Citation Nr: 20030833 Decision Date: 05/01/20 Archive Date: 05/01/20 DOCKET NO. 17-17 918 DATE: May 1, 2020 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT The Appellant’s tinnitus is etiologically related to service. CONCLUSION OF LAW 1. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(b), 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Appellant served a period of ACDUTRA from April 1967 to August 1967. He appeals a February 2017 rating decision denying entitlement to service connection for tinnitus and bilateral hearing loss. A Board hearing was held in August 2019. A transcript is of record. To establish entitlement to VA disability compensation, an appellant must show: (1) a present disability; (2) an in-service incurrence or aggravation of an injury or disease; and, (3) a causal link between the present disability and the injury or disease incurred or aggravated in-service (“nexus” requirement). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), the nexus requirement is relaxed for claims for chronic diseases enumerated in 38 C.F.R. § 3.309(a). To show a chronic disease in service, the record must contain a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Certain chronic diseases will be presumed related to service if continuity of the same symptomatology has existed since service, with no intervening cause. Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2012). Tinnitus is a chronic disease afforded the relaxed standard. Fountain v. McDonald, 27 Vet. App. 258, 260 (2015). A veteran is competent to testify to that which is actually observed and is within the realm of personal knowledge. Competent lay testimony is confined to the features or symptoms of an injury or illness. See Layno v. Brown, 6 Vat. App. 465 (1994). The Appellant contends that his tinnitus began in service and continues to the present. The question for the Board is whether his tinnitus is attributable to active service. The Board finds the three Shedden elements have been met. The Appellant has credibly reported that his tinnitus began in service and has existed continuously ever since. See August 2019 hearing transcript at 5. Because tinnitus is capable of lay observation, and no intervening cause for the condition is shown in the record, a nexus between the Appellant’s tinnitus and active service is established. Service connection for tinnitus is accordingly granted. REASONS FOR REMAND The Appellant was afforded a VA examination in January 2017 to determine the etiology of his bilateral hearing loss. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The January 2017 VA examiner opined that the Appellant’s bilateral hearing loss was not at least as likely as not related to service. The VA examiner incorrectly noted that no audiological data is contained in the record and incorrectly assumed that the Appellant was not exposed to excessive noise simply because he was a cook in service. Hence, the Board finds the opinion of the January 2017 VA examiner inadequate for rating purposes. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (A medical opinion based on an inaccurate factual premise has no probative value). Accordingly, a new VA examination is necessary to determine the etiology of the Appellant’s bilateral hearing loss. The matter is REMANDED for the following action: 1. Obtain any outstanding private and/or VA treatment records relevant to treatment the Appellant received for his bilateral hearing loss that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Appellant and his representative should be notified, and the record clearly documented. 2. After completion of the development above, schedule the Appellant for an examination to determine the etiology of his bilateral hearing loss. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The opinion must include a notation that this record review took place. The examiner is asked to respond to the following inquiry: Is the Appellant’s bilateral hearing loss at least as likely as not (50 percent probability or greater) etiologically related to service, to include noise exposure therein? The examiner must take into account the Appellant’s in-service noise exposure, to include firing weapons, noise from tanks, and noise from an explosion involving a M67 gas immersion heater. In rendering this opinion, the examiner is advised that the Appellant is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Appellant’s reports, he or she must provide an explanation for such rejection. The Board emphasizes that the absence of in-service evidence of a hearing loss disability is not necessarily fatal to a claim for service connection. Evidence of a current hearing disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service. The examiner is not to improperly discount the Appellant’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth. 3. After the above has been completed to the extent possible, readjudicate the claim. If any benefit sought remains denied, provide the Appellant and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Daniel Ballinger, Associate 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.