Citation Nr: 18150743 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-50 647 DATE: November 15, 2018 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for an eustachian tube dysfunction to include left ear hearing loss is remanded. FINDING OF FACT Tinnitus is etiologically related to acoustic trauma sustained in active service. CONCLUSION OF LAW Tinnitus was incurred in active service. 38 U.S.C. § 1101, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from April 1987 to May 1995 and the Marine Reserves from December 2002 to November 2003 and from January 2004 to July 2014. 1. Entitlement to service connection for tinnitus Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1101; 38 C.F.R. § 3.303. 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) The Veteran has asserted that he has tinnitus as a result of acoustic trauma sustained while in active service. Specifically, the Veteran has reported acoustic trauma in the form of gunfire. A review of the Veteran’s service separation form shows that his military occupational specialty (MOS) while in active service was included infantry officer. Therefore, the Board concedes the Veteran’s exposure to acoustic trauma while in active service. A review of the service medical records is silent for treatment for or a diagnosis of tinnitus while the Veteran was in active service. However, the Veteran has reported that he first experienced tinnitus while in active service and has continued to experience tinnitus since his separation from active service. The Veteran is competent to report when he first experienced tinnitus and that the symptoms have continued since service. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran to be credible. The Board notes that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is competent to identify tinnitus and his statements have been found credible. In sum, the Board has conceded acoustic trauma during active service. The Veteran has competently reported that he first experienced tinnitus while in active service and that he has continued to experience it since that time and those statements have been found credible by the Board. Accordingly, the Board finds that the evidence supports entitlement to service connection for tinnitus, and the claim is granted. REASONS FOR REMAND 2. Entitlement to service connection for an eustachian tube dysfunction to include hearing loss is remanded. A November 2014 exchange of email between the contract examiner and the RO demonstrate that the Veteran intended to reschedule his examination, but was unable to reschedule because of a contractual limitation with the contracting examiner. Subsequently, the AOJ did not attempt to reschedule the VA examinations, but rather proceeded to adjudicate the claims. In light of this evidence, the Board finds that a VA examination should be reschedule for the Veteran. See 38 C.F.R. § 3.159. The matter is REMANDED for the following action: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his disabilities. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. 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. If the records are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159. 2. After the above development is accomplished, schedule the Veteran for appropriate VA examination(s). The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner(s) as part of the examination. A notation to the effect that this review has taken place should be made in the evaluation report. All tests, studies, and evaluations should be performed as deemed necessary by the examiner(s), and the results of any testing must be included in the examination report. The examiner(s) should review the service treatment records (STRs), any post-service records contained in the claims file, and take a detailed history from the Veteran regarding the onset of any identified disability and any continuity of symptoms since that time. After considering the pertinent information in the record in its entirety, the examiner is asked to opine as to whether it is at least as likely as not i.e. 50 percent probability or greater, that the Veteran’s eustachian tube dysfunction or other identified left ear disability was incurred or aggravated by his active duty or is otherwise etiologically related to his active service. 3. Ensure that the examination report complies with this remand and the questions presented in this request. If the report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 4. After completing the requested actions and any additional notification and/or development deemed warranted, readjudicate the issues on appeal. If the benefit sought on appeal is not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded the appropriate time period for response. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Acosta