Citation Nr: 18153270 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 16-41 650 DATE: November 28, 2018 ORDER Service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT By resolving reasonable doubt in his favor, the Veteran’s tinnitus is shown to have begun during military service and to have been chronic and continuous since his discharge therefrom. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from May 1968 to April 1971. This appeal to the Board of Veterans’ Appeals (Board) arose from an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in or aggravated by service. See 38 C.F.R. § 3.303(d). Generally, to prove direct 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). If a chronic disease, such as an organic disease of the nervous system, becomes manifested to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even if there is no evidence of such disease during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1111, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic diseases in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. The United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to establishing service connection on the basis of continuity of symptomatology in lieu of a medical nexus opinion is limited to disorders explicitly recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Moreover, the Court recently held that, with evidence of acoustic trauma, tinnitus is considered an organic disease of the nervous system, falling within the parameters of 38 C.F.R. § 3.309(a). Fountain v. McDonald, 27 Vet. App. 258, 259 (2015). In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Considering the pertinent evidence in light of the governing legal authority, and affording the Veteran the benefit of the doubt on certain elements of the claim, the Board finds that service connection for tinnitus is warranted. Initially, the Board acknowledges the Veteran’s statements that he has tinnitus. Tinnitus is a rare type of disability that, in most cases, may be established on the basis of lay evidence alone. See Charles v. Principi, 16 Vet. App. 370 (2002). Thus, given the apparent nature of the disability, the Veteran’s lay statements are sufficient to establish that he has current tinnitus. Here, the Veteran claims that he has tinnitus due to significant noise exposure during service. Specifically, he asserts that he was subjected to noise exposure while working on load tanks and wheel vehicles, and being near explosions, all without ear protection. He also contends that he currently has a constant ringing in his ears, and that such ringing began during and has continued since this exposure. As for the in-service injury or disease requirement, although there is no documented evidence of any specific incident of significant noise exposure, there is no real dispute that the Veteran likely had some in-service noise exposure. In this case, the Veteran’s DD Form 214 shows that his military occupational specialty (MOS) was Wheeled Vehicle mechanic, and that he was awarded the Sharpshooter M-16 and Expert M-14 badges. Also, the Veteran is competent to assert the occurrence of an in-service injury, to include in-service noise exposure. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Further, there is nothing to explicitly contradict the Veteran’s reports of in-service noise exposure, and they are not inconsistent with the evidence of record or the circumstances of his service. As the Board thus finds no reason to question the veracity of the Veteran’s assertions of in-service noise exposure, the Board accepts the Veteran’s assertions in this regard to be credible and consistent with the circumstances of his service. See 38 U.S.C. § 1154; 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered on the basis of the places, types, and circumstances of his or her service, as shown by the evidence). Accordingly, as the Veteran likely had in service noise exposure which may have resulted in some acoustic trauma, in-service injury has been established. Therefore, the remaining inquiry is whether tinnitus is related to service— particularly, noise exposure experienced therein. The Veteran consistently reported that his tinnitus symptoms has persisted since military service. In February 2012, the Veteran reported to his private doctor that he experienced tinnitus symptoms since service. In January 2013, the Veteran reported having used a box fan to drown out tinnitus symptoms. Additionally, during a January 2015 audiology consultation, the Veteran once again reported constant squealing and intermitting humming in both ears since 1971. Then in August 2016, the Veteran reported always having a humming and ringing in ears since his military service. The Board finds no reason to question the veracity of the Veteran’s assertions in this regard, and as such, they are deemed credible; as discussed above, tinnitus is a rare type of disability that, in most cases, may be established based on lay evidence, alone. