Citation Nr: 21065786 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 19-10 343 DATE: October 27, 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 competent, credible, and probative lay and medical evidence is in relative equipoise as to whether the Veteran's tinnitus had its onset during active duty service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1960 to July 1962. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran's law judge (VLJ) at an August 2021 videoconference hearing. The transcript has been associated with the electronic claims file. This case has been advanced on the docket pursuant to 38 C.F.R. § 20.900 (c). 1. Entitlement to service connection for tinnitus Service connection may be granted for a disability resulting from disease or injury incurred or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). In general, service connection requires (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 382 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease or injury diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). A Veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived or experienced, were directly through the senses. 38 C.F.R. § 3.159; Layno v. Brown, 6 Vet. App. 465, at 469-71 (1994). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus. However, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the lay person is competent and does not otherwise require specialized medical training and expertise to do so; i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Then, the Board must determine whether the evidence is credible. The Board must make an express credibility finding regarding lay evidence. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Finally, the Board must weigh the probative value of the proffered evidence in light of the entirety of the record. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran asserts that service connection for tinnitus is warranted. He contends that his disability is due to noise exposure in artillery during active service in Germany. See August 2021 Hearing Transcript. Considering the pertinent evidence in light of the governing legal authority, and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for tinnitus is warranted. The Veteran reports current "bothersome" tinnitus, beginning in 1968. See June 2015 VA Examination Report; see also August 2021 Hearing Transcript. Thus, the first element of service-connection is met. See Holton, supra. Regarding whether there was an in-service event or injury, a review of the Veteran's STRs reflect no complaints of tinnitus. However, hazardous noise exposure has been conceded. Thus, there is evidence of an in-service injury and the question becomes one of nexus. In June 2015, the Veteran was afforded a VA examination to determine etiology of his tinnitus. The Veteran reported first noticing tinnitus in 1968. The VA examiner opined that the Veteran's tinnitus is at least as likely as not caused by or the result of his service. In support of this opinion, the VA examiner reasoned that his hazardous noise exposure may have resulted in acoustic trauma. An addendum VA medical opinion was obtained in July 2015. After reviewing the evidence of record, the VA examiner opined it was less likely than not that the Veteran's tinnitus was caused by, or a result of, his military service. The examiner's reasoned that that the Veteran's hearing was normal in-service and his audiometric configuration falls well within the extreme 95th percentile of predicted audiogram after 20 years of noise exposure. The Veteran was afforded another VA examination in August 2018. The Veteran reported a tinnitus onset about four years prior with buzzing and hissing occurring six to nine times a day. The VA examiner opined that the Veteran's tinnitus is less likely than not caused by or a result of the Veteran's hazardous noise exposure. In support of this opinion, the VA examiner reasoned that the etiology of tinnitus cannot be determined using current clinical technologies and that etiology is typically inferred by patient history and review of medical records. The VA examiner noted that the Veteran's MOS has a high probability of noise exposure but stated that the Veteran's STRs show no complaints or treatment for tinnitus and delayed-onset tinnitus is unlikely. However, after carefully considering the record on appeal, and affording the Veteran the benefit of the doubt, the Board finds that service connection for tinnitus is warranted. Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153 (a) (2014); 38 C.F.R. § 3.303 (a) (2017); Jandreau, supra; see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person 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 (Fed. Cir. 2009). The Board notes the negative nexus opinion provided by the July 2015 and August 2018 VA examiners. However, these opinions do not adequately consider the Veteran's lay reports of tinnitus. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). The Veteran is competent to report a current diagnostic impression of tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that lay testimony may establish the presence of tinnitus because ringing in the ears is capable of lay observation). Here, the Veteran has confirmed in-service noise exposure, and his descriptions of in-service noise exposure are consistent with the circumstances of his service as documented by his service records. He has stated that he experiences tinnitus today due to his conceded hazardous noise exposure. See August 2021 Hearing Transcript; see also Caluza, supra. The Board also observes that the Veteran is competent to report that his symptoms of tinnitus since service, and the Board does not have a basis upon which to question or doubt the credibility of the Veteran's lay contentions. The Board finds that the evidence is approximately evenly balanced on this issue. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2008) (lay evidence may suffice to prove service connection on its own merits). Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that it is at least as likely as not that the Veteran's tinnitus is linked to service. The Veteran is therefore entitled to the benefit of the doubt. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2019). Accordingly, service connection is warranted for tinnitus. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2018). The Veteran asserts entitlement to service connection for bilateral hearing loss. Specifically, the Veteran contends that exposure to artillery during service caused his current hearing loss. See August 2021 Hearing Transcript. The Veteran was afforded a VA examination in August 2018. The VA examiner noted bilateral sensorineural hearing loss. The Veteran reported not being able to hear people, mostly women. The VA examiner opined that the Veteran's bilateral hearing loss is less likely than not caused by or a result of hazardous noise exposure in service. In support of this opinion, the VA examiner reasoned that the Veteran had normal hearing at entrance and there is no likelihood for significant threshold shifts to have occurred. The VA examiner noted the Veteran's report that he first noticed decreased hearing about four years prior and that current science indicates that the delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely. The Veteran submitted additional evidence in August 2021, consisting of a private audiological examination with no etiology opinion and scientific papers detailing delayed onset hearing loss linked to hazardous noise exposure. During the August 2021 hearing, the Veteran's representative requested a new VA examination for consideration of additional evidence. Therefore, the Board finds that the Veteran should be provided with a new VA examination to assess the etiology of these claimed disorders with consideration of the new evidence of record. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate examiner to determine the etiology of his hearing loss at the Somerset VA Clinic in Somerset, Kentucky. Please ensure that the Veteran's wife is able to attend the VA examination The evidentiary record, including a copy of this remand and the newly submitted evidence, must be made available to and reviewed by the examiner. The examination report must include a notation that this review of the evidence of record occurred. The examiner is asked to respond to the following inquiry: (a.) Is at least as likely as not (50 percent probability or greater) that the Veteran's current hearing loss had its onset, or is otherwise related to, his military service? The examiner must take into account the conceded noise exposure. The examiner must also address the Veteran submitted scientific articles. The examiner must include a complete rationale to support any opinion provided. If an opinion cannot be provided without resorting to mere speculation, the examiner shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 2. After completing all actions set forth above and any further action needed because of the above development, readjudicate the service connection claim on appeal. If any benefit on appeal remains denied, the RO should furnish to the Veteran and his representative an appropriate Supplemental Statement of the Case (SSOC) and allow the appropriate time for response. Then return the case to the Board for further appellate review. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. C. Slaughter, 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.