Citation Nr: 18145988 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-43 179 DATE: October 30, 2018 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT Tinnitus began during service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the Army from May 1984 to March 1988. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. In his August 2016 substantive appeal the Veteran declined Board hearing before a Veterans Law Judge (VLJ). The issue of entitlement to service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). Service Connection Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). In light of the Board’s favorable decision, however, any deficiencies in VA’s duties to notify and assist the Veteran with his claim decided herein are moot. Entitlement to service connection for tinnitus Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 113; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2018). In addition, service connection for certain chronic diseases, including tinnitus may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the 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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Tinnitus is defined as a noise in the ear, such as ringing, buzzing, roaring, or clicking, that is usually subjective in type. See Dorland’s Illustrated Medical Dictionary 1956 (31st ed. 2007). Due to the inherently subjective nature of tinnitus, it is capable of lay diagnosis. See Charles v. Principi, 16 Vet. App. 370 (2014). A Veteran is also competent to report exposure to noise, when symptoms of tinnitus first manifested, and that the symptoms have continued since service. Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran reported tinnitus began in service nad has continued since that time. Specifically, at an April 2015 VA examination the veteran reported constant tinnitus that has been present since his active duty service. First, the Board finds that there is a current disability. The Veteran has reported current ringing his ears. The Veteran is competent to report ringing in his ears. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge). The Board finds the Veteran’s statements credible and probative as his testimony has been consistent. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff’d, 78 F.3d 604 (Fed. Cir. 1996). Furthermore, the April 2015 VA examination provided the Veteran reported current tinnitus. The Board finds the first element of service connection is met. Second, the Board finds that the Veteran’s tinnitus began during service. In his November 2015 NOD the Veteran stated he was regularly exposed to hazardous noise based on his military occupational specialty (MOS). The Veteran’s DD214 showed his MOS as mechanic, a commendation for marksman M16, and a commendation for hand grenade expert. Additionally, a September 1987 audio examination stated the Veteran was routinely exposed to hazardous noise. The Board finds the Veteran’s statements credible as they are supported by the record. See Caluza, 7 Vet. App. at 511. Thus, the second element of service connection is met. Third, the Board finds that the most probative evidence of record demonstrated that tinnitus began during service. The Veteran has consistently asserted that tinnitus has existed since service. As noted above, the Board finds these statements competent and credible. See Washington, 19 Vet. App. at 368; Caluza, 7 Vet. App. at 511. In an April 2015 VA examination report, the examiner provided a negative nexus opinion, noting the tinnitus etiology during active duty service could not be determined with reasonable certainty based on available evidence in the record or scientific knowledge. The examiner did not address the evidence of noise exposure in-service. This VA opinion thus has no probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts). The Board finds that the most probative evidence demonstrates that tinnitus began in service and has existed since that time. Accordingly, service connection is granted. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss is remanded. Remand is required to secure an adequate hearing loss examination. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran received an audiological examination in April 2015. The examiner found the hearing loss was less likely than not caused by military service because there was no hearing loss in service and no significant changes in hearing thresholds greater than normal. The November 1985 audio examination showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 5 5 30 25 LEFT 0 5 10 15 20 The September 1987 audio examination showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 10 0 20 20 LEFT 5 0 0 20 25 The examiner did not discuss threshold levels higher than 20 decibels in the in-service examinations. The United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Additionally, the examiner did not discuss the threshold shift from the enlistment audio examination to subsequent audio examinations. Accordingly, a new examination is required. The matter is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his bilateral hearing loss. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the bilateral hearing loss had onset in, or is otherwise related to, active military service. The examiner must specifically address: 1) the Veteran’s assertions of an in-service noise exposure, 2) The Veteran’s report that he noticed the hearing loss in service, 3) the higher than 20 decibels in the May 1985 and September 1987 audio examinations, 4) the shift from the enlistment examination to subsequent examinations, 6) the September 1987 examination that noted routine noise exposure, and 5) the Veteran’s report of always using hearing protection post-service. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Bruton, Associate Counsel