Citation Nr: 18152579 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 16-43 643 DATE: November 23, 2018 ORDER Service connection for tinnitus is granted. REMANDED Service connection for bilateral hearing loss is denied. Service connection for right elbow condition is remanded. FINDING OF FACT The Veteran’s tinnitus had its onset during service. CONCLUSION OF LAW The criteria for Service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Marine Corps from February 1994 to February 1998. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Veteran testified at a video conference Board hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. 1. Service Connection for Tinnitus Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Initially, the Board notes the Veteran is currently diagnosed with tinnitus. See August 2013 VA examination. The Veteran’s STRs are silent as to any mention of tinnitus; however, he testified that he served in the Marine Corps and his duty station was in the armory maintaining rifles. See April 2017 Hearing Transcript. His assertion of exposure to loud noise is consistent with the circumstances of his service. See 38 U.S.C. § 1154(a). Thus, the question becomes whether the Veteran’s tinnitus arose in service or is related to service. During the April 2017 video hearing, the Veteran reported that his tinnitus began in service while he was working in the armory inspecting rifles and has continued since then. During his August 2013 VA examination, the Veteran also reported that his tinnitus arose around 1997, during service. When a condition may be diagnosed by its unique and readily identifiable features, as is the case with tinnitus, the presence of the disorder is not a determination “medical in nature,” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 305 (2007). When a claim involves a diagnosis based on purely subjective complaints, the Board is within its province to weigh the Veteran’s testimony and determine whether it supports a finding of service incurrence and continued symptoms since service. Id. If it does, such testimony is sufficient to establish service connection. Id. Here, the Board finds the Veteran’s assertions that tinnitus began in service and has continued since then to be credible. The Board acknowledges that the September 2013 VA examiner opined that the Veteran’s tinnitus was less likely than not caused by military noise exposure. However, upon review of the record and after resolving all doubt in favor of the Veteran, the Board finds that the preponderance of the competent and probative evidence indicates that the Veteran’s tinnitus arose in service. For the above reasons and resolving reasonable doubt in the Veteran’s favor, the criteria for presumptive service connection have been met and presumptive service connection for tinnitus is therefore warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Service connection for bilateral hearing loss is remanded. There are conflicting opinions concerning the Veteran’s claim for service connection for hearing loss. The favorable opinion was speculative and the negative opinion was based on the fact that hearing loss was not shown in service. However, hearing loss need not be shown during service for service connection to be established if there is competent evidence linking the current condition to service. Accordingly, the Board finds that an addendum opinion is needed. 2. Service connection for right elbow condition is remanded. The Veteran testified that his elbow ached in service and that he self-treated with ibuprophen. The Board finds that an additional opinion is needed on the claim for service connection for right elbow pain. In this regard, the VA examiner diagnosed right elbow strain, but did not provide an opinion as to whether the Veteran’s current condition is related to his military service. Relevant ongoing medical records should also be requested. The matter is REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have treated him for his right elbow condition and bilateral hearing loss. After securing the necessary release, request any relevant records identified. If any requested records are not available, the Veteran should be notified of such. 2. Send the claims file to a VA audiologist to obtain an addendum opinion on the claim for service connection for bilateral hearing loss. If a new examination is deemed necessary to respond to the question presented, one should be scheduled. Following review of the claims file, the examiner should explain why the Veteran’s current hearing loss is/is not a delayed response to in-service noise exposure. 3. Send the claims file to an appropriate VA examiner to obtain an addendum opinion on the claims for service connection for right elbow pain. If an examination is deemed necessary to respond to the question presented, one should be scheduled. Following review of the claims file, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or higher probability) that the Veteran’s right elbow strain arose during his period of service or is otherwise related to service. The examiner should explain why or why not, to include addressing the Veteran’s testimony of experiencing right elbow pain that he self-treated during and since his service. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. N. Wilson, Law Clerk