Citation Nr: 18149464 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 16-43 410 DATE: November 9, 2018 ORDER Service connection for bilateral tinnitus is granted. REMANDED Entitlement to service connection for a left testicular disability is remanded. FINDING OF FACT The Appellant has a current diagnosis of bilateral tinnitus, and the evidence is in equipoise regarding whether it is related to his military service. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Appellant, the criteria for service connection for bilateral tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107, 7104; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Appellant served in the U.S. Marine Corps Reserves, including a period of active duty for training (ACDUTRA) from May 18, 2009 to August 15, 2009, with subsequent periods of duty for training in 2011, 2012, and 2015. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Appellant Form 9 indicates that he did not request a Board hearing. Service connection for bilateral tinnitus is granted. The Appellant contends that his current bilateral tinnitus was caused by his in-service exposure to hazardous noise levels emitted by military aircraft, fuel pumps, and weapons fire in connection with his service as a bulk refueler. Service connection is warranted where the evidence of record demonstrates that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty during active military service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge may be found to be service-connected where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). The term “veteran” is defined by statute as a person who served in the active military, naval, or air service and was discharged or released from such service under conditions other than dishonorable. See 38 U.S.C. § 101(2). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. See 38 U.S.C. § 101(21), (24); 38 C.F.R. § 3.6(a). ACDUTRA includes full-time duty in the Armed Forces performed by Reserves for training purposes. See 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c)(1). Service connection for a disability requires competent and credible evidence of the following: (1) the existence of a current disability; (2) the existence of the disease or injury in service; and (3) a relationship or nexus between the current disability and any injury or disease during service. See Hickson v. West, 12 Vet. App. 247, 252 (1999). In addition, the presumption of service connection set forth in 38 C.F.R. § 3.303(b) attaches to certain diseases enumerated in 38 C.F.R. § 3.309(a), including tinnitus. See Walker v. Shinseki, 708 F.3d 1331, 1338-1339 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Where a veteran has served for at least ninety days during a period of war or after December 31, 1946, and develops an enumerated chronic disease to a compensable degree within one year from the date of separation from service, such disease shall be presumed to have been incurred or aggravated in service even though there is no evidence of such disease during the period of service. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Evidence of continuity of symptomatology may also be demonstrated to establish service connection for diseases recognized as chronic for VA purposes. See Walker, 708 F.3d at 1338-1339. However, where a veteran’s qualifying military service is comprised solely of ACDUTRA or INACTDUTRA service, certain presumptive provisions do not apply, including the presumption of service incurrence (38 C.F.R. §§ 3.307, 3.309), the presumption of aggravation (38 C.F.R. § 3.306), and the presumption of soundness (38 U.S.C. §§ 1111, 1131; 38 C.F.R. § 3.304(b)). See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Where an approximate balance of positive and negative evidence exists regarding any issue material to the determination of a matter, the Board shall afford the claimant the benefit of the doubt. See 38 U.S.C. § 5107; 38 C.F.R. § 4.3. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant shall prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). The preponderance of the evidence must weigh against the Veteran’s claim in order for it to be denied. See Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996). For the reasons set forth below, the Board finds the evidence of record to be in relative equipoise as to whether the Veteran’s bilateral tinnitus is causally related to his in-service exposure to hazardous noise, and that he is therefore entitled to service connection on a direct basis. See 38 C.F.R. § 3.303(d). The Appellant has consistently asserted that he has suffered from symptoms of tinnitus since his in-service exposure to hazardous noise, namely a constant ringing noise which causes headaches and impedes his hearing. In his August 2016 Form 9, the Appellant contends that, in connection with his service as a bulk fueler, he was exposed to fuel pumps emitting hazardous noise, as well as to acoustic trauma from weapons fire. The Appellant further reports that he did not always use hearing protection while firing his rifle at the firing range, and that he first noticed ringing in his ears when his hearing protection fell out during a military training exercise. The Appellant further reports that he did not feel comfortable replacing his hearing protection, as he had been ordered not to do so during the exercise, and that as the exercises continued, the ringing in his ears worsened. The Appellant contends that, as a result of this in-service noise exposure, he suffers from constant bilateral ringing which causes headaches and impedes his hearing. In June 2016, the Appellant underwent a VA examination, during which he also reported that he has suffered from bilateral tinnitus ever since his in-service exposure to weapons fire at the gun range. The Appellant further reported to the VA examiner that he was also exposed to hazardous noise emitted by large engines and military aircraft in connection with his service as a bulk refueler. The Appellant denied any post-military occupational or recreational noise exposure, and he reported working in an office environment since separation. In the May 2018 brief submitted by the Appellant’s representative, the Appellant reiterates his contention that his bilateral tinnitus was caused by in-service exposure to hazardous noise emitted from fuel pumps and weapons fire. The Board finds that the Appellant is competent to describe the observable, non-medical symptoms of his disabilities, such as ringing in the ears. