Citation Nr: 19129409 Decision Date: 04/16/19 Archive Date: 04/16/19 DOCKET NO. 17-28 911 DATE: April 16, 2019 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss and/or an inner ear disability is remanded. FINDING OF FACT The record reflects a current diagnosis of tinnitus, the in-service incurrence of the disability, and continuity of the symptomatology since service. CONCLUSION OF LAW The criteria for establishing service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Marine Corps from August 1958 to November 1961. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in December 2018. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also 38 C.F.R. § 3.303, Hickson v. West, 12 Vet. App. 247, 252-53 (1999). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection for tinnitus Certain chronic diseases, including hearing loss and tinnitus, will be granted service connection on a presumptive basis if there is evidence they manifested within a year of separation from service. 38 C.F.R. §§ 3.307(a), 3.309(a). Alternatively, for such chronic diseases shown in service, the second and third elements of service connection may be established through demonstrating chronicity or continuity of symptomatology. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (section 3.303(b) only applies to the chronic disabilities listed in 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a)); see also Fountain v. McDonald, 27 Vet. App. 258, 271 (2015) (holding section 3.309(a) “includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an ‘organic disease[ ] of the nervous system’”). Tinnitus is a condition capable of lay observation. Charles v. Principi, 16 Vet. App. 370, 374 (2002) (stating that “ringing in the ears is capable of lay observation” and, as such, a veteran is competent to testify as to that symptom). Therefore, the Veteran is competent to describe his tinnitus symptomatology in service and after service. At the December 2018 Board hearing, the Veteran testified that he first experienced tinnitus while in service, after some time on the rifle range. He testified that he reported it to the corpsman, who said it would go away in time. The Veteran testified that the tinnitus has continued since that time in service. The Veteran’s service personnel records indicate that he served as a mortarman while in service. The Veteran’s service treatment records contain a progress note in August 1961, at which the Veteran reported experiencing tinnitus in both ears and vertigo. The progress note indicated further testing for an inner ear condition, but the records are unclear whether this was performed. The Veteran attended a VA audiological examination in February 2015, at which he reported noticing the constant tinnitus in 1958. The examiner opined that the tinnitus was less likely than not related to noise exposure in the military because there were no complaints in service or until 50 years after separating from service. After review of the evidence of record, the Board finds that service connection for tinnitus is warranted. The Veteran credibly testified at the December 2018 Board hearing that he experienced tinnitus symptoms during service, and his service treatment records reflect this complaint. Although the VA examiner opined that the tinnitus was not caused by service, the Board finds this opinion has no probative value because the examiner based this negative opinion on a lack of complaints of tinnitus in service and there is a clearly documented complaint of tinnitus in service. Moreover, the Veteran has credibly reported experiencing tinnitus symptoms since 1958, and the VA examiner did not address this competent and credible report of symptoms. Accordingly, as the record reflects competent and credible evidence that the tinnitus began in service and has continued since, the Board finds that service connection for tinnitus is warranted. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss and/or an inner ear disability is remanded. The Veteran attended a VA audiological examination in February 2015, at which the examiner opined that the Veteran’s current hearing loss was less likely than not related to service because there was no documentation of complaints of hearing loss for 50 years after separation. As this is the sole rationale for the examiner’s opinion, the opinion is inadequate, as it impermissibly dismisses the Veteran’s lay statements in the record associating his hearing loss with noise exposure during service. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (that reports of symptomatology are not supported by contemporaneous clinical evidence does not render them inherently not credible). The Board notes the Veteran submitted private opinion letters regarding hearing loss in December 2014 and June 2017. Although the June 2017 letter indicates that the private audiologist reviewed the Veteran’s service treatment letters, neither letter is sufficient basis for a decision in this matter, as the audiologist did not provide any supporting rationale for the opinion that the current hearing loss is at least as likely as not related to in-service noise exposure. Therefore, a new examination is necessary to obtain adequate medical evidence on which to decide this matter. The matter is REMANDED for the following action: Schedule the Veteran for an examination with an appropriate clinician to determine whether the Veteran’s current hearing loss or any inner ear disability is related to his military service. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. Following review of the claims file and examination of the Veteran, the examiner should identify whether any inner ear conditions are present, in addition to hearing loss. The examiner should then opine whether it is at least as likely as not (50 percent or greater probability) that the hearing loss and/or any inner ear disorder began in or is otherwise caused by the Veteran’s active service. In providing the requested opinions, the examiner should address the Veteran’s lay statements regarding continuity of symptomatology since onset and/or since discharge from service. The examiner should address any other pertinent evidence of record, including the Veteran’s December 2018 testimony regarding noise exposure while in service and his service treatment records documenting complaints of dizziness and otitis media.   All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Josey, Associate Counsel