Board finds that the Veteran is competent to indicate that he has had the disability and for how long. He has provided consistent statements to both VA and to physicians as to the date of onset and progression of his tinnitus disability. It light of the foregoing, the Board resolves all doubt in favor of the Veteran and finds that tinnitus had its onset during his service. Service connection is warranted. 38 U.S.C. 5107 (b); 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND 1. The appeal for service connection for bilateral hearing loss is remanded. The Veteran was provided with a VA audiological examination in August 2014. The August 2014 VA audiological examiner found that the Veteran had current hearing loss that met the requirements for a hearing loss disability under VA regulations, and that the Veteran was exposed to noise during service, but determined that any current hearing loss was less likely than not related to service. The examiner based the determination on his observation of a lack of a threshold shift in the Veteran’s hearing between service entrance and separation. However, the examiner did not explain why the shift, or lack thereof, in the hearing threshold was clinically significant in answering whether, from a medical perspective, the Veteran’s current hearing loss disability was due to in-service noise exposure. On remand, an addendum opinion should be requested and obtained. 2. The appeal for an initial rating greater than 50 percent for an anxiety disorder, not otherwise specified, is remanded. VA last assessed the severity of the Veteran’s psychiatric disability approximately four years ago, in October 2014. The Veteran has since indicated his symptoms have worsened in severity. For example, in a January 2015 statement, the Veteran reported that he had always been a loner since leaving the Army, was never able to trust anyone, was very paranoid around people and constantly looked over his shoulder for people following him. These symptoms were not reported or noted during the August 2014 VA examination. The Veteran reported that he believes his symptoms more nearly approximate the criteria for the 70 percent disability rating. See May 2016 Substantive Appeal Form 9. He requested another VA examination to evaluate his disability. To ensure that the record includes sufficient medical evidence to properly evaluate the disability under consideration, the Board finds that a more contemporaneous examination is needed. See 38 C.F.R. § 5103A; 38 C.F.R. § 3.159; Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 3. The claim for a total disability rating for individual unemployability (TDIU) due to service-connected disability is remanded. In support of the Veteran’s argument for a higher initial rating for his service-connected psychiatric disability, he reported that he could not maintain gainful employment, had gone through four career fields, was currently unemployed, and that his unemployment was not by choice. See February 2015 notice of disagreement. Such statement raised the issue of entitlement to TDIU due to service-connected psychiatric disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Consequently, the Board finds a remand is necessary for the AOJ to provide the Veteran with notice regarding the information and evidence necessary to substantiate a claim for TDIU. The matters are REMANDED for the following action: 1. Undertake all notice and evidentiary development needed to substantiate a claim for TDIU. This should include sending the Veteran a letter advising him of the information and evidence needed to award a claim for TDIU. The letter should also request the Veteran complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. 2. Obtain any outstanding VA treatment records dated since April 2016. 3. Seek an addendum opinion from an examiner other than the August 2014 VA audiological examiner. The electronic claims file and a copy of this Remand must be made available to, and reviewed by the examiner. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The clinician is asked to answer the following question. (a.) Is it at least as likely as not (a 50 percent probability or higher) that the Veteran’s bilateral hearing loss had its onset in, or is otherwise related to service, to specifically include in-service noise exposure to rifle fire or grenade explosion? (b.) In offering the opinion, should consider the Veteran’s lay assertions that he noticed some degree of hearing loss following weapons fire during service. Should in-service hearing test results bear on the matter at issue, the examiner must discuss the clinical significance of those results, to include why they support the medical conclusion reached. 4. Afford the Veteran the appropriate examination to evaluate the severity of his service-connected anxiety disorder, not otherwise specified. The entire record, to include a copy of this Remand, must be made available to, and reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should identify the nature and severity of all current manifestations of his service-connected an anxiety disorder, not otherwise specified, as well as the impact that such has on his social and occupational functioning. In addressing such inquiries, the examiner should take into consideration all evidence of record, to include medical records as well as the Veteran’s lay statements, accepted medical principles and objective medical findings. 5. After completing the above, readjudicate the Veteran’s claims based on the entirety of the evidence. If the claims remain denied, issue the Veteran and his representative a Supplemental Statement of the Case. An appropriate period should be allowed for response. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Donna D. Ebaugh, Counsel