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In addition, the Board finds his lay statements regarding his bilateral tinnitus to be credible because they are consistent throughout the evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (citations omitted). Accordingly, the Board finds that the Appellant currently has bilateral tinnitus, and the threshold element for service connection, a current disability, has been established. Turning to an in-service injury, the Board finds that the Appellant is competent to describe his exposure to loud noises, such as those caused by large engines and weapons fire. See Falzone v. Brown, 8 Vet. App. 398, 406 (1995). In addition, the Board finds his lay statements regarding his in-service exposure to hazardous noise to be credible because they have been consistent throughout the record and are confirmed by the evidence of record regarding his military service. See Caluza, 7 Vet. App. at 511. The Appellant’s military records confirm his service in 2011, 2012, and 2015 as a bulk refueler for the Marine Corps Bulk Fuel Company C, Sixth Engineer Support Battalion, Luke Air Force Base, Arizona, during which it is plausible that the Appellant would have been exposed to excessive noise emitted from fuel pumps, large engines, and military aircraft. The Appellant’s service treatment records also indicate that in June 2012, he was assigned to approximately 30 days of training with the Sixth Engineer Support Battalion at Camp Pendleton, California, during which the Board finds it probable that, as a Marine in training, the Appellant was exposed to hazardous noise emitted from weapons fire. Although the Appellant’s service treatment records do not indicate that he reported symptoms of tinnitus during service, the Board acknowledges that lay evidence cannot be found to lack credibility based solely on the absence of contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Therefore, the Board finds the Appellant’s contentions regarding his in-service exposure to military acoustic trauma to be credible because they are consistent with other evidence in the record, as well as with the places, types, and circumstances of his service. See 38 U.S.C. § 1154(a). Accordingly, because the Appellant has provided competent and credible testimony establishing in-service hazardous noise exposure, the Board finds that he has established an in-service injury of bilateral acoustic trauma. Finally, turning to the establishment of a nexus, the Board finds that evidence of record is in equipoise regarding the causal relationship between the Appellant’s in-service noise exposure and his current bilateral tinnitus. The Board acknowledges that the June 2016 VA examiner concluded that the Appellant’s current tinnitus was less likely as not caused by or a result of acoustic trauma during military service because his service treatment records are silent for any complaints, diagnoses, or treatment of tinnitus or impaired hearing. However, as stated above, contemporaneous medical evidence is not required to establish a nexus. See Buchanan, 451 F.3d at 1337. Accordingly, the Board finds that the evidence of record is in relative equipoise as to whether the Appellant’s tinnitus is as likely as not due to exposure to hazardous in-service noise levels, as his lay statements regarding his in-service noise exposure and the onset of his tinnitus symptoms are entitled to significant probative value due in large part to their consistency and concomitant credibility. Therefore, the Board finds that the application of the benefit of the doubt rule is warranted in this case, as there is at least an approximate balance of positive and negative evidence regarding the merits of issues material to the determination of the matter. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for bilateral tinnitus is warranted on a direct basis. See Ashley v. Brown, 6 Vet. App. 52, 59 (1993). REASONS FOR REMAND Entitlement to service connection for a left testicular disability is remanded. Unfortunately, the Appellant’s service connection claim for a left testicular disability must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Appellant’s claim so that he is afforded every possible consideration. The Appellant has stated that he currently suffers from a non-cancerous cyst on his left testicle which causes constant pain, erectile dysfunction, and depression and is related to two injuries he sustained during his active military service. The Board cannot make a fully informed decision on the issue of service connection for left testicular disability because no VA examiner has opined whether such disability is related to the Appellant’s active service. In this case, the Board finds that all of the McLendon elements have been met. First, the Appellant’s service treatment records and private treatment records indicate that he has a current diagnosis of a left testicular disability, to include pain and a non-cancerous cyst. Second, in the August 2016 Form 9 and May 2018 brief he asserts that his left testicular disability is related to two in-service injuries he sustained during military training exercises. Third, the Appellant’s treatment records indicate that he was treated in service for his left testicular disability on the following occasions: (1) on October 22, 2011, he was treated privately for an acute scrotal contusion after suffering an injury during a military exercise earlier in the day; (2) on June 5, 2012, he was treated at Camp Pendleton after suffering an injury during a military exercise earlier in the day; (3) on February 3, 2015, he was treated at a civilian facility for pain of the male genitourinary system; and (4) on February 7, 2015, he was treated at Luke Air Force Base and ordered to sick quarters in connection with recurring left testicular pain. Finally, the record does not contain sufficient medical evidence regarding a nexus between the Appellant’s current left testicular disability and his reported in-service injuries. As a result, absent further clarification, the record lacks the requisite medical evidence to determine the nature and etiology of the left testicular disability. See Colvin v. Derwinski, 1 Vet. App. 171, 174-175 (1991). Therefore, a VA examination is warranted in order to determine whether the left testicular disability is connected to his active military service. Accordingly, the matter is REMANDED for the following action: 1. Obtain any and all outstanding private and VA treatment records from 2009 to the present. 2. Schedule the Appellant for an examination to determine the nature and etiology of his claimed left testicular disability. The entire claims file must be reviewed by the examiner. The examiner is to provide an opinion as to the following: (a) Is it at least as likely as not that the Veteran’s left testicular disability had its onset during service, or is otherwise related to service, and explain why that is so; The examiner must comment on the Veteran’s October 2011, June 2012, and February 2015 medical records noting the Veteran’s treatment for claimed injuries to his left testicle, the Veteran’s endorsement of related pain, and the observance of a non-cancerous cyst on the left testicle; and The examiner must include a rationale with all opinions, citing to supporting clinical data/medical literature as appropriate. If an opinion cannot be rendered on a medical or scientific basis without invoking processes relating to guesswork or judgment based upon mere conjecture, the examiner should clearly and specifically state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Hannah Marsdale, Associate Counsel