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). The Board acknowledges that the Veteran was afforded a VA examination in connection with this claim in June 2013, and that the VA examiner provided a negative nexus opinion. In this regard, the VA examiner opined that the Veteran’s tinnitus was less likely than not caused by or a result of military noise exposure. The VA examiner reasoned that the Veteran’s enlistment and separation exam showed hearing to be within normal limits, there is no evidence of acoustic trauma or hearing loss, and according to the Noise Manuel only seldom does noise cause a permanent tinnitus without causing hearing loss. While the June 2013 opinion has been considered, the Board finds that such opinion is not persuasive, as it was not based on full consideration of all pertinent evidence. In particular, the opinion appears to have been solely based on the absence of documented evidence of tinnitus and/or diminished hearing in and following service, and does not reflect consideration of the Veteran’s assertions as to the onset and continuity of his symptoms of tinnitus that the Board has found credible. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); Dalton v. Peake, 21 Vet. App. 23, 39-40 (2007). In short, although the VA examiner’s opinion was negative, the Board finds that the probative value of that opinion is essentially in equipoise in this case when weighed against the highly competent, credible, and probative lay statements of the Veteran in this case indicating that his tinnitus began in and has been chronic and continuous since service. Accordingly, by resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection is warranted in this case based on the evidence of record. See 38 C.F.R. §§ 3.102, 3.303; Walker, supra. In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Regarding the bilateral hearing loss claim, the Veteran asserts that he currently has bilateral hearing loss that is related to in-service noise exposure. As discussed above, the Board has already conceded that the Veteran had noise exposure as a wheeled vehicle mechanic during military service, to include service in the Republic of Korea. In connection with this claim, a June 2013 VA medical opinion was provided based solely on review of the claims file; the Board reflects that it does not appear that the Veteran has ever been afforded a VA audiological examination in this case. Nevertheless, the June 2013 VA examiner opined that the Veteran’s hearing loss was not at least as likely as not caused by or a result of an event in military service because his hearing was within normal limits on his enlistment and separation examinations, that there was no acoustic trauma or hearing loss in either ear during military service; he further indicated that the literature does not support delayed onset hearing loss due to noise exposure. The Board reflects that the VA examiner’s opinion is inadequate as it is based solely on the absence of any hearing loss disability during military service, which is not an adequate basis to deny a claim. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The examiner, in addition to not physically examining the Veteran, also failed in this case to address the Veteran’s competent and credible statements regarding noise exposure during service and whether such caused his current hearing loss disability. Accordingly, a remand is necessary in order to obtain a VA examination and medical opinion in this case that adequately addresses the facts of this case. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). On remand, the Board also finds that any outstanding VA treatment records should also be obtained. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016); Bell v. Derwinski, 2 Vet. App. 611 (1992). The matter is REMANDED for the following action: 1. Obtain any and all VA treatment records not already associated with the claims file from the Gainesville VA Medical Center, or any other VA medical facility that may have treated the Veteran and associate those documents with the claims file. 2. Ensure that the Veteran is scheduled for a VA audiology examination. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. The examiner should obtain information regarding the Veteran’s noise exposure during and after military service. Following audiometric testing, the examiner should indicate whether the Veteran has any hearing loss disability under 38 C.F.R. § 3.385, bilaterally. Then, the examiner should opine whether any bilateral hearing loss found at least as likely as not (50 percent or greater probability) began in or is otherwise related to military service, to include any noise exposure as a wheeled mechanic with service in the Republic of Korea. Specifically, the examiner needs to address whether the Veteran’s hearing loss is related to his noise exposure during military service, regardless of whether such was noted until many years after military service. Additionally, if his hearing loss is not found to be directly related to service, the examiner should also opine whether any bilateral hearing loss at least as likely as not was (a) caused by; or, (b) aggravated (i.e., chronically worsened) by the Veteran’s service-connected tinnitus. The examiner is reminded that he or she must address both prongs (a) and (b) above. The examiner should consider the Veteran’s statements regarding onset of symptomatology and continuity of symptomatology since discharge from service, as well as any other pertinent evidence, as appropriate. The examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD W. Wells, Associate Counsel