Citation Nr: 18144242 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 16-40 744A DATE: October 25, 2018 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT The Veteran’s tinnitus is related to active service. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107(b)(2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army from November 1966 to November 1968. These issues come before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), in Houston, Texas. In May 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law judge. The transcript is of record. The Board notes that VA treatment records have been associated with the Veteran’s claims folder following the issuance of the most recent adjudication of the Veteran’s claims (a July 2016 statement of the case (SOC)). However, these records are essentially duplicative of medical evidence dated prior to the June 2016 SOC. As such, the Board finds that remand for a waiver of this evidence is not necessary. See 38 C.F.R. §§ 19.9, 20.1304(c) (2017). Entitlement to service connection for tinnitus The Veteran contends that his tinnitus was caused by noise exposure during his military service. A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131 (2012). Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). An alternative method of establishing the second and third elements of service connection for those disabilities identified as a “chronic condition” under 38 C.F.R. § 3.309 (a) is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was “noted” during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303 (b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). The Board finds that the Veteran has a current tinnitus disability. An October 2017 VA treatment record references that the Veteran has a diagnosis of subjective tinnitus and the June 2016 VA examination report references that the Veteran reported recurrent tinnitus. In addition, the Board finds that the Veteran experienced noise exposure in-service. The Veteran testified at the May 2018 Board hearing that his military occupational specialty listed on his DD-214 as “com center specialist” was incorrect and that he worked on military vehicles in the motor pool while stationed in Okinawa, where he was exposed to “grinding noises” when using the motor pool equipment. The Board finds his testimony with regard to noise exposure to truthful and credible. As such, the first two Shedden elements are met and are not in dispute. The issue, therefore, is whether there is a causal connection between the Veteran's tinnitus disability and his in-service noise exposure. The Board finds a preponderance of the evidence of record to be in favor of the Veteran. As such, his claim of entitlement to service connection for tinnitus is granted. The Veteran testified at the May 2018 Board hearing that he has constant “ringing” in his ears due to the “grinding noise” exposure in-service. The Board finds that the Veteran is competent and credible and his testimony is afforded probative value. While the Veteran’s service treatment records do not reference any hearing complaints, the Veteran’s post-service VA treatment records do show a diagnosis of subjective tinnitus. The June 2016 VA examination found that the Veteran’s tinnitus was secondary to the Veteran’s hearing loss and not due to military service. However, the examiner gave no rationale for this opinion. As such, it is given little probative value. The Board affords significant value to the Veteran's credible testimony of continuous symptoms since active service. Lay evidence can be competent and sufficient to establish etiology if the layperson is competent to identify the medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Due to the inherently subjective nature of tinnitus, the Veteran is competent to provide a lay diagnosis. See Charles v. Principi, 16 Vet. App. 370 (2002). When taken together, a preponderance of the evidence is in favor of the Veteran. Therefore, his claim of entitlement for tinnitus is granted. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss The Veteran contends that his current hearing loss is the result of noise exposure while working in the motor pool during service, based on his previously mentioned Board hearing testimony. The June 2016 VA examination report referenced that, while the Veteran has bilateral sensorineural hearing loss, the bilateral hearing loss was not related to his military service. The examiner explained that the Veteran had normal hearing at induction and separation, with no marked shifts in-service. This was the only rationale provided by the examiner. Significantly, 38 C.F.R. § 3.385, establishes that service connection for a current hearing disability is not precluded where hearing was within normal limits at separation. See Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993). Furthermore, the examiner did not question the Veteran as to the sources of his in-service noise exposure, including exposure to noise while working in the motor pool; thus this relevant information was not considered in rendering an opinion. For these reasons, the Board finds that the June 2016 VA examination is inadequate and that an addendum opinion is needed which fully considers and addresses the evidence of record. The matter is REMANDED for the following action: 1. Obtain updated VA and/or private treatment records to the extent possible. If any such records are unavailable, the Veteran’s claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Return the claims file to the VA examiner who conducted the Veteran's June 2016 audiology examination. The claims file and a copy of this Remand must be made available to the examiner. The examiner should note in the examination report that the claims file and the Remand have been reviewed. If the June 2016 VA examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. If the examiner determines that another VA examination is necessary, one should be scheduled. Based on a review of the record, and a new examination if necessary, the reviewer must address the following: Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bilateral hearing loss began during service or is etiologically related to exposure to excessive noise during active duty service, to include noise exposure the Veteran experienced in the course of his duties while working in the motor pool? The examiner is to address all lay statements and assume the Veteran is competent to report on acoustic trauma he was exposed to during active duty and of any hearing loss symptomology he experienced at that time and thereafter. The examiner is advised that the term “as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of conclusion as it is to find against it. (Continued on the next page)   The examination report must include a complete rationale for all opinions expressed and a discussion of the facts and medical principles involved. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Massey, Associate Counsel