Citation Nr: 20021410 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 18-01 611 DATE: March 25, 2020 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for left ear hearing loss is remanded. FINDING OF FACT The Veteran’s tinnitus is etiologically related to his active service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1971 to July 1971. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Veteran testified at a Board hearing before the undersigned Veteran’s Law Judge. A transcript of the proceeding is of record. Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). An alternative method of establishing the second and third elements of service connection for those disabilities identified as a “chronic condition” under 38 C.F.R. § 3.309 (a) is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A veteran can establish continuity of symptomatology with competent evidence showing: (1) that a condition was “noted” during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303 (b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sensorineural hearing loss and tinnitus are recognized by VA as a “chronic condition” under 38 C.F.R. § 3.309 (a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303 (b), 3.307, and 3.309 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). The Veteran claims that his tinnitus is the result of acoustic trauma he experienced in-service. He filed his claim for VA compensation in July 2017. The Board finds that the Veteran currently has tinnitus. The July 2017 VA examination report includes a current diagnosis of recurrent tinnitus. In addition, the Board finds that the Veteran experienced noise exposure in-service based on the Veteran’s aforementioned DD-214 and his self-report of military noise exposure. As such, the first two Shedden elements are met and are not in dispute. The issue, therefore, is whether there is a causal connection between the Veteran’s tinnitus and his in-service noise exposure. The Board finds the preponderance of the competent evidence supports the claim. As such, his claim of entitlement to service connection for tinnitus is granted. The Veteran testified at a December 2019 hearing indicating that while training in service, after shooting off tank rounds he experienced ringing in the ears. Before entering active service, the Veteran has had issues with a perforated eardrum in the left ear. However, the Veteran testified that he has not had any problems with ringing in the ear before service. The Veteran testified that he had had ringing in his ears since military service. There is no indication that the Veteran's credibility with regard to his reports of tinnitus symptomology should be challenged. The Board finds that the Veteran is competent and credible, and his statement is afforded probative value. The July 2017 VA examiner reported the Veteran having recurrent tinnitus. The examiner gave a negative nexus opinion that the tinnitus is related to military service. The examiner referenced that because the Veteran only served 4 months, history of acoustic trauma cannot be established. The examiner also referenced that the Veteran did not have any tinnitus complaints in-service. The Board affords this opinion low probative value due to the failure of the examiner to consider the Veteran’s reports of continuity of symptomology of tinnitus from military service to the present. The Board affords significant value to the Veteran’s credible statements of continuous symptoms during and since active service. Lay evidence can be competent and sufficient to establish etiology if the layperson is competent to identify the medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Due to the inherently subjective nature of tinnitus, the Veteran is competent to provide a lay diagnosis. Charles v. Principi, 16 Vet. App. 370 (2002). The Board places probative value on the Veteran’s self-reports of tinnitus symptomology from active duty to the present. When taken together, a preponderance of the evidence is in favor of the Veteran. Therefore, his claim of entitlement to service connection for tinnitus is granted. REASONS FOR REMAND The Board remands the Veteran’s claim for entitlement to service connection for hearing loss because there is inadequate information to grant. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for hearing loss because the VA examiner was inadequate. Once VA undertakes the effort to provide an examination, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The July 2017 VA examiner opined that the Veteran’s current hearing loss was not at least as likely as not related to an in-service injury, event, or disease. The Board finds this opinion inadequate because it did not provide rationale sufficiently supported by the evidence of record. The VA examiner based his opinion, in part, on “aggravation of hearing loss cannot be established due to no military audiograms shown in records.” The record show total hearing loss two weeks before separation exam. The Veteran's January 1971 Entrance Examination showed he had hearing within normal limits. The Board finds this opinion inadequate because the VA examiner cannot base an opinion simply on lack of an audiometric exam at separation. The VA examiner also based his opinion, in part, on the Veteran’s pre-existing tympanic membrane perforated eardrum in the left ear. However, the Veteran was not diagnosed with hearing loss at the time of entry into active duty and is presumed sound. In the Veteran’s December 2019 hearing transcript, he testified about an incident in service that aggravated his hearing loss and has worsened since active duty. The examiner fails to acknowledge this contention in the opinion. The Board finds that this is another reason why an addendum opinion is needed before it can make a fully informed decision. The matters are REMANDED for the following action: 1. Obtain updated VA and/or private treatment records. If such records are unavailable, then this must be clearly documented in the Veteran’s claim file and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s left ear hearing loss is at least as likely as not related to his military service. Based on a review of the record, and a new examination if necessary, the examiner must address the following: (a.) Is there clear and unmistakable evidence (undebatable/near certain) that a left ear hearing loss condition pre-existed active service? (b.) If so, is there also clear and unmistakable evidence that the preexisting disability was not aggravated beyond its natural progression by the subsequent active service? (c.) If a preexisting disability is not found, then is it as least as likely as not (probability of 50 percent or greater) that the Veteran’s left ear hearing loss condition incurred in, or is related to active service? The electronic claims file must be made available to the examiner. The examiner should note in the examination report that the claims file has been reviewed. If the examiner determines that another VA examination is necessary, one should be scheduled. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. (Continued on the next page) The examiner is to assume the Veteran is competent to report on acoustic trauma he was exposed to during active duty and hearing loss symptoms he experienced. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should so state and then provide a fully reasoned explanation for the determination. The examination report must include a complete rationale for all opinions expressed and a discussion of the facts and medical principles involved. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts), by a deficiency in the record (i.e., additional facts are required), or the examiner (i.e., the examiner does not have the needed knowledge or training). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hughes 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.