Citation Nr: 21000657 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 17-40 178 DATE: January 5, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT The evidence is at least evenly balanced as to whether tinnitus was incurred in service. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. . REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1961 to August 1964. This matter comes before the Board of Veterans’ Appeals (Board) from a rating decision by a Department of Veteran Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified before the undersigned in a November 2020 Board hearing and a transcript of that hearing is associated with the record. 1. Entitlement to service connection for tinnitus The Veteran contends that his tinnitus began during his service. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Where a veteran served continuously for ninety days or more during a period of war or during peacetime service after December 31, 1946, and a chronic disease, such as tinnitus, becomes manifest to a degree of ten percent within one year of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The disease need not be diagnosed within a presumptive period, it must be shown by acceptable medical or lay evidence, that there were characteristics manifestations of the disease to the required degree during that time. Id. Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303 (b). The second and third elements outlined above may be established by showing continuity of symptomatology for certain specified diseases. Continuity of symptomatology may be shown by demonstrating “(1) that a chronic disease was ‘noted’ during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.” Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316 ; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the veteran, and the veteran’s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir.1996). The Veteran contends that he has tinnitus that began in service and that is due to noise exposure during service. Specifically, the Veteran testified in the November 2020 Board hearing that he was on the marksmen team and fired rifles seven days a week. The Veteran further testified that his tinnitus first began in service and has continued since service. The Veteran underwent a VA audiological examination in January 2017. During the examination, the Veteran reported current tinnitus. The Veteran reported his tinnitus began in service. The examiner opined that the Veteran’s tinnitus is less likely than not caused or a result of military noise exposure. The VA examiner conceded noise exposure in service, but not a noise injury. The examiner noted that that the Veteran did not undergo a puretone test during his entrance examination, but based on the Veteran’s discharge examination a significant threshold shift beyond normal measurement variability while in service would be highly unlikely. The examiner explained that while many factors are involved in determining if tinnitus is related to noise exposure, one critical matter is whether there was a significant threshold shift beyond normal measurement variability while in service. The examiner explained that the evidence clearly and convincingly shows the Veteran did not have a significant threshold shift beyond normal measurement variability while in service. The examiner further noted that delayed onset tinnitus due to noise exposure is unlikely to occur. In the absence of an objectively verifiable noise injury, the association between claimed tinnitus and noise exposure cannot be assumed to exist. As noted above, tinnitus claims may be supported by evidence of a continuity of symptomatology or on a presumptive basis. The Veteran asserts he has experienced tinnitus during his time in service. He is competent to report his symptoms of tinnitus, such as ringing in the ears. Layno v. Brown, 6 Vet. App. 465, 469 (1994). See 38 C.F.R. § 3.159 (a)(2). Once evidence is determined to be competent, the Board must determine whether the evidence is also credible. Here, there is no evidence of greater weight in the record that contradicts the Veteran’s statements to Board, and the Board finds the Veteran to be credible in these statements. In this regard, the Veteran essentially contends that his tinnitus has been “chronic and continuous since discharge.” These lay statements are considered competent evidence when describing the features or symptoms of an injury or illness within the realm of personal and observable knowledge. There are certain situations in which lay evidence may suffice to prove service connection on its own merits, even in the absence of evidence in the service treatment records. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2008). This is one such case where the Veteran’s competent and credible lay evidence as to in-service tinnitus and continuity of symptomatology is sufficient to support a claim for entitlement to service connection. Based upon the facts, service connection tinnitus is warranted. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss The Veteran contends his bilateral hearing loss is etiologically related to service or in the alternative secondary to his herein service-connected tinnitus. The Veteran testified in a November 2020 that his bilateral hearing loss began in service. Notably, the Veteran testified his tinnitus caused him an inability to hear. Further, the Veteran reported that he had severe ear pain and went to sick call for his ear pain. The Veteran’s implied argument is that his hearing loss began in service as evidence by his ear pain in service. The Veteran’s service treatment records indicate that the Veteran had otitis media in May 1964. In November 2017, the Veteran underwent a VA audiological examination. The examination results indicate that the Veteran has a current disability of bilateral hearing loss for VA compensation purposes. See 38 C.F.R. § 3.385. The VA examiner opined that the Veteran’s bilateral hearing loss was less likely than not caused by or a result of an event in service. The examiner’s reasoning relied on the fact that a significant threshold shift beyond normal measurement variability while in service would be highly unlikely, based on the results of the separation examination. The Board finds a remand is required. The November 2017 VA examination did not address the Veteran’s May 1964 otitis media diagnosis noted in the Veteran’s service treatment records. Further, the examiner failed to provide a rationale as why a significant threshold shift during service would be highly unlikely. As noted above, there is no entrance audiogram. Finally, there is no opinion regarding whether the Veteran’s herein service-connected tinnitus caused or aggravated the Veteran’s bilateral hearing loss. Thus, upon remand VA must obtain an addendum medical opinion. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from an appropriate clinician to determine the etiology of the Veteran’s bilateral hearing loss. The examiner must provide the following opinions: (a.) Whether the Veteran’s bilateral hearing loss at least as likely as not had its onset in service, manifest within one year of service discharge or is otherwise etiologically related to service. i. The examiner must provide a rationale as to why a significant puretone threshold shift is unlikely when there was no audiogram testing upon entrance. ii. The examiner must address the Veteran’s statement that he had extreme ear pain shortly prior to discharge. iii. The examiner must address the significance of the Veteran’s service treatment records that document otitis media in May 1964. (b.) Whether the Veteran’s bilateral hearing loss is at least as likely as not proximately due to the Veteran’s tinnitus. (c.) Whether the Veteran’s bilateral hearing loss is at least as likely as not aggravated, i.e., worsened beyond its natural progression, by the Veteran’s tinnitus. i. The examiner must address the Veteran’s statement that his tinnitus does not allow him to hear. (Continued on the next page)   (d.) For each opinion the examiner must provide a complete medical rationale. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert Batten 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.