Citation Nr: 21076427 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 18-30 282 DATE: December 23, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for residuals of a left foot injury is remanded. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, the evidence is at least in equipoise that his tinnitus is etiologically related to service. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1986 to June 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a virtual hearing before the undersigned in August 2021. A transcript is of record. Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Given the Board's favorable disposition of the service connection claim for tinnitus, the Board finds that all notification and development action needed to fairly adjudicate this part of the appeal has been accomplished. 1. Entitlement to service connection for tinnitus is granted. The Veteran contends that his tinnitus is due to his military noise exposure. The Board concludes that the Veteran has a current diagnosis of tinnitus that is related to his military noise exposure. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). Service connection may be granted 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 (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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 diseases, such as other organic diseases of the nervous system, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. That presumption is rebuttable by probative evidence to the contrary. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Other organic diseases of the nervous system include tinnitus. See Fountain v. McDonald, 27 Vet. App. 258 (2016). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). 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). A veteran is competent to provide a diagnosis of tinnitus because it does not involve a complex medical question. See Layno. Furthermore, a veteran is competent to report experiencing tinnitus since service. For VA purposes, tinnitus is the type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). Thus, if a veteran reports ringing in his ears, then a diagnosis of tinnitus is generally provided without further examination. In addition to the diagnosis of tinnitus being reliant upon lay statements, the etiology of the disorder is similarly reliant upon them. The date that a veteran reports that the tinnitus symptoms began is generally accepted as the date that the disorder began, without further examination, unless there is something in the record that would call the Veteran's statement into question. Military personnel records show that the Veteran was an aviation maintenance technician, which has a high probability of noise exposure. Further, the records show that the Veteran underwent basic aviation training. Based on the foregoing, the Board finds that the Veteran was exposed to noise during his active duty service. The question remains whether the Veteran's current tinnitus is etiologically related to his military service. In that regard, in the September 2015 lay statement and at the August 2021 hearing, the Veteran reported that his tinnitus began in service and continued to present date. Additionally, in a February 2018 lay statement, the Veteran's father reported that the Veteran complained of ringing in his ears after returning from service. While the July 2015 and March 2018 VA examiners opined that the Veteran's tinnitus was less likely than not due to his military service, the Board finds that the Veteran's statements in the September 2015 notice of disagreement and August 2021 hearing that his tinnitus began during service and continued after service to be credible. Therefore, the Board finds that based on the Veteran's competent and credible statements regarding the onset and continuity of his tinnitus symptoms, the evidence is at least in equipoise, and service connection for tinnitus is warranted. Accordingly, resolving all reasonable doubt in favor of the Veteran, service connection for tinnitus must be granted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The July 2015 and March 2018 VA examiners found that the Veteran had preexisting hearing loss. On review, while some high frequency hearing loss is noted on the Veteran's enlistment audiogram (consistent with the examiner's findings), it does not appear that a hearing loss disability was noted on the Veteran's enlistment examination report. A veteran is presumed to be in sound condition except for defects noted when examined and accepted for service. Noted denotes only such conditions that are recorded in examination reports. The existence of conditions prior to service reported by the Veteran as medical history does not constitute a notation of such conditions, but will be considered together with all other material evidence in determining the question of when a disease or disability began. 38 C.F.R. § 3.304 (b)(1). Clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness. Once the presumption of soundness has attached, VA holds the burden of proving by clear and unmistakable evidence that both (1) the Veteran's disease or injury pre-existed service, and (2) that the disease or injury was not aggravated by service. 38 U.S.C. § 1111. Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. Vanerson v. West, 12 Vet. App. 254 (1999) (clear and convincing burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than clear and unmistakable evidence). It is an onerous evidentiary standard, requiring that the non-aggravation result be undebatable. Cotant v. West, 17 Vet. App. 116 (2003). Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service, the second step necessary to rebut the presumption of soundness, a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the pre-existing condition. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); 38 U.S.C. § 1153. The burden is on the government to rebut the presumption of soundness by clear and unmistakable evidence that a condition was both pre-existing and not aggravated by service. In light of the above, the Board finds that the July 2015 and March 2018 VA examination opinions are inadequate as the examiners did not apply correct legal standard. As such, the Board finds that a remand is required to obtain a supplemental VA opinion. 2. Entitlement to service connection for residuals of a left foot injury is remanded. At the August 2021 hearing, the Veteran reported that his left foot injury was due to an in-service motorcycle accident that occurred either in late 1988 or 1989. He was rushed to North Island Clinic and then sent to the Navy clinic in San Diego, California. This is confirmed by a June 1988 examination indicating that the Veteran was in a motorcycle accident about a month prior (May 1988) and treated at North Island Clinic. However, it appears that the RO requested information from North Island Clinic for the year 1989. As such, a remand is warranted to obtain these outstanding service treatment records. The matters are REMANDED for the following action: 1. Obtain the Veteran's complete service treatment records, to include documents pertaining to a motorcycle accident that occurred in 1989. It should be noted that the record shows that the Veteran was treated at North Island Clinic and that the Veteran reported that he had also been sent to the Navy clinic in San Diego, California. Document all requests for information as well as all responses in the claims 2. Obtain a supplemental VA opinion from an appropriately qualified examiner regarding the nature and etiology of the Veteran's bilateral hearing loss. Only if deemed necessary to provide an opinion, should the Veteran be afforded a new VA examination. Provide the claims file, including a copy of this REMAND, to the examiner for review. After reviewing the claims file, the examiner should address the following: (a) Is it clear and unmistakable (obvious, manifest, and undebatable) that the Veteran's bilateral hearing loss existed prior to his entry into active service. In providing this opinion, please discuss the June 1985 enlistment audiogram and lay statements indicating that the Veteran had some hearing loss prior to service. (b) If the examiner determines that the Veteran's hearing loss clearly and unmistakably existed prior to entry into service, then opine whether it is clear and unmistakable that his hearing loss was not aggravated during service. (c) If the examiner determines that the Veteran's hearing loss did not clearly and unmistakable exist prior to entry into service, then opine whether it is at least as likely as not (approximately 50 percent probability or greater) that his hearing loss had its onset during active duty service, or was otherwise etiologically related to service. All opinions expressed must be accompanied by a clear and complete rationale. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Ko, 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.