Citation Nr: 18153027 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 16-42 533 DATE: November 27, 2018 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT The Veteran’s tinnitus was caused by in service noise exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus are satisfied. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1963 to March 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Service Connection Service connection will generally be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To grant service connection on a direct basis, the evidence must show (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link or nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 252 (1999). For the chronic diseases listed in 38 C.F.R. § 3.309(a), including tinnitus as an organic disease of the nervous system, service connection may alternatively be established with evidence of chronicity of the disease during service or during a presumptive period following service separation, or by showing a continuity of symptoms after service. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015). To establish service connection based on a continuity of symptoms, there must be evidence demonstrating (1) that a condition was “noted” during service; (2) post-service continuity of the same symptoms; and (3) a nexus between the present disability and the continuity of symptoms. Fountain, 27 Vet. at 263-64. When chronicity or continuity of symptoms is shown, direct evidence of a medical nexus or causal link to service is not required to establish service connection. Walker, 708 F.3d at 1338-39. Rather, subsequent manifestations of the same chronic disease at any later date, no matter how remote in time from the period of service, will be service connected unless clearly attributable to causes unrelated to service (“intercurrent” causes). 38 C.F.R. § 3.303(b). In addition, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, there is a presumption of service connection for organic diseases of the nervous system, including tinnitus, if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for tinnitus The Veteran asserts that his tinnitus is related to in-service noise exposure. He states that his tinnitus symptomatology began after trying out for the pistol fire team during service and continued until the present. See June 2015 VA C&P Examination Report. He endorses a hearing a sound akin to crickets and a high pitch noise. Id. The Veteran’s service treatment records are negative for any complaints or findings of tinnitus. His MOS was an infantryman. See DD-214. Thus, his reported exposure to hazardous noise is accepted based on the circumstances of his service. See 38 U.S.C. § 1154(a) (2012); 38 C.F.R. § 3.303(a). The Veteran was afforded a VA examination in June 2015. The examiner stated that tinnitus has varying causes including certain medications, stress, anxiety, nicotine, sodium, excessive caffeine, etc. The examiner determined that the Veteran’s tinnitus was not related to service as the service medical records were negative for complaints of tinnitus and there was no acoustic damage from service. When a condition may be diagnosed by its unique and readily identifiable features, 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, 309. Tinnitus is, by definition, “a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY, 1914 (30th ed. 2003). Tinnitus is “subjective,” as its existence is generally determined by whether or not the veteran claims to experience it. In Fountain v. McDonald, 27 Vet. App. 258 (2015), the Court determined that tinnitus is an “organic disease of the nervous system” subject to presumptive service connection where there is evidence of acoustic trauma and nerve damage. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). As the Veteran has reported ringing in his ears that started in service, has credible evidence of noise exposure, and this is a disability capable of lay observation, the Board finds the Veteran’s statements that he currently suffers from ringing in his ears which had its onset in service to be both competent and credible. The Board recognizes the negative evidence in way of the June 2015 VA examiner’s opinion. However, the examiner did not accept the Veteran’s assertion of an onset of tinnitus symptoms during service as true. Given the foregoing, the Board finds that it must resolve all reasonable doubt in favor of the Veteran, and concludes that his tinnitus began in service. Accordingly, service connection for a tinnitus is granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). REASONS FOR REMAND 2. Entitlement to service connection for bilateral hearing loss The Veteran asserts that his hearing loss is related to in-service noise exposure. He asserts that he had in-service noise exposure from mortar fire, C-4 explosions, the open door of an airplane during paratrooper duties, and artillery fire without hearing protection. See June 2015 VA C&P Examination Report; August 2015 Veteran Correspondence. A new VA medical opinion must be obtained regarding the Veteran’s bilateral hearing loss. A June 2015 VA examiner concluded that it was less likely than not that the Veteran’s bilateral hearing loss was related to his active service because audiological testing was normal at the time of the Veteran’s separation from active service. However, because the separation audiogram is dated in March 1966, which is prior to January 1, 1967, it must be converted from American Standards Association (ASA) units to units established by the International Standards Organization (ISO)-American National Standards Institute (ANSI). The conversion from ASA to ISO-ANSI units is accomplished by adding 15 decibels at 500 Hz, 10 decibels at 1000 Hz, 2000 Hz, and 3000 Hz, and 5 decibels at 4000 Hz. Thus, the Board finds that remand is required to obtain another VA medical opinion taking into consideration the converted audiogram. Further, evidence indicates that there are outstanding, relevant VA treatment records. In an April 2017 Statement in Support of Claim, the Veteran reported that he had a hearing test on April 26, 2017 at the Jefferson City VA clinic. He requested that these records be obtain in support of his claim. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issue on appeal. A remand is required to allow VA to obtain them. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records dated from December 2014 to the present, to include, but not limited to, records associated with his hearing test conducted on April 26, 2017 at the Jefferson City VA clinic. 2. After the above development is completed, arrange for an appropriate clinician to review the Veteran’s records in order to determine the nature and etiology of his bilateral hearing loss. The examiner must opine as to whether the Veteran’s current bilateral hearing loss is at least as likely as not related to in-service acoustic trauma from mortar fire, C-4 explosions, the open door of an airplane during paratrooper duties, and artillery fire without hearing protection. In providing this opinion, the examiner must consider the Veteran’s separation audiogram dated in March 1966. The March 1966 audiogram, when converted to ISO-ANSI standards, showed pure tone thresholds of 15 decibels at 500 Hz, 10 decibels at 1000 Hz, 10 decibels at 2000 Hz, and 5 decibels at 4000 Hz in the right ear and 15 decibels at 500 Hz, 10 decibels at 1000 Hz, 10 decibels at 2000 Hz, and 5 decibels at 4000 Hz in the left ear. (Continued on the next page)   The complete rationale for all opinions expressed must be set forth in the examiner’s report. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Sinckler, Associate Counsel