Citation Nr: 21077026 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 18-48 997 DATE: December 28, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT The weight of the evidence is at least in relative equipoise as to whether the Veteran has tinnitus that is related to his active service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 2003 to January 2005, and August 2008 to September 2009. For his meritorious service, the Veteran was awarded (among other decorations) the Army Achievement Medal. This matter is before the Board of Veterans' Appeal (Board) on appeal from a May 2018 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in September 2021. A transcript of the hearing is in the Veteran's file. Entitlement to service connection for tinnitus. Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may also be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Tinnitus is recognized by VA as a "chronic disease" under 38 C.F.R. § 3.309(a), such that the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Here, the Veteran has offered competent evidence as to his history of tinnitus. September 2021 Board hearing transcript; see also Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that a layperson is capable of observing tinnitus). As such, the first element of service connectiona current disabilityhas been met. Next, the evidence supports the finding of an in-service event. Specifically, the Veteran contends that he through his MOS of a combat engineer, he was exposed to demolitions, IEDs, and gunfire, which is consistent with high probability of noise exposure. Moreover, the Veteran contends that the ringing in his ears began in-service and has continued ever since. Generally, a veteran is competent to report that which he perceives through the use of his senses, including events capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Further, the Veteran's testimony is well-documented and unvarying throughout the record, and there is no evidence which tends to contradict his recollections. Moreover, the Board notes that the exposure to hazardous noise is consistent with the Veteran's MOS. As such, the second element of service connectionan in-service eventhas been met. The Veteran's claim has been denied on the basis that his current tinnitus is less likely than not related to his active service. See September 2017 Examination Report. However, the Veteran has contended that his tinnitus symptoms started in-service and continued since discharge from service. Specifically, the Veteran has stated that his tinnitus had its onset following the in-service demolitions and explosion noise exposure and has continued since that time. See September 2021 Board hearing transcript. Thus, although there is an absence of complaints or treatment for tinnitus for many years after service separation, the Board resolves reasonable doubt in the Veteran's favor and finds that he had continuous symptoms of tinnitus since service separation. Accordingly, the requirements of presumptive service connection under 38 C.F.R. § 3.303(b) have been met. In summary, the preponderance of the evidence is for finding that tinnitus was caused related to his active-duty service, and service connection is granted. See 38 C.F.R. § 3.303 (b); Walker, 708 F.3d at 1338. Thus, the claim for service connection is granted. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss is remanded. The Veteran is seeking service connection for bilateral hearing loss. The Veteran contends that he was exposed to explosions and gunfire while serving as a combat engineer during his active service. To that end, the Veteran was afforded a September 2017 VA examination to determine the nature and etiology of his bilateral hearing loss. The VA examiner opined that the Veteran's bilateral hearing loss was unrelated to the Veteran's active service. However, the VA examiner based the medical opinion solely on the absence of hearing loss during the Veteran's entrance and separation audiograms. As such, the Board finds the September 2017 VA medical opinion to be inadequate for rating purposes as the VA examiner based the medical opinion on the absence of evidence of hearing loss on service. Under these circumstances, the Board will not proceed with final adjudication of the claims until a competent medical opinion with supporting rationale is obtained that adequately addresses the etiology of the Veteran's claimed disability. The matters are REMANDED for the following action: Obtain an opinion as to whether the Veteran's bilateral hearing loss is related to his active service. Whether an examination is needed prior to rendering this opinion is left to the discretion of the examiner. Regardless of whether an examination is performed, the examiner is to state: (a) Whether it is at least as likely as not that the Veteran's bilateral hearing loss is related to his active service, to include his in-service noise exposure, to include demolitions, IEDs, and gunfire. (b) If the answer to (a) is negative, then the examiner must explain the usual genesis and progression of sensorineural hearing loss and explain the likelihood of whether the Veteran's hearing disorder developed independently of the in-service noise exposure. Indeed, the examiner should state whether the pattern of hearing loss currently demonstrated are consistent with the Veteran's hearing loss beginning in service, or whether an alternate etiology is more likely. A complete rationale for all requested opinions is required. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.R. Higgins 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.