Citation Nr: 20002425 Decision Date: 01/10/20 Archive Date: 01/10/20 DOCKET NO. 15-23 745 DATE: January 10, 2020 ORDER Service connection for tinnitus is granted. REMANDED Service connection for bilateral hearing loss is remanded. Service connection for bilateral eye disability is remanded. Service connection for bilateral lower extremity neuropathy is remanded. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran’s tinnitus is the result of his in-service noise exposure. 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, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1958 to October 1966, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In April 2019, the Veteran and his spouse testified before the undersigned at a Board hearing. A transcript is of record. Service connection for tinnitus 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 service, even if the disability was initially diagnosed after service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The Veteran contends that he has tinnitus due to noise-exposure during service due to being involved in “multiple combat operations” that required him to be near “explosives” as a radio operator while serving in the Republic of Vietnam. See April 2019 Hearing tr. at 2-3; October 2013 Statement. The available personnel records confirm that the Veteran’s military occupational specialty (MOS) was in radio operation and that he served in the Republic of Vietnam during the Vietnam era. See Form DD-214; Response to Request for Information (via VA Form 3101). His report of in-service noise exposure is credible given that it is consistent with the circumstances of his service. See 38 U.S.C. § 1154. The key inquiry is whether the Veteran has tinnitus due to his in-service noise exposure. The record contains the Veteran’s competent reports that he has had tinnitus since service. See October 2013 Statement; June 2013 Audio VA examination report; April 2019 Hearing tr. at 2-3. At the April 2019 hearing, the Veteran’s spouse corroborated his account of worsening tinnitus symptoms since service. See April 2019 Hearing tr. at 4. The Board finds these statements credible, as they are consistent with the circumstances of the Veteran’s service. Notably, tinnitus is a disability that is capable of lay observation and does not require medical expertise to determine its presence or its relationship, if any, to prior events. Thus, the Veteran is competent to speak to the presence of his tinnitus. Likewise, his testimony is competent to speak to its origins and provide a link to his service. The June 2013 VA examiner rendered a negative nexus opinion based on the lack of documented tinnitus symptoms during service, but the examiner did not account for the Veteran’s prior competent reports of having ringing in his ears during and since his active duty service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Given the Veteran’s competent and credible reports that he had tinnitus in service and has had it since then, the Board finds that service connection is warranted. The appeal is granted. REASONS FOR REMAND 1. Bilateral hearing loss The Veteran contends that he has bilateral hearing loss due to service, to specifically include in-service noise exposure from combat experiences as a radio operator while serving in the Republic of Vietnam. See April 2019 Hearing tr. at 2-3. The Veteran has current bilateral hearing loss for VA compensation purposes under 38 C.F.R. § 3.385. See June 2013 VA examination report. He also has confirmed noise exposure as discussed above. Therefore, the question is one of whether the two are connected. The June 2013 VA examiner’s negative nexus opinion relies on the absence of documented in-service bilateral hearing loss symptoms and diagnoses and does not address the Veteran’s competent report as to the onset and continuity of bilateral hearing loss symptoms since his service. A remand is necessary for an addendum addressing this deficiency. 2. Bilateral eye disability The Veteran contends that the claimed bilateral eye disability is due to an in-service left eye injury sustained during combat training from being “. . . hit . . . on the left side of [his] head . . . [such that he] went down on one knee and [his] helmet flew.” See April 2019 Hearing tr. at 6. In a June 2019 DBQ report submitted by the Veteran, the examiner diagnosed left eye keratoconus (bulging of the cornea) and penetrating keratoplasty residuals. The examiner did not include a nexus opinion, to include consideration of the reported in-service eye injury. A remand is necessary to obtain a nexus opinion that considers the reported injury, as well as an August 1964 service treatment record that references a “swollen [right] eye lid and brow,” although the cause was unclear, potentially corroborating the Veteran’s report of the in-service eye injury. 3. Bilateral lower extremity neuropathy The Veteran contends that he has bilateral lower extremity neuropathy due to service, to include exposure to herbicide agents. See April 2019 Hearing tr. at 14; October 2013 Statement. As he served in Vietnam during the Vietnam Era, his exposure to herbicide agents is presumed. The Veteran has not undergone a VA examination for the claimed bilateral lower extremity neuropathy. Given his reports as to the onset and continuity of the claimed disability, of which he is competent to assert, VA examination is necessary to determine whether there is a neuropathy diagnosis underlying the Veteran’s reported symptoms of “constantly burn[ing]” sensation in the “bottom of the feet,” see October 2013 Statement, and, if so, whether such is due to his service, to include his presumed exposure to herbicide agents. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Update the Veteran’s VA and private treatment records. 2. Obtain opinions from appropriate clinicians regarding the claimed bilateral hearing loss and bilateral eye disability. (A) The clinician should confirm the Veteran’s current bilateral hearing loss and bilateral eye disabilities. (B) For each diagnosis, the clinician should opine whether the disability is at least as likely as not (a 50 percent or greater probability) related to the Veteran’s service. For the bilateral hearing loss claim, the clinician should specifically consider the Veteran’s competent report of in-service noise exposure and his perceived decline in hearing acuity since service. See VBMS, document labeled Hearing Transcript, receipt date 6/30/2019, pages 2-3 of 18. For the bilateral eye claim, the clinician should consider the reported in-service eye injury, see VBMS, document labeled Hearing Transcript, receipt date 6/30/2019, page 6 of 18, as well as the August 1964 service treatment record documenting an eye injury, see VBMS, document labeled STR-Medical, receipt date 4/20/2015, page 64 of 66. The clinician is asked to provide the underlying reasons for all opinions expressed and is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. 3. Schedule an examination with an appropriate clinician to address whether the Veteran has bilateral lower extremity neuropathy to account for the burning symptoms in his feet, and, if so, whether such is at least as likely as not (a 50 percent or greater probability) related to his presumed exposure to herbicide agents during his service. The clinician is asked to provide the underlying reasons for all opinions expressed and is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists between the current disorder and service, including exposure to herbicides. Likewise, the mere fact that a presumption has not been established for any particular disorder at issue is not dispositive of the issue of nexus. Consideration must still be given to the exposure. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Kim, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.