Citation Nr: 21066107 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 17-53 347 DATE: October 28, 2021 ORDER Service connection for tinnitus is granted. REMANDED The issues of entitlement to service connection for hay fever, running ears, and an acquired psychiatric disorder, claimed as nervous trouble, are remanded for additional development. FINDING OF FACT The Veteran's 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, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1965 to July 1967. He was awarded the National Defense Service Medal. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran requested a hearing before a Veterans Law Judge in his substantive appeal. The Veteran was scheduled to testify at a Board hearing in September 2021 but was failed to appear for his scheduled hearing. To date, the Veteran has not requested a new Board hearing. Accordingly, the Board considers his hearing request to be withdrawn. 38 C.F.R. § 20.704(d). The Board further notes that the RO mischaracterized the Veteran's claim of service connection for running ears as a claim for tinnitus. During the period on appeal, the Veteran has repeatedly asserted that the two claimed disabilities are distinct. The Board has properly framed the issues on appeal as reflected on the title page. With respect to psychiatric disorders, a claim of service connection encompasses all pertinent symptomatology, regardless of how that symptomatology is diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1, 5, 9 (2009). The Board has recharacterized the issue of service connection for nervous trouble of any sort as a claim of entitlement to service connection for an acquired psychiatric disorder. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection for a recognized chronic disease can be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331; 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been "shown in service," there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. Tinnitus is a chronic disease for VA purposes. 38 C.F.R. § 3.309(a). 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 current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994). 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); Jandreau, 492 F.3d at 1376-77. As previously discussed, certain chronic diseases are subject to a grant of service connection on a presumptive basis when present to a compensable degree within the first post-service year, to include organic diseases of the nervous system. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Tinnitus is classified as organic diseases of the nervous system. Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). The Veteran asserts that he currently has tinnitus which began during service that developed as a result of noise exposure associated with his duties on the shooting range as a military police officer. The Veteran's military occupational specialty (MOS) during this period was as a supply clerk, clerk typist, and military police, positions consistent with the Veteran's reports of noise exposure. When a condition may be diagnosed by its unique and readily identifiable features, as is the case with tinnitus, 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, 305 (2007); Charles v. Principi, 16 Vet. App. 370 (2002). Therefore, the remaining inquiry is whether the Veteran's current tinnitus is related to service. When a claim involves a diagnosis based on purely subjective complaints, the Board is within its province to weigh the Veteran's testimony and determine whether it supports a finding of service incurrence and continued symptoms since service. See Barr, 21 Vet. App. at 305. If it does, such testimony is sufficient to establish service connection. Id. Here, the Board finds the Veteran's reports of the in-service onset of his tinnitus and its continuation thereafter both competent and credible. Further, the Veteran's statements also amount to evidence of continuity of symptomatology which would warrant consideration of 38 C.F.R. § 3.303(b), as well as the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309(a). As such, the Board finds that the Veteran's testimony is sufficient to establish service connection in this instance. REASONS FOR REMAND After reviewing the evidence of record, the Board finds that the issues of entitlement to service connection for hay fever, running ears, and an acquired psychiatric disorder must be remanded. The Veteran has not yet been afforded a VA examination in connection with his service connection claims. VA must provide an examination when there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Lay testimony as to continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service, and the threshold for finding that the disability (or symptoms of a disability) may be associated with service is low. Id. at 83. Furthermore, the Veteran is competent to testify to in-service injuries, symptoms, and events. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In this case, the Veteran asserts that he had anxiety and depression in service due to fear of being deployed to the Republic of Vietnam. He also stated that he had liquid running from his ears and that they had to be drained frequently and that he had hay fever that interfered with his service duties. Given the Veteran's reports attributing these conditions to service and their ongoing nature, the Board finds that the low threshold of the McLendon standard has been met in this instance, and that the Veteran should be afforded VA examinations and opinions prior to adjudication of the claims. See McLendon, 20 Vet. App. 79, 81 (2006). The matters are REMANDED for the following actions: 1. Obtain any outstanding service treatment records and associate them with the claims file, to include enlistment and separation examinations and sick call visits. If such records are unavailable after a reasonable search, please associate a formal finding of unavailability with the claims file and notify the Veteran and his representative. 2. Ask the Veteran to provide the names and addresses of any medical provider, VA or private, who has treated him for the above disabilities. After securing any necessary releases, the AOJ should request any relevant records identified that are not duplicates of those already contained in the claims file. Additionally, obtain any outstanding VA treatment records. If any requested records are unavailable, the claims file should be annotated as such and the Veteran and his representative notified of such. 3. Schedule the Veteran for VA examinations for his claimed hay fever, running ears, and acquired psychiatric disorder; the claims folder must be reviewed in conjunction with the examination. For each disability, the examiner must opine as to whether it is at least as likely as not any currently diagnosed disability, if any, was caused or aggravated by active service. A full and complete rationale is required for all opinions expressed. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Bilstein, 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.