Citation Nr: 21077530 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 19-14 372 DATE: December 30, 2021 ORDER Service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss, to include as secondary to tinnitus, is remanded. FINDING OF FACT It is at least as likely as not that the Veteran's tinnitus is etiologically related to service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for an award of service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from November 1990 to March 2004. His decorations include the NATO Medal and the Overseas Service Ribbon. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In February 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. Entitlement to service connection for tinnitus The Veteran seeks to establish service connection for tinnitus. He asserts that he has recurrent symptoms of tinnitus that began in service. 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). If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseasesincluding organic diseases of the nervous systemto a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. 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 is not adequately supported, by evidence of continuity of symptomatology. However, 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). Here, there is no dispute that the Veteran has tinnitus. See December 2017 VA hearing loss examination. For VA purposes, tinnitus is recognized as 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. Nor is there any real dispute that the Veteran was exposed to hazardous noise during service. He has reported noise exposure from demolition and explosives training. See February 2021 hearing testimony. His statements in that regard are wholly consistent with the circumstances and conditions of his service. Therefore, the second element of service connection has also been met. The remaining question is whether his disability is related to service, to include his in-service exposure to noise. The Veteran underwent a VA audiology examination in December 2017. The examiner confirmed that the Veteran was suffering from recurrent tinnitus. She opined, however, that it was less likely than not that the Veteran's tinnitus was caused by service. She based her opinion on the fact that there was no evidence of any complaints of tinnitus during service or in the intervening years until the date of the examination. See December 2017 VA audiology examination. Significantly, the Veteran has reported the onset of tinnitus in service, with continuity of symptoms since. See December 2017 VA audiology examination (reporting onset of tinnitus in 1994 during military working on demolitions). The Board finds his statements concerning onset and continuity of symptomatology to be competent and credible. Moreover, inasmuch as tinnitus is a chronic disease capable of lay observation, it can be service connected on the basis of continuity of symptomatology alone, without a medical nexus opinion. See, e.g., Walker, supra. In light of the foregoing, the Board finds that the evidence is, at a minimum, in equipoise regarding the question of whether the Veteran's tinnitus is etiologically related to his service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303. The benefit-of-the-doubt will be applied in his favor. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.310; see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The appeal of this issue is granted. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss, to include as secondary to tinnitus, is remanded. The Veteran asserts that he has bilateral hearing loss that can be attributed to in-service exposure to noise. Alternatively, his February 2021 hearing testimony suggests that his now service-connected tinnitus may be impacting his hearing loss. Exposure to hazardous noise during service has already been conceded. The December 2017 VA audiology examination shows that the Veteran had a hearing loss "disability" at the time of that examination, as VA defines that term. See 38 C.F.R. § 3.385. A medical opinion is needed to address the theory that his hearing loss is secondary to his tinnitus. This matter is REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. After the foregoing development has been completed, arrange to have a clinician with appropriate experience review the record for purposes of providing an opinion with respect to the etiology of the Veteran's bilateral hearing loss. Specifically, after reviewing the record, 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's hearing loss disability in either ear has been (i) caused or (ii) aggravated (i.e., permanently or temporarily worsened beyond natural progression) by his service-connected tinnitus. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner selected to offer the requested opinion. A complete medical rationale for all opinions expressed must be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue remaining on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph T. Leonard, 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.