Citation Nr: 21005661 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 17-28 920 DATE: February 2, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to a disability rating in excess of 20 percent for right lower extremity peripheral neuropathy is remanded. Entitlement to a disability rating in excess of 20 percent for service-connected left lower extremity peripheral neuropathy is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his bilateral hearing loss is related to acoustic trauma incurred during active duty service. 2. Resolving reasonable doubt in the Veteran’s favor, his tinnitus is related to acoustic trauma incurred during active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to 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 FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1969 to September 1971. In September 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. Service Connection 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. In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Certain chronic diseases, such as organic diseases of the nervous system to include sensorineural hearing loss, may be presumed to have been incurred during service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309; see also 67 Fed. Reg. 67792 -67793 (Nov. 7, 2002). Service connection can also be established on the basis of continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating “(1) that a condition was ‘noted’ during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) 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). However, the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a), such as organic diseases of the nervous system to include tinnitus. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA 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). Entitlement to service connection for bilateral hearing loss The Veteran alleges that he has bilateral hearing loss as a result of his active military service. Initially, the Board notes that the Veteran is diagnosed with bilateral hearing loss for VA purposes. See November 2011 and March 2017 VA audiological examinations, June 2016 VA treatment records. A review of the Veteran’s DD Form 214 shows that his military occupational specialty (MOS) during active service was missile crewman. Under these circumstances, the Board finds that the reported exposure to hazardous noise is consistent with the facts and circumstances of the Veteran’s active service. Accordingly, the Board concedes that the Veteran sustained acoustic trauma during active service. On VA examination in November 2011 and March 2017, the Veteran was shown to have bilateral sensorineural hearing loss for VA purposes. However, the examiners opined that it was less likely than not that the Veteran’s hearing loss is due to his active duty service. Both examiners reasoned that the Veteran had hearing within normal limits when he entered and separated from service, although they acknowledged that the Veteran’s separation examination showed a shift from his entrance exam. However, the Board finds that the Veteran has consistently and credibly asserted that he first began experiencing hearing loss during service. The Veteran’s statements regarding onset are consistent with the circumstances of his service and with the record as a whole. Therefore, the Board finds the Veteran’s statements concerning experiencing hearing loss since his in-service noise exposure to be competent and credible evidence of continuity of symptomology for service connection purposes. In light of the above, the Board finds the evidence is at least in equipoise. Resolving the benefit of the doubt in favor of the Veteran, service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107. Entitlement to service connection for tinnitus The Veteran alleges that his current tinnitus is related to his in-service noise exposure. It is not in dispute that he has tinnitus; tinnitus is a disability capable of lay observation (by the person experiencing it). See Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Board finds no reason to question the Veteran’s accounts that he experiences ringing in his ears. Additionally, VA has already conceded in-service exposure to loud noise during service. With evidence of a current disability and a conceded in-service event or injury, the remaining element required to establish service connection is a nexus between the current disability and the in-service event or injury. The Veteran was granted VA examinations for tinnitus in November 2011 and March 2017. Both examiners diagnosed the Veteran with tinnitus which they found to be due to his diagnosed hearing loss. Nevertheless, both examiners opined that it was less likely than not that the Veteran’s tinnitus was etiologically to his active duty service. However, tinnitus may be subject to service connection based upon continuity of symptomatology as an “organic disease of the nervous system” under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 259 (2015). In this regard, the Veteran has stated that his tinnitus symptoms began during service and continued since that time. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, the Board finds the Veteran credible in his reports that tinnitus began in service and has continued ever since. The Veteran’s statements regarding onset are consistent with the circumstances of his service and with the record as a whole and the Board finds him credible in this regard. In light of the above, the Board finds the evidence is at least in equipoise. Under the benefit of the doubt rule, where there exists “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). Resolving all reasonable doubt in the Veteran’s favor, the Board concludes that service connection for tinnitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 20 percent for right lower extremity peripheral neuropathy is remanded. 2. Entitlement to a disability rating in excess of 20 percent for service-connected left lower extremity peripheral neuropathy is remanded. Although the Board regrets the delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims regarding an increased rating for service-connected peripheral neuropathy of the left and right lower extremities. The Veteran’s most recent examination for these conditions was in March 2016. At his hearing before the undersigned in September 2020, the Veteran testified that these conditions have increased in severity. The Board finds a contemporaneous examination is required in order to determine the current severity of his disabilities. Snuffer v. Gober, 10 Vet. App. 400, 403(1997). The matters are REMANDED for the following action: 1. The AOJ should obtain any of the Veteran’s outstanding medical records and associate them with the claims file. If possible, the Veteran himself should submit any pertinent new evidence regarding the condition at issue in order to expedite the claim. 2. After completing the above development, the Veteran should be afforded a VA examination by an appropriate provider for his bilateral lower extremity radiculopathy disabilities. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. 3. The examiner should indicate whether there is complete or incomplete paralysis of the affected nerve(s) and, if so, the examiner should describe the severity of the impairment as mild, moderate, moderately severe, or severe with marked muscular atrophy. 4. After undertaking any other appropriate development deemed necessary, readjudicate the issues on appeal based on the additional evidence of record. If the determinations remain adverse to the Veteran, he must be provided with a supplemental statement of the case. An appropriate period of time must then be allowed for a response before the record is returned to the Board for further review [Remand Directives and formatting] John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Woehlke 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.