Citation Nr: 18156912 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 17-12 916 DATE: December 11, 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 began during active service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 1154, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.326(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from June 1959 to June 1967. The Veteran also served in the Air National Guard from 1986 to 2001. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA). Service Connection Service connection may be granted for 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) (2017). To establish a right to compensation for a present disability, a Veteran must show: (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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d) (2017). Entitlement to service connection for tinnitus The Veteran contends that he currently suffers from tinnitus as a result of acoustic trauma he sustained in active duty service and that it began during service and has existed since that time Tinnitus has been variously defined. It is “a sensation of noise (as a ringing or roaring) that is caused by a bodily condition (as wax in the ear or a perforated tympanic membrane).” See Butts v. Brown, 5 Vet. App. 532, 540 (1993). It is a noise in the ears, such as ringing, buzzing, roaring, or clicking. See YT v. Brown, 9 Vet. App. 195, 196 (1996). It is a ringing, buzzing noise in the ears. See Kelly v. Brown, 7 Vet. App. 471, 472 (1995). “Tinnitus can be caused by a number of conditions, including injuries, acute diseases, and drug reactions [but] disablement from tinnitus does not depend on its origin.” See 59 Fed. Reg. 17,297 (April 12, 1994). First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303 (d). In an October 2015 private treatment record, the Veteran’s physician noted that he had tinnitus. Accordingly, the first element of service connection is met. Second, the Board finds that there was in-service disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303 (d). The Veteran stated that his tinnitus began during military service. Further, the Veteran’s DD-214 indicates he was a helicopter mechanic. Thus, the Veteran’s reports are competent and credible as they are supported by the circumstances of his service. Third, the Board finds that the evidence of record supports a finding that the tinnitus began during active service and has existed since that time. Also, in the October 2015 private treatment record, the physician opined that the Veteran’s tinnitus was at least as likely as not due to service. In support of the opinion, the physician noted the Veteran’s MOS and likely exposure to acoustic trauma and considered the Veteran’s lay statements. In this case, the Board observes that tinnitus is subjective and the type of condition to which lay testimony is competent to diagnose. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). The Board finds credible the Veteran’s report of currently having tinnitus as he has remained consistent. See Caluza, 7 Vet. App. at 511. In light of the foregoing, the Board finds that the third element of service connection is met and service connection is warranted. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss is remanded The Veteran contends that service connection is warranted for bilateral hearing loss. The Veteran provided a private treatment record, dated in October 2015, reflecting moderately severe sensorineural hearing loss. However, the regulations require that an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85. The private treatment records do not indicate that the Maryland CNC was employed or that the examinations were conducted by a state-licensed audiologist. The record further shows that the Veteran failed to appear for a scheduled VA hearing loss examination. The Veteran reported that while he changed his address with the United States Postal Service, he did not notify VA of his new address, and therefore did not receive notice of the examination. The Veteran provided his new address in correspondence, dated in September 2017, and stated that he attempted to reschedule the appointment. A review of the record indicates that the Veteran’s address has changed, although no mail has been returned as undeliverable. Also, in correspondence, dated in December 2017, the Veteran noted that he was available and willing to attend a VA examination. The Board acknowledges that the Veteran has been afforded past opportunities to attend a VA examination and has failed to appear. Yet, in light of the private treatment of record indicating hearing loss, coupled with the fact that the Veteran’s address has changed, the Veteran is provided a final opportunity to present for a VA examination. The Veteran is advised that failure to report for the VA examination, without good cause, may have adverse consequences. 38 C.F.R. § 3.655 (2017). The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral hearing loss. The examiner must determine whether the Veteran has hearing loss as defined by § 3.385 and opine whether it is at least as likely as not related to an in-service injury, event, or disease, including as due to in-service noise exposure. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tiffany N. Hanson, Associate Counsel