Citation Nr: 21001123 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 17-14 969 DATE: January 7, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection for a neck condition is remanded. Entitlement to service connection for a back condition is remanded. Entitlement to total disability compensation based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his tinnitus is at least as likely as not related to in-service noise exposure. 2. Resolving reasonable doubt in the Veteran’s favor, his bilateral hearing loss is at least as likely as not related to in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served in the United States Army from December 1970 to December 1973. These matters appear before the Board of Veterans’ Appeals (Board) on appeal of a November 2014 rating decision of the Regional Office (RO) in Reno, Nevada. In February 2020, the Veteran testified before the undersigned Veterans Law Judge via videoconference from Las Vegas, Nevada; a transcript is of record. Entitlement to service connection for tinnitus and bilateral hearing loss The Veteran contends that he is entitled to service connection for tinnitus and bilateral hearing loss because of in-service noise exposure. Specifically, the Veteran contends that the ringing in his ears and loss of hearing began in service after artillery fire. The Board finds that the evidence is at least in equipoise to support granting the Veteran’s claims. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be “competent”. However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases, including organic disease of the nervous system such as tinnitus and sensorineural hearing loss, may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307 (a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran’s 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, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue.”). The Veteran asserts that he developed tinnitus and hearing loss in service as a result of the duties he performed as a wireman. The October 2014 VA examiner documents tinnitus and shows that bilateral hearing loss for VA purposes was demonstrated. 38 C.F.R. § 3.385. Moreover, the Veteran is considered competent to report the presence of tinnitus, and there is no indication from the record that his account of tinnitus is not credible. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (“ringing in the ears is capable of lay observation”). Thus, the presence of current tinnitus and bilateral hearing loss disability is established. Having determined that the Veteran currently has a diagnosis of tinnitus and bilateral hearing loss disability, the remaining question before the Board is whether these conditions are related to service. The Veteran’s DD-214 documents his military occupational specialty (MOS) was wireman. Additionally, the Board finds that the Veteran’s competent lay account of having been exposed to military noise, including artillery fire, is consistent with his MOS. Given the Veteran is competent to report both exposure to military noise and hearing problems thereafter (as these experiences are capable of lay observation, for which no specific expertise is required), and given that the Veteran’s reports of incurring this in-service noise is consistent with the circumstances of his service, and have remained consistent in the record, the Board concludes that his in-service exposure to noise is established. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (a lay person is competent to report symptoms based on personal observation when no special knowledge or training is required). The Veteran’s service treatment records fail to document tinnitus or hearing loss that is at a level that is disabling for VA purposes. On VA examination in October 2014, the Veteran reported tinnitus bilaterally. The Veteran reported not knowing exactly when the tinnitus began but that it began many years ago. The examiner opined that it was less likely than not that the Veteran’s tinnitus was caused by or a result of military noise exposure. The examiner based the opinion on finding that the Veteran’s service treatment records were silent for tinnitus and that the tinnitus is more likely than not a symptom of his bilateral hearing loss. The Veteran also reported experiencing hearing loss during service. The examiner provided a negative opinion on the basis of normal hearing at separation and no threshold shift from entry to separation. A Veteran is competent to describe observable symptoms such as ringing in the ears and increased difficulty hearing. See Jandreau, 429 F.3d at 1376-77; Charles, 16 Vet. App. at 374-75. During the Veteran’s hearing, he reported joking around with his friends in service that they would eventually get used to the ringing in their ears. His wife testified that for as long as they have been together, the Veteran sleeps with the TV on to mask the sounds of his tinnitus at night. The Veteran testified that his tinnitus began in service which is also consistent with the report he made to the VA examiner that his tinnitus began many years ago. The Veteran also reported experiencing hearing loss during and since service. The Board acknowledges that the VA examiner provided evidence against the claims. However, there is a current diagnosis of tinnitus and statements from the Veteran regarding onset of tinnitus associated with in-service noise exposure. The Board finds competent and credible the assertions from the Veteran, and the balance of positive and negative evidence is in relative equipoise. Resolving all reasonable doubt in the Veteran’s favor, the Board finds service connection for tinnitus and bilateral hearing loss is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-56. REASONS FOR REMAND Initially, the Board notes that the Veteran testified that there are missing VA treatment records from his file. Specifically, the Veteran testified that he sought treatment at the VA hospital in Baltimore following separation from approximately December 1973 until December 1975. These records should be obtained and associated with the Veteran’s claim. 1. Entitlement to service connection for a neck condition 2. Entitlement to service connection for a back condition The Veteran contends that he is entitled to service connection for a neck and back condition. Specifically, the Veteran contends that he was in an automobile accident shortly before separation and he experienced pain and symptoms in his neck and back since, including headaches. The Veteran was not afforded a VA examination to determine the nature and etiology of any neck and back disorders because there was no evidence of an in-service incident. However, the Veteran’s service treatment records show treatment for lower back pain and a few days later a severe headache following an “A.A.” in October 1973. The Veteran and his representative noted the “A.A.” likely meant automobile accident because his accident in Belgium was around the same time. Under McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006), a VA medical examination must be provided when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i). The third prong, which requires that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, is a low threshold. McClendon, 20 Vet. App. at 83. The Veteran has diagnoses of back and neck conditions. There is evidence of an automobile accident in service, and the Veteran testified he has experienced symptoms since the accident. The low threshold under McClendon is met by the Veteran’s testimony linking his symptoms to the automobile accident in October 1973. Consequently, a VA examination is necessary. Accordingly, the Veteran’s claim of entitlement is remanded to obtain VA examinations to determine the nature and etiology of any neck and back conditions. 3. Entitlement to TDIU Finally, because a decision on the remanded issues of service connection for bilateral hearing loss, a neck condition, and a back condition could significantly impact a decision on the issue of TDIU, the issues are inextricably intertwined. A remand of the claims for TDIU is required. The matters are REMANDED for the following action: 1. Attempt to obtain the Veteran’s Baltimore VA treatment records for the period from December 1973 to December 1975. 2. Obtain opinions regarding the etiology of the Veteran’s neck and back conditions. An in-person examination should not be scheduled unless deemed necessary by the clinician providing the opinions. The examiner must review the claims file. The examiner is asked to provide a response to the following: a. Is any neck condition at least as likely as not related to service, including an automobile accident in October 1973? b. Is any back condition at least as likely as not related to service, including an automobile accident in October 1973? (Continued on the next page)   Provide a rationale to support the opinion(s). The Veteran’s statements regarding his in-service injuries are credible. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. N. Fournier, 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.