Citation Nr: 21069427 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 16-56 378 DATE: November 18, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, his tinnitus is at least as likely as not the result of in-service noise exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 2003 to November 2003, June 2004 to November 2005, and May 2009 to June 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision issued by the Department of Veterans Affairs (VA) regional office (RO) located in St. Petersburg, Florida. SERVICE CONNECTION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic disorders, to include sensorineural hearing loss and tinnitus, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In such cases, the disease is presumed under the law to have had its onset in service even if there is no evidence of such disease during service. 38 C.F.R. § 3.307(a); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker, 708 F.3d at 1331. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Gilbert, 1 Vet. App. at 53. Entitlement to service connection for tinnitus The Veteran seeks entitlement to service connection for tinnitus, which he contends was incurred in service due to military noise exposure. Specifically, the Veteran claims that a truck that he was in while serving in Iraq was hit by an improvised explosive device (IED). As an initial matter, the Board notes that the Veteran is competent to describe the nature and extent of his in-service noise exposure. See C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Moreover, the Board notes that tinnitus is a type of disability that may be established on the basis of lay evidence alone. Charles v. Principi, 16 Vet. App. 370 (2002). As such, there is no dispute that the Veteran has a current diagnosis of tinnitus. The question remaining before the Board is whether the Veteran's current tinnitus is etiologically related to his in-service noise exposure. Based on a careful review of the subjective and clinical evidence of record, the Board resolves all reasonable doubt in favor of the Veteran and finds that service connection for tinnitus is warranted. The Veteran reported that he suffers from high pitched ringing in his ears on a daily basis and hearing loss since joining the military due to his exposure to acoustic trauma caused by nearby weapons/artillery fire and explosions. His DD-214s show that he served in Iraq and earned a number of decorations, medals, citations and/or campaign ribbons, including but not limited to the Iraq Campaign Medal and Combat Action Badge. His military personnel records show that on February 25, 2005, he was attacked with an IED which detonated within a five-meter distance from the Veteran. In a May 2005 Post-Deployment Health Assessment, the Veteran indicated that he developed ringing in his ears during his period of service ending in November 2005. The Board acknowledges that the record does not contain an adequate medical opinion with regard to the etiology of the Veteran's tinnitus. Nonetheless, the Board finds that there is sufficient evidence in the record to decide the claim. In the absence of an adequate medical opinion to the contrary, the Board accepts the Veteran's lay statement that his tinnitus had its onset during service and that it has continued ever since. See Layno, 6 Vet. App. at 469-70. Based on the Veteran's competent and credible statements regarding the onset and continuity of his tinnitus symptoms, the Board finds that the evidence is at least in equipoise that the Veteran's tinnitus was caused by his in-service noise exposure. Accordingly, resolving all reasonable doubt in favor of the Veteran, service connection for tinnitus is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss is remanded. The claims of entitlement to service connection for bilateral hearing loss is being remanded for the AOJ to afford the Veteran a VA audiological examination, including an opinion on the etiology of the Veteran's hearing loss, if any. In disability compensation claims, VA must provide a VA medical examination 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. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Veteran has submitted private medical treatment records in support of his claim and those records contain statements by his healthcare providers that "[h]e has chronic hearing loss... probably secondary to a loud noise exposure prior." Considering the foregoing, the Board finds that the McLendon criteria are met, and that the Veteran should be afforded a VA audiological examination for his claimed hearing loss. The record reflects that a VA audiological examination was requested for the Veteran in September 2013, but that he failed to appear for the examination as scheduled. However, the Board notes that in March 2013, the Veteran submitted a VA Form 20-572 notifying VA of a change in his address. The apartment number on that form differs from the apartment number listed for the Veteran in the September 2013 VA examination request, and there is no record of any notice being sent to the Veteran advising him of the VA examination or the address to which any such notice was sent. Finally, the Veteran has stated that he never received any notice advising him that a VA audiological examination was scheduled in connection with these claims to his new addressed after he moved. See VA Form 9, Appeal to Board of Veterans' Appeals, received November 4, 2016. The Board finds, based on the above, that additional attempts should be made to afford the Veteran a VA audiological examination to determine if he has a currently hearing loss disability for VA purposes and that includes an opinion on the etiology of any hearing loss. The Veteran should be given adequate notice of the examination and the notice should be documented in the claims file. The examiner should consider the Veteran's in-service noise exposure, as documented by his DD-214s and military personnel records. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination with an appropriate examiner to evaluate the nature and etiology of any hearing loss disability. The Veteran should be given adequate notice of the examination and the notice should be documented in the claims file. The examiner must review the claims file and a copy of this remand. The examiner should note if the Veteran has a hearing loss disability for VA purposes. The examiner is asked to provide a response to the following: (a.) Is any hearing loss at least as likely as not related to service, including in-service exposure to the loud noises of nearby weapons fire and explosions? (b.) Is it at least as likely as not that the hearing loss (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? In doing so, the clinician should assume that the Veteran was exposed to hazardous noise in association with an IED attack which detonated within a five-meter distance from the Veteran. The examiner should consider the Veteran's statements indicating that he has suffered since active duty from hearing loss as a result of in-service noise exposure (artillery fire and explosions). (Continued on the next page) Provide a rationale to support the opinion(s). A. J. Spector Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Banks, 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.