Citation Nr: 21002954 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 16-39 071 DATE: January 19, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to a compensable rating for right ear hearing loss is remanded. FINDING OF FACT Resolving any doubt in the Veteran’s favor, he has tinnitus related to noise exposure in service. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1944 to June 1946. He served honorably in the United States Navy during the World War II Era. He was awarded the Victory Medal, the American Area Campaign Medal and European African Middle Eastern Area Campaign Medal. The Board sincerely thanks the Veteran and his family for his service to our country. This matter is before the Board of Veteran’s Appeals (Board) from a September 2013 rating decision (RD) by the Department of Veteran Affairs (VA) Regional Office (RO), and have been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107. In October 2020, the Veteran testified before the undersigned Veterans Law Judge at a virtual Board hearing. A transcript of the hearing is of record. The Veteran waived RO consideration of any and all new evidence added to his file. At the hearing, a 60-day extension was granted. No new evidence on this matter was submitted to the VA on or after the hearing date. Service Connection – Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. Establishing direct service connection generally requires competent evidence of three elements: (1) a current disability, (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 U.S.C. §§ 1131, 1110; 38 C.F.R. § 3.303. Alternatively, a veteran can receive compensation via secondary service connection, which can be established when a disability is shown to be proximately due to or the result of a service-connected disease or injury. To be awarded secondary service connection, there must be evidence sufficient to show: (1) that a current disability exists, and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. 1. Entitlement to service connection for tinnitus The Veteran contends that his tinnitus is related to military service. Specifically, he asserts that tinnitus due to exposure to loud noises while in military service. Also, he asserts that he suffered a great deal with his tinnitus. VA Form 9 received July 2016; NOD received November 2013; VA Form 21-526EZ received September 2012. In his 2013 notice of disagreement (NOD), the Veteran stated that he experiences ringing in his left ear for periods of 30 to 40 minutes at a time at least three times a week. Thus, a current disability existed during the pendency of the claim. Shedden, 381 F.3d at 1163; 38 U.S.C. §§ 1131, 1110; 38 C.F.R. § 3.303. An April 2002 rating decision acknowledged that the Veteran would have been exposed to sustained traumatic noise exposure on active duty. The question for the Board is whether the Veteran has tinnitus that began in service or within the first post-service year or whether a nexus exists between the Veteran’s tinnitus and his active military service. The Veteran’s service treatment records (STRs) reveal that in his June 1946 report of physician examination for discharge, for disease or defects of the ear, the examiner noted “none.” The STRs are otherwise, absent of any notation of tinnitus. See STR received January 2020. In a December 2001 VA examination for audio, the Veteran reported periodic, ringing tinnitus in his left ear and that he began noticing this while in his 30’s. Also, he reported that the tinnitus occurs once every one or two months, and last less than a minute. See VA Examination December 2001. In a December 2004 VA examination for audio, for medical history (subjective complaints), the examiner noted that the Veteran suggests no significant change in tinnitus experiences, primarily for the left ear. Also, in the December 2004 VA examination for ear diseases, for medical history (subjective complaints), the examiner noted that since service, the Veteran has had intermittent tinnitus. In the report, the Veteran was diagnosed with bilateral sensorineural type hearing loss with tinnitus, most likely from guns in the Navy. See VA Examination received December 2004. VA treatment records show that in a 2006 VA clinic visit, the Veteran denied tinnitus. For diagnosis, the examiner noted that tinnitus was not found or claimed. See VA Examination received April 2006. In a July 2013 Disability Benefits Questionnaire (DBQ) for hearing loss and tinnitus, the examiner marked “No” for the Veteran report of recurrent tinnitus. The examiner concluded that tinnitus was less likely than not (less than 50 percent probability) caused by or a result of military noise exposure. For rationale, the examiner opined that when asked if the Veteran is experiencing “ringing in the ear” he stated, “very seldom, not now.” See Capri received July 2013. In a June 2016 DBQ for hearing loss and tinnitus, the examiner marked “No” for the Veteran report of recurrent tinnitus. For etiology of tinnitus, the examiner marked that VBA did not request etiology. For function impact of tinnitus, the examiner indicated “No.” See C&P Exam received June 2016. In the July 2016 statement in support of claim (SOC) the VA conceded military noise exposure. See SOC received July 2016. In his December 2019 Appellate Brief, the Veteran through his representative stated that he experiences ringing in his left ear for 30 – 40 minutes at a time, at least three time a week. See Appellate Brief received December 2019; In his October 2020 Board hearing, the Veteran testified that the ringing in his ear (wire sound and/or crickets) started in his 30s, but he did not experience the wire or cricket sounds in the ears during service. Also, he testified that he has not had ringing in his ears for several years. See Hearing Transcript received October 2020. The Board finds that the Veteran’s statements describing his recurrent tinnitus such as ringing in his ears post service is competent and credible lay evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Further, the Board notes conflicting lay and medical evidence as to the occurrence and diagnosis of the Veteran’s tinnitus. However, the Board finds that the evidence is at least in equipoise that service connection for tinnitus is warranted. Specifically, VA has conceded exposure to noise in service; the Veteran’s December 2004 VA examination suggest that his tinnitus is a result of his service-connected right ear hearing loss and most likely related to noise in the Navy; and in his 2013 NOD and December 2019 Appellate Brief, the Veteran reported experiencing recurrent tinnitus at least three times a week. In short, the evidence is in equipoise regarding whether the Veteran’s tinnitus is related to service. Resolving reasonable doubt in favor of the Veteran, this claim on appeal is granted. Gilbert, 1 Vet. App. at 49; 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7. REASONS FOR REMAND The Veteran testified that there are relevant outstanding treatment records, including VA treatment records from the VA facility in Danville. While he indicated he would submit the VA records within 60 days of his hearing, the record does not contain the records mentioned. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA’s duty to assist includes obtaining all relevant VA treatment records). The Veteran also testified that his hearing was checked at “Christly Clinic.” The electronic file reveals that the Veteran submitted an authorization form for Christie Clinic; numerous attempts were made by VA to obtain records from that facility; and the Veteran was advised in December 2020 that VA’s repeated efforts to obtain records from the Christie Clinic were not successful. Accordingly, VA’s duty to assist is satisfied in this regard. In addition, the record reveals that the Veteran is in the process of being scheduled for a VA hearing loss examination. Any examination of record will be reviewed by the AOJ when it readjudicates the claim. The matters are REMANDED for the following actions: 1. Please obtain the Veteran’s VA treatment records pertaining to hearing loss since July 2016, to include audiometric treatment records from VA’s Danville facility. Please print and upload into VBMS any audiometric records in VistA. 2. Thereafter, readjudicate the issue on appeal, to include consideration of any VA audiometric examination report obtained as a result of the December 2020 audiometric exam scheduling request. If any benefit sought is not granted, furnish the appellant and his representative with a supplemental statement of the case and afford   them an opportunity to respond before the record is returned to the Board for further review. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. D. Hayes, 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.