Citation Nr: 21076840 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 20-14 783 DATE: December 28, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to a rating in excess of 30 percent for bilateral hearing loss is remanded. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, his tinnitus began during active service and has been continuous since then. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(3), 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from May 1955 to May 1957. These matters come to the Board of Veterans' Appeals (the Board) on appeal following a February 2019 rating decision denying entitlement to service connection for tinnitus and right ear hearing loss. In the same decision, the Agency of Original Jurisdiction (AOJ) granted entitlement to service connection for left ear hearing loss and assigned a noncompensable evaluation effective September 26, 2017. During the course of this appeal, the AOJ granted entitlement to service connection for right ear hearing loss and assigned a 30 percent rating for bilateral hearing loss effective September 26, 2017. The Veteran participated in a hearing before the undersigned Veterans Law Judge in September 2021. A transcript of this hearing is of record. 1. Entitlement to Service Connection for Tinnitus The Veteran states that he has experienced constant tinnitus since his active service. He contends that his tinnitus is due to noise exposure that occurred during service due to his military occupational specialty (MOS) of track vehicle mechanic and auto motor mechanic. Service connection may be granted for disabilities resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. Entitlement to service connection requires evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for an injury or disease 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). Certain chronic diseases, including organic diseases of the nervous system, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C. §§ 1112, 1113; see also 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Tinnitus qualifies as a chronic disease, as it is considered an organic disease of the nervous system. See Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013). As tinnitus is a chronic disease, the Veteran can show entitlement to service connection by demonstrating continuity of symptomatology. VA treatment records from December 2017 and a December 2019 VA examination show that the Veteran has a current diagnosis of tinnitus. The first Shedden element has therefore been met. 381 F.3d at 1166-67. As to an in-service event, the Veteran asserted that he experienced noise exposure due to his MOS as a track vehicle mechanic and an auto motor mechanic. He has also stated that he experienced tinnitus following noise exposure related to training in the artillery. He is competent to provide such a history and the Board finds no basis to question his credibility. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). The second element of Sheddenan in-service eventis met. 381 F.3d at 1166-67. Regarding the third element of service connection, the Veteran reported during his December 2019 VA examination that he has experienced tinnitus since the age of 22 during his active service. He further testified during his September 2021 hearing that he has had tinnitus "[f]rom the time [he] first heard the gun go off" during service. Again, he is competent to provide evidence that his tinnitus began during active service because lay observation is adequate to establish the presence and onset of tinnitus. Charles, 16 Vet. App. at 374. The Veteran also testified that his tinnitus has persisted since its initial onset during active service. The Veteran's reports that he has experienced tinnitus since active service are consistent, and they are also consistent with lay statements from his wife and daughter. The Board notes that the Veteran denied the presence of tinnitus during multiple VA examinations and throughout his VA treatment records. Notably, the January 2019 VA examiner reported that the Veteran had repeatedly denied experiencing tinnitus during his 1992 and 2007 VA examinations. She stated that the Veteran "is very consistent with this." However, the Veteran indicated that he either was confused or misheard examiners when they asked him about tinnitus in the past. Similarly, his authorized representative asserts that the Veteran was likely unable to hear examiners when they asked if he had tinnitus or perhaps misunderstood the question. The Board finds no reason to question the credibility of these statements. The Board also acknowledges the negative etiological opinion regarding the Veteran's tinnitus from the December 2019 VA examination. However, this opinion is inadequate because it fails to address the Veteran's lay statements that he has experienced tinnitus since active service. See Miller v. Wilkie, 32 Vet. App. 249, 257 (2020) (holding that an examiner's failure to consider a veteran's testimony when forming a medical opinion renders it inadequate). Although the examiner noted that the Veteran began experiencing tinnitus during service when he was 22 years old, simply noting the Veteran's statements without actual discussion of them is insufficient. In light of this, the December 2019 medical opinion is entitled to limited probative weight. See Miller, 32 Vet. App. at 257; see also McKinney v. McDonald, 28 Vet. App. 15, 30 (2016). Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's tinnitus arose during service and has continued since his separation. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to a Rating in Excess of 30 Percent for Bilateral Hearing Loss The Veteran's most recent VA examination was conducted in May 2021. While the Board is not required to remand an appeal to obtain a new VA examination simply due to the passage of time, a new VA examination is appropriate when the claimant asserts that the disability in question has undergone an increase in severity since the last VA examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007). During the September 2021 hearing, the Veteran and his wife reported that his hearing has worsened in the months since his most recent VA examination in May 2021. In light of this assertion, the Board finds that a remand is necessary to ascertain the current severity of his bilateral hearing loss. The matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral hearing loss. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M. Sachs, 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.