Citation Nr: 21003875 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 20-01 448 DATE: January 25, 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 appellant has experienced symptoms of tinnitus since his separation from active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty in the U.S. Army from July 1958 to July 1961. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2019 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The appellant filed a timely Notice of Disagreement (NOD), received in March 2019. A Statement of the Case (SOC) was issued in December 2019. A timely substantive appeal was received in March 2019. In his March 2019 substantive appeal, the appellant requested a hearing before a Veterans Law Judge. In November 2020, the appellant was afforded a telehearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. 1. Entitlement to service connection for tinnitus is granted. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. "To establish a right to compensation for a present disability, a Veteran must show: '(1) the existence of a present 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 'the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including organic diseases of the nervous system, such as sensorineural hearing loss and tinnitus, may also be established on a presumptive basis by showing that such a 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. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). “It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran.” See Gilbert, 1 Vet. App. at 54. After a review of the evidence of record, and granting the appellant the benefit of the doubt, the Board finds that service connection for tinnitus is warranted because the appellant has experienced symptoms of tinnitus since his active duty service. The appellant's current tinnitus, which is considered a chronic disease by VA, began during his active service and has continued since that time. At a November 2020 hearing before the undersigned Veterans Law Judge, the appellant credibly testified to having had symptoms of ringing in his ears since his active service where he used a 30-caliber browning automatic weapon. Tinnitus is an inherently subjective disability and is therefore readily capable of lay diagnosis. See Charles v. Principi, 16 Vet. App. 370 (2014). Although the appellant’s service treatment records are negative for notations of tinnitus in service, for the reasons discussed above, the Board finds the appellant is competent to state that he has had tinnitus which began during active duty and has persisted since separation. Moreover, having had the opportunity to observe his demeanor at a hearing, the Board finds his statements in this regard to be credible. As set forth above, under the benefit-of-the-doubt rule, for the appellant to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Given the evidence set forth above, such a conclusion cannot be made in this case. Under these circumstances, the record is sufficient to award service connection for tinnitus. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The appellant asserts entitlement to service connection for bilateral hearing loss, which he contends was incurred during his active duty service. He has indicated that he was exposed to recurrent noise from having to use a 30-caliber browning automatic weapon as a light weapons infantry soldier. The appellant testified that he was never issued earplugs during his time on active duty, and he would have to withstand “all of the banging and booming” that was up against his ear from firing the automatic weapon. The appellant was afforded a VA examination in November 2018 at which time the examiner confirmed a diagnosis of bilateral hearing loss sufficient for VA compensation purposes. The examiner determined that the diagnosed bilateral hearing loss was less likely as not caused by or a result of the appellant’s military service because the appellant’s separation examination in June 1961 showed “excellent” hearing thresholds from 500 Hz to 8000 Hz. The Board finds that the November 2018 opinion is inadequate as it was based solely on the normal audiometric examination conducted at separation. VA regulations, however, do not preclude service connection for a hearing loss which first met VA’s definition of disability after service. See Hensley v. Brown, 5 Vet. App. 155, 157-59 (1993). Thus, the Board finds the evidence of record is insufficient to determine whether service connection is warranted for bilateral hearing loss. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made). This matter must therefore be remanded to obtain a new VA opinion as to the etiology of the current hearing loss disability. The matters are REMANDED for the following action: 1. Obtain a medical opinion from an appropriate clinician with regard to the etiology of the appellant’s diagnosed bilateral hearing loss. The claims file must be made available to the clinician rendering the requested opinion. If the clinician determines that an examination is necessary, one should be scheduled. Following review of the claims file, the clinician should provide an opinion, with supporting rationale as to whether it is at least as likely as not that the appellant’s current bilateral hearing loss was incurred in service or is otherwise causally related to his active service or any incident therein, to include military noise exposure. In this regard, the examiner should note that the absence of evidence of treatment for bilateral hearing loss in the appellant’s service treatment records should not serve as the sole basis for a negative opinion. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.D. Hobbs, 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.