Citation Nr: 21006714 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 18-28 484 DATE: February 5, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT Affording the Veteran the benefit of the doubt, his tinnitus is related to his active duty service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from February 1965 to November 1966. In December 2020, he testified before the undersigned Veterans Law Judge (VLJ) and a transcript of the hearing is of record. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 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, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2020); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Second, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the evidence in light of the entirety of the record. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2020). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 4 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Tinnitus is a disability capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Tinnitus is an organic disease of the nervous system and is thus considered a chronic disease. 38 C.F.R. § 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). Therefore, the nexus requirement may be satisfied by evidence it manifested itself to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112 (2018); 38 C.F.R. §§ 3.307, 3.309 (2020). The Veteran has a current tinnitus disability. Additionally, he was exposed to acoustic trauma in service. He was under mortar attacks, and he reported going to the firing range without hearing protection. Accordingly, the service connection element at issue is nexus. The Veteran received a VA examination in September 2019. The examiner noted that there was not a full hearing test done at discharge to provide evidence of tinnitus, and as the Veteran worked in a factory post-service, his tinnitus could be related to his post-service employment. The VA examiner determined the Veteran’s tinnitus was not due to his service. Conversely, the Veteran reported that his ears began ringing in service after leaving the firing range. He reported that the ringing had not only continued since service but has worsened. The Board finds that the lay assertions and the VA examiner’s opinion are in relative equipoise. The Veteran provided competent, credible lay assertions that his tinnitus began in service, and has persisted since service. He is competent to make this observation, and here is nothing in the record that renders these lay statements not credible. Affording the Veteran the benefit of the doubt, service connection for tinnitus is granted on a presumptive basis. REASONS FOR REMAND The Veteran received a VA examination for bilateral hearing loss, but the nexus opinion is inadequate. The examiner based his opinion on the lack of a full hearing test at discharge and noted that it was possible a shift occurred. The Board finds this reasoning insufficient and a new nexus opinion is necessary that considers the Veteran’s in service acoustic trauma. The matters are REMANDED for the following action: 1. Return the Veteran’s claims file to the examiner who conducted the September 2019 bilateral hearing loss VA examination so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran’s claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review. A new physical or telehealth examination is only required if deemed necessary by the examiner. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral hearing loss began during active service, is related to an incident of service, including being under mortar attack and going to the firing range without hearing protection, or began within one year after discharge from active service. (Continued on the next page)   The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Then, readjudicate the claim. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Brunot, 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.