Citation Nr: 21077254 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 16-60 279 DATE: December 29, 2021 ORDER The part of the October 2021 Board decision that denied service connection for bilateral hearing loss is vacated. The part of the October 2021 Board decision that denied service connection for tinnitus is vacated. The part of the October 2021 Board decision that denied service connection for chronic obstructive pulmonary disease (COPD) is vacated. The part of the October 2021 Board decision that denied service connection for skin cancer is vacated. The part of the October 2021 Board decision that denied service connection for a back disability is vacated. The part of the October 2021 Board decision that denied service connection for a heart disability is vacated. Entitlement to service connection for tinnitus is granted. REMANDED The claim for service connection for bilateral hearing loss is remanded. The claim for service connection for COPD also claimed as pneumonia is remanded. The claim for service connection for skin cancer is remanded. The claim for service connection for a back disability is remanded. The claim for service connection for a heart disability is remanded. FINDINGS OF FACT 1. The October 2021 Board decision was made without review of the transcript from the Veteran's September 2021 Board hearing. 2. Resolving reasonable doubt in the Veteran's favor, tinnitus was incurred as a result of service. CONCLUSIONS OF LAW 1. The part of the October 2021 Board decision that denied service connection for bilateral hearing loss is vacated. 38 U.S.C. § 7104; 38 C.F.R. § 20.1000. 2. The part of the October 2021 Board decision that denied service connection for tinnitus is vacated. 38 U.S.C. § 7104; 38 C.F.R. § 20.1000. 3. The part of the October 2021 Board decision that denied service connection for COPD is vacated. 38 U.S.C. § 7104; 38 C.F.R. § 20.1000. 4. The part of the October 2021 Board decision that denied service connection for skin cancer is vacated. 38 U.S.C. § 7104; 38 C.F.R. § 20.1000. 5. The part of the October 2021 Board decision that denied service connection for a back disability is vacated. 38 U.S.C. § 7104; 38 C.F.R. § 20.1000. 6. The part of the October 2021 Board decision that denied service connection for a heart disability is vacated. 38 U.S.C. § 7104; 38 C.F.R. § 20.1000. 7. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1977 to February 1984. In September 2021, the Veteran testified at a Board hearing before the undersigned Veteran's Law Judge. A transcript of the hearing has been associated with the record. In October 2021 the Board issued a decision that denied the claims for service connection for bilateral hearing loss, tinnitus, COPD, skin cancer, a back disability and a heart disability. Vacatur The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.904. For the reasons discussed below, the portions of the October 2021 Board decision that denied service connection for bilateral hearing loss, tinnitus, COPD, skin cancer, a back disability and a heart disability are vacated. The claims were decided without review of the Veteran's hearing transcript. This error is evidenced by the errant passage in the decision stating the Veteran did not appear for his hearing. The Veteran was present for his hearing. However, the case was marked as indicating that the Veteran did not appear for the hearing. Because the transcript was not associated with the case at the time the case was assigned to the Judge, this fact was not clear, and seem to support the conclusion that the Veteran did not attend the hearing. A transcript of that hearing was made, and subsequent to the October 2021 decision, the transcript of the hearing was associated with the Veteran's claims file. As this transcript was not reviewed prior to the issuance of the October 2021 decision, the Veteran was denied his due process of law by the prior decision. Thus, a vacatur of the October 2021 Board decision is warranted. The Board apologies for the error. Finally, this vacatur does not disturb the portion of the October 2021 Board decision that granted to service connection for degenerative changes of the right shoulder, as that action is favorable to the Veteran and has already been implemented by the AOJ in an October 2021 rating decision. SERVICE CONNECTION 1. Entitlement to service connection for tinnitus Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). To be "shown in service," the disease identity must be established and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303 (b). There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. 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, 53 (1990). The Veteran seeks service connection for tinnitus as due to military noise exposure. He asserts that during the performance of his duties as an armor crewmember he was exposed to excessive noise. The Veteran testified that he initially became aware of ringing in his ears during service. The Veteran is competent to testify to observable symptoms such as ringing in his ears and has done so credibly during the course of this claim (and the hearing), and a VA examiner in June 2014 appeared to have found the Veteran's account of current tinnitus credible. Layno v. Brown, 6 Vet. App. 465 (1994); Charles v. Principi, 16 Vet. App. 370 (2002) (finding a lay person competent to identify tinnitus). Thus, a current disability has been established. The Veteran's personnel form DD-214, documents his military occupational specialty was armor crewmember and the RO conceded his exposure to hazardous noise in service. The service treatment records contain no complaints, history or findings consistent with tinnitus. On VA examination in June 2014, the Veteran reported onset of the condition 20 years after having been discharged from service. Following a review of the claims file and an examination of the veteran, the examiner indicated that while the medical literature allowed for the possibility of a delay in onset of tinnitus due to noise exposure, as the interval between a noise exposure and the onset of tinnitus lengthens, the possibility that tinnitus would be triggered by other factors increased. Given the Veteran's reported onset of tinnitus many years after leaving military service, it was less likely than not caused by or a result of military service. The examiner further opined that the Veteran's tinnitus was likely a symptom associated with hearing loss, as tinnitus is known to be a symptom associated with hearing loss. A veteran is competent to describe observable symptoms such as ringing in the ears. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Charles, 16 Vet. App. 370, 374-75 (2002). The Veteran testified that he initially noted ringing in his ears during service. The Board is cognizant that, the VA examiner provided evidence against the claim. However, because there is a current diagnosis of tinnitus, statements from the Veteran regarding onset of tinnitus in service associated with in-service noise exposure, and in-service acoustic trauma has been conceded, the Board finds that the competent and credible assertions from the Veteran provides a nexus linking his current tinnitus to his in-service noise exposure, and the balance of positive and negative evidence is in relative equipoise. Resolving all reasonable doubt in the Veteran's favor, the Board finds that the competent and credible evidence creates a nexus between the Veteran's current tinnitus and active service. Therefore, service connection for tinnitus is granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-56. REASONS FOR REMAND 1. The claim for service connection for bilateral hearing loss is remanded. 2. The claim for service connection for COPD also claimed as pneumonia is remanded. 3. The claim for service connection for skin cancer is remanded. 4. The claim for service connection for a back disability is remanded. 5. The claim for service connection for a heart disability is remanded. At the Board hearing, the Veteran testified that he had been awarded Social Security Administration (SSA) disability benefits in connection the disabilities for which he seeks service connection. The Veteran submitted correspondence in September 2021 indicating he had been determined eligible for SSA disability benefits since December 2012 and submitted a copy of his award letter. As the Veteran submitted his SSA benefits award letter as evidence in support of his appeal for these disabilities now being claimed, it stands to reason his SSA records are relevant (or may be) to these disabilities, thus on remand these records should be obtained. Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). The matters are REMANDED for the following action: 1. Ask the Veteran to identify all private providers of evaluations or treatment he received for bilateral hearing loss, tinnitus, COPD, skin cancer, a back disability and a heart disability (records of which are not already in the record), and to submit authorizations for VA to secure clinical records from all private providers identified. If he does so, obtain those records (if any). The Veteran should be informed that in the alternative he may obtain and submit the records himself. 2. Obtain outstanding VA treatment records (if any). 3. Obtain the Veteran's federal records from Social Security Administration. Document all requests for information as well as all responses in the claims file. If possible, to expedite the case, the Veteran or his representative should obtain these records themselves. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.