Citation Nr: 18153835 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 16-34 901 DATE: November 29, 2018 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for hearing loss is remanded. FINDING OF FACT Competent and credible evidence of record demonstrates that the Appellant’s tinnitus had its onset in service. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 101 (21)(24), 1110, 5107; 38 C.F.R. §§ 3.102, 3.6, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Appellant served on active duty for training in the United States Marine Corps Reserve from July 2, 1979 to November 17, 1979. This matter comes before the Board of Veterans’ Appeals on appeal from a December 2014 rating decision of the Department of Veterans Affairs (VA) Houston, Texas Regional Office (RO) Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). A veteran may be granted service connection for any disease initially diagnosed after discharge, but only if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Certain chronic disabilities, including organic diseases of the nervous system such as tinnitus, may be presumed to have been incurred in or aggravated by service if they become manifest to a degree of 10 percent or more within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred in the line of duty. 38 U.S.C. § 101 (21) (24); 38 C.F.R. § 3.6 (a). Active military, naval, or air service also includes any period of inactive duty training (INACDUTRA) duty in which the individual concerned was disabled from injury incurred in the line of duty. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA. 38 U.S.C. §§ 101 (24), 106, 1110. ACDUTRA includes full time duty performed by members of the National Guard of any state or the reservists. 38 C.F.R. § 3.6 (c). INACDUTRA includes duty other than full time duty performed by a member of the reserve or the National Guard of any state. 38 C.F.R. § 3.6 (d). Presumptive periods do not generally apply to periods of ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Therefore, consideration of 38 C.F.R. §§ 3.307 and 3.309 (presumption of service incurrence for certain diseases first manifested after separation) for the periods of ACDUTRA or INACDUTRA is not appropriate. In determining whether service connection is warranted for a disability, 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this regard, the Board must assess the credibility and probative value of evidence, and, provided it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). The Appellant contends that his tinnitus began during his verified period of initial ACDUTRA and has continued since that time. The Appellant acknowledges that his DD-214 only shows service for 4 months but he attests that he served as a member of the reserve for 6 years total in the infantry which has a high probability of noise exposure. In a June 2015 notice of disagreement, the Appellant asserted that during weekend and summer training he engaged in rifle and field training exercises where live and blank ammunition were used without necessary ear plugs or protection and that has led to the constant ringing in his ears. The Board notes that it appears that there are missing service treatment records for the period from July 1979 to September 1983; therefore, there is at present no evidence of record documenting any audiological complaints, findings, treatment, or diagnoses of tinnitus. A VA outpatient record dated in October 2014 notes that the Appellant complained of constant tinnitus with the pain fluctuating depending on frequency and loudness of sound. The Appellant was afforded a VA examination in December 2015. At that time, the Appellant reported having bilateral intermittent tinnitus for many years. The onset was not linked to a specific injury or acoustic trauma. The Appellant reported that episodes occurred three times per month and ranged from 30 seconds to three minutes in duration. The examiner found that the Appellant’s tinnitus did not meet the current definition of persistent and recurrent, citing a medical reference defining abnormal tinnitus as that occurring more than once per week for more than five minutes at a time. The examiner found further that there is no evidence in the record that the Appellant’s tinnitus originated during his military service (4 months in 1979) and noted that the Appellant had worked in high occupational noise exposure for the past 35 years as a truck driver and manual laborer. The Board has considered the Appellant’s own opinion that his bilateral constant tinnitus began during active duty reserve service. 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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are “medical in nature”. Barr v. Nicholson, 21 Vet. App. 303, 39 (2007). The Appellant is competent in this case to report his symptoms as they are observable to him and he is credible as his statements have been consistent. The Board observes that the June 2015 statements along with the October 2014 VA report are consistent lay statements that are competent and credible evidence that the Appellant’s tinnitus began during active reserve service and has continued since that time. See Charles v. Principi, 16 Vet. App. 370 (2002); Falzone v. Brown, 8 Vet. App. 398 (1995); see also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also Jandreau v. Nicholson, 492 F.3de 1372 (Fed. Cir. 2007); see also Baldwin v. West, 13 Vet. App. 1 (1999); see also Dalton v. Nicholson, 21 Vet. App. 23 (2007). Taken together, the lay statements from October 2014 and June 2015, at the very least places the evidence in a state of relative equipoise as to whether tinnitus was incurred during the Appellant’s active reserve service. Therefore, the Board resolves all doubt in favor of the Appellant and finds the probative evidence of record demonstrates he has a current diagnosis of tinnitus that had it onset during active reserve service. Accordingly, service connection for tinnitus is warranted. 38 C.F.R § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for hearing loss is remanded. As noted, the record verifies that the Appellant had an initial period of active duty for training from July 1979 to November 1979 with the United States Marine Corps Reserve. However, as noted above, the Appellant has reported that he served as a member of the reserve for 6 years total in the infantry which has a high probability of noise exposure, and that during weekend and summer training he engaged in rifle and field training exercises where live and blank ammunition were used without necessary ear plugs or protection. There is documentation within the Appellant’s military personnel records showing service activity from 1980-1983. The Agency of Original Jurisdiction has been unable to obtain the Appellant’s service treatment records and has appropriately notified the Appellant of such. See, e.g., VA letter to Appellant dated November 11, 2014. The Appellant was afforded a VA examination in December 2015. The examiner at the time acknowledged the Appellant’s initial ACDUTRA from July 1979 to November 1979; however, he did not indicate the significance, if any, of the Appellant’s additional reserve service through 1983 and the effect of the Appellant’s regular weekend and summer training on his hearing. Following examination of the Appellant, the examiner opined that due the Appellant’s “minimal” active duty service and 35 plus years of known occupational noise exposure as a truck driver and manual laborer, the Appellant’s current hearing loss is due to aging and occupational noise exposure and not the Appellant’s “minimal” military noise exposure. Because it is not clear from the examination report whether the examiner considered the totality of the Appellant’s service, an addendum opinion should be obtained with specific consideration of the Appellant’s complete reserve service. The matter is REMANDED for the following action: 1. Obtain a VA addendum opinion to the December 2015 audiology examination to determine the etiology of the Appellant’s hearing loss. An examination should be afforded the Appellant only if the examiner indicates that one is necessary to respond to the Board’s inquiry. The entire claims file must be made available to and be reviewed by the examiner. The examiner should provide an opinion as to whether it is at least likely as not (50% or greater probability) that the Appellant’s hearing loss was incurred in or aggravated by a qualifying period of reserve service. The examiner should acknowledge the Appellant’s report that he served as a member of the reserve for 6 years total in the infantry with a high probability of noise exposure, and that during weekend and summer training he engaged in rifle and field training exercises where live and blank ammunition were used without necessary ear plugs or protection. The examiner should provide a complete rationale for any opinion provided. If the examiner finds that any opinion is speculative, the examiner must include rationale to explain why the opinion is speculative. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Ashley Jamieson, Law Clerk