Citation Nr: 21012254 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 14-10 694A DATE: March 3, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, his tinnitus was incurred in and is etiologically related to active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. § 1110, 1113, 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active service with the United States Army from December 1971 to December 1973. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veteran Law Judge (VLJ) in May 2018. A transcript of the hearing is associated with the claims file. In September 2018, and September 2020, the Board remanded the claims for further development. In September 2020, the Veteran was afforded a new VA examination. After an October 2020 Supplemental Statement of the Case (SSOC), the claims were returned to the Board. As to these claims the Board also noted that the Veteran filed a Supplemental Claim Application in November 2020. However, the Veteran did not check an Opt-in box on the form or supply some other letter to clarify that his intention was to withdraw his legacy appeal. In January 2021, the Board received an appellate post-remand brief, which was fully considered before these claims were adjudicated. 1. Entitlement to service connection for tinnitus Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). A grant for service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the present disability and the in-service event, injury, or disease. 38 C.F.R. § 1110; 38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including the evidence pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service connection may be granted for specified chronic diseases when shown in service with subsequent manifestations at a later date, however remote, unless clearly attributable to intercurrent causes. 38 C.F.R. §§ 3.303(b), 3.307. Some chronic diseases are subject to presumptive service connection, although, not otherwise established as incurred or aggravated by service if manifest to a compensable degree, within an applicable time limit, provided that the rebuttable presumptive provisions of § 3.307 are also satisfied. See also 38 C.F.R. §§ 3.303, 3.309. Alternatively, to show a chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Tinnitus is considered a chronic disease under 38 C.F.R. § 3.309(a) because it is an organic disorder of the nervous system. Therefore, the chronic disease presumptive provisions summarized above apply to this claim. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, the Veteran seeks entitlement to service connection for tinnitus. He primarily contends that as an infantryman he was exposed to loud noises like small arms fire and artillery. He also stated that no ear protection was provided by the military at that time. He reported that his symptoms of tinnitus started in service. See VA 21-4138 Statement in Support of Claim received November 2011 and July 2012; VA examination dated February 2012. First, at the May 2018 hearing the Veteran competently and credibly reported tinnitus since service. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that a lay person is capable of observing tinnitