Citation Nr: 21069667 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 20-13 740 DATE: November 19, 2021 ORDER Service connection for tinnitus is granted. REMANDED Service connection for bilateral hearing loss disability is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, tinnitus had its onset during active-duty service and has continued since that time. CONCLUSION OF LAW The criteria for an award of service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the United States Army from May 1965 to May 1968 with additional reserves service. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In November 2021, the Veteran testified at a virtual hearing before the undersigned. Service Connection for Tinnitus The Veteran seeks to establish service connection for tinnitus as due to active service noise exposure. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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 may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. The United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board finds that service connection is warranted for the Veteran's tinnitus. First, the record demonstrates that the Veteran currently has tinnitus. Specifically, the Veteran has reported that he experiences recurrent tinnitus. See April 2017 VA Examination. For VA purposes, tinnitus is recognized a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that the Veteran was competent to testify as to ringing in the ears in service and that he experienced such ringing ever since service "because ringing in the ears is capable of lay observation"). Thus, the requirement for a current disability has been met. Davidson, supra. Second, the record supports a finding of in-service injury. In November 2021, the Veteran testified that he first began experiencing tinnitus during his service. Specifically, he was exposed to artillery blasts after which he began to experience tinnitus. Although the Veteran wore ear plugs, he testified that they did not work well. The Veteran also testified that his tinnitus has continued since his service ended. The Board notes that the Veteran made similar statements regarding onset during his April 2017 VA examination and September 2019 VA examination. The Board finds the Veteran's statements to be credible. Thus, the requirement for in-service noise exposure is met. With regard to the third and final element of service connection, as noted above, the Veteran has reported the onset of tinnitus in service, with continuity of symptoms since. Since he first experienced tinnitus, it has continued and gotten worse over a period of time. See November 2021 Hearing Transcript. The Board finds the Veteran's statements concerning continuity of symptomatology to be competent and credible. Moreover, inasmuch as tinnitus is recognized as a chronic disease, it can be service-connected on the basis of continuity of symptomatology alone, without a medical nexus opinion. See, e.g., Walker, supra. The Board acknowledges that the April 2017 VA examiner and September 2019 VA examiner were unable to provide etiological opinions as they were unable to obtain valid testing results. However, as noted above, tinnitus is recognized as a chronic disease and it can be service-connected on the basis of continuity of symptomatology alone, without a medical nexus opinion. Given the above, and resolving reasonable doubt in the Veterans favor, the Board finds that the evidence shows the Veteran had tinnitus in service which has continued since. As such, service connection for tinnitus is granted. REASONS FOR REMAND Service connection for bilateral hearing loss disability is remanded. The Board finds that a remand is warranted to obtain a new examination. The April 2017 VA examiner and September 2019 VA examiner were unable to obtain valid testing results. Private audiological testing results from 2015, submitted by the Veteran in 2018, reflect testing results in graphical form but do not contain the results of Maryland CNC testing. 38 C.F.R. § 3.102. Given the above, the Board finds that a new VA examination and opinion would be beneficial in helping determine if the Veteran has a hearing loss disability and if the disability is related to service. The matter is REMANDED for the following action: 1. Assist the Veteran with uploading updated treatment records. 2. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for a VA audiometric examination. The examiner should review the record. All indicated tests (including audiometric and Maryland CNC speech discrimination testing) should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran has a bilateral hearing disability, if so, whether such disability had its onset in, or is otherwise attributable to, the Veteran's period of active service, to include in-service exposure to noise. In so doing, the examiner should discuss the Veteran's May 1968 separation examination which reflects decreased hearing at the 4000 Hz threshold and private testing results submitted by the Veteran in 2018. A complete medical rationale for all opinions expressed must be provided. (Continued on next page) 3. If upon completion of the above the issue remains denied, the appeal should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Gandhi, 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.