Citation Nr: 18152971 Decision Date: 11/26/18 Archive Date: 11/26/18 DOCKET NO. 16-56 391 DATE: November 26, 2018 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for scar, residual of right hand injury, is remanded. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran’s currently diagnosed tinnitus was incurred in his active military service. CONCLUSION OF LAW Resolving all doubt in the Veteran’s favor, tinnitus was incurred in his active service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2009 to March 2010 and from January 2012 to August 2012. He had additional service in the United States Marine Corps Reserves. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. 1. Entitlement to service connection for tinnitus. In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Here, the Veteran contends that he has tinnitus, which is due to in-service noise exposure. See, e.g., the Veteran’s notice of disagreement (NOD) dated February 2014. As indicated above, the record demonstrates that the Veteran served on active duty from June 2009 to March 2010 and from January 2012 to August 2012. Hearing conservation data records, included in the Veteran’s service treatment records, indicate that the Veteran had steady noise exposure as well as impulse noise exposure. See the hearing conservation data records dated June 2009 and February 2012. Thus, the Veteran’s assertions of in-service acoustic trauma are consistent with the evidence of record. The Veteran submitted a Pre-discharge Compensation Claim dated in August 2012 at which time he reported a ringing/buzzing in his ears. An October 2012 VA audiology examiner confirmed that the Veteran has a diagnosis of recurrent tinnitus. The examiner noted that the Veteran reported “occasional tinnitus in both ears that began in May 2012.” A separate VA medical opinion was obtained in October 2013 at which time the examiner indicated that the “Veteran’s tinnitus is less likely than not caused by or the result of military noise exposure.” The examiner provided the following rationale: “[t]innitus is known to be consistent with hearing loss and/or standard threshold shift which is indicative of noise injury. Comparison of SMR’s does not reveal a standard threshold shift in either ear two months post-separation.” In this regard, the Board notes that the absence of evidence of a hearing disability during service is not in and of itself fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The lack of evidence of treatment for the claimed disorder in the Veteran’s service treatment records cannot, standing alone, serve as the basis for a negative opinion. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In contrast, the Veteran has repeatedly asserted that he experiences tinnitus dating from his military service. See, e.g., the Veteran’s claim dated August 2012, his NOD dated February 2014, and his VA Form 9 dated November 2016. The Board has reviewed the personal statements of the Veteran, who reported that his tinnitus arose during service and has existed since that time. The Board finds such contentions to be both competent and credible. 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 statements and determine whether it supports a finding of service incurrence and continued symptoms since service. Id. If it does, such lay evidence is sufficient to establish service connection. Id. Accordingly, the Board has weighed the probative evidence of record and finds that the evidence is at least in equipoise as to whether the diagnosed tinnitus is the result of the Veteran’s military service. The benefit-of-the-doubt rule is therefore for application. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). The Board will resolve the reasonable doubt in the Veteran’s favor and find that the evidence supports the grant of service connection for tinnitus. See 38 U.S.C. § 5107 (2012). REASONS FOR REMAND 1. Entitlement to service connection for scar, residual of right hand injury. is remanded. The Veteran asserts entitlement to service connection for a scar on his right hand, which he contends was incurred when he was accidentally hit with a shovel during Marine Combat Training (MCT) near Camp Lejeune. See the Veteran’s NOD dated February 2014. The Veteran has repeatedly stated that the injury is well-documented in his service treatment records because it necessitated multiple stiches to close the wound. Id; see also the Veteran’s VA Form 9 dated November 2016. The Veteran was afforded a VA examination in September 2012 at which time the examiner confirmed a linear scar of the right hand. The examiner indicated that the right-hand injury was incurred in 2009. A review of the Veteran’s available service treatment records does not document any such injury to the right hand. However, given the Veteran’s credible contentions that the injury should be well-documented, the Board finds that additional inquiry should be conducted. As such, this matter should be remanded in order for the AOJ to attempt to obtain any outstanding service treatment records pertaining to the Veteran. The matter is REMANDED for the following action: Contact the appropriate records custodian(s) in order to obtain the Veteran’s complete service treatment records from the Marine Corps Reserve. Any response should be associated with the Veteran’s claims file. If said records cannot be obtained, provide the Veteran with specific notice of the unavailability of these records pursuant to 38 C.F.R. § 3.159(e)(1). All such available records should be associated with the Veteran’s claims file. K. CONNER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. K. Buckley, Counsel