Citation Nr: 21008281 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 14-13 302 DATE: February 16, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for left ear hearing loss is remanded. Entitlement to a compensable rating for right ear hearing loss is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, it is as likely as not that his tinnitus is related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1973 to February 1975. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in February 2021. The transcript of the hearing is not yet available. However, this appeal meets the criteria for VA’s one-touch initiative program, and, as such, this decision is being prepared pursuant to such program in order to provide an immediate response to the Veteran after his hearing. A transcript of the hearing will be added to the Veteran’s file later in the normal course of business. Entitlement to service connection for tinnitus. The Veteran seeks service connection for tinnitus, as related to in-service noise exposure experienced while working in a machine shop as well as his duties driving a 5-ton wrecker. Service connection may be granted if there is a disability resulting from personal injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 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, the evidence must show: (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran underwent VA examinations in April 2010 and October 2013, at which time the Veteran reported constant tinnitus for many years. Tinnitus is readily observable by laypersons, and medical expertise is not required to establish its existence. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Therefore, the Veteran’s assertions that he currently has tinnitus constitutes competent evidence of a current disability of tinnitus. Therefore, the first Shedden element of service connection for tinnitus has been established. See Shedden, 381 F.3d at 1167. With respect to an in-service injury or disease, the Veteran testified before the undersigned VLJ that he was exposed to noises in a metal shop consistent with duties as a survey instrument repairman The Veteran also testified that he performed duties driving a 5-ton wrecker which exposed him to loud noises, including coming from the exhaust pipe of the vehicle which was located behind his head while driving. The Veteran is competent to describe his in-service noise exposure. See Washington v. Nicholson, 19 Vet. App. 363, 369 (2005). Therefore, the Board finds that the second Shedden element of an in-service injury, consisting of acoustic trauma, has been met. See Shedden, 381 F.3d at 1167. With respect to the third element of service connection, the Veteran was afforded VA examinations in April 2010, March 2013 and October 2013. However, the none of the VA examiners provided a medical opinion regarding the nature and etiology of the Veteran’s tinnitus. While the March 2013 and October 2013 examiners noted the Veteran has no recollection of onset of tinnitus or tinnitus secondary from hazardous noise exposure. The Veteran also reported that he has had tinnitus for many years at the March 2013 and October 2013 VA examinations. However, the Veteran testified that he noticed ringing in his ears that started in service that has continued since he left service. He further testified that his condition has worsened over the years and that he believes the examiners misunderstood his statement about the onset of his tinnitus. The Board finds that the Veteran’s statements regarding onset and continuity of his tinnitus are competent, credible, and consistent with the circumstances of the Veteran’s military service. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Moreover, as noted, tinnitus is the type of disability lay witnesses are competent to identify. See Charles, 16 Vet. App. at 374. In sum, there are inadequate VA medical opinions and competent, credible lay evidence of continuity of tinnitus symptoms since service. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Therefore, in consideration of all the evidence in this case, and with resolution of any doubt in the Veteran’s favor, the Board finds that service connection for the Veteran’s tinnitus is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinksi, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND Entitlement to service connection for left ear hearing loss is remanded. In November 2010, the Veteran filed a Notice of Disagreement to a claim of entitlement to service connection for left ear hearing loss that was denied in the June 2010 rating decision. Although the RO issued a rating decision granting the Veteran’s claim to service connection for left ear hearing loss in a March 2014 rating decision, the RO did not issue a Statement of the Case (SOC). Therefore, the Board is required to remand the issue for issuance of a SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). Entitlement to a compensable rating for right ear hearing loss is remanded. At the February 2021 hearing before the undersigned VLJ, the Veteran testified that his service-connected right ear hearing loss has worsened since he was last afforded a VA examination in October 2013, more than 7 years ago. Accordingly, a new examination is warranted to assess the current severity of the Veteran’s right ear hearing loss. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993) (VA has a duty to provide an examination when there is evidence that the disability has worsened since the previous examination). The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Issue a SOC on the issue of entitlement to service connection for left ear hearing loss. Notify the Veteran and his representative that the Veteran must submit a timely appeal form if he wants appellate review of the issue. If a timely appeal is received, return the claim to the Board. 3. Schedule the Veteran for a new VA audiological examination to assess the current nature and severity of the Veteran’s service-connected right ear hearing loss. The record and a copy of this Remand must be made available to the examiner for review in conjunction with the examination. Audiometric findings and speech recognition scores using the Maryland CNC Test should be provided, to the extent possible. All clinical manifestations of the service-connected right ear hearing loss and associated functional impairment must be reported in detail. A complete rationale must be provided for any opinion proffered. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. P. Moore, 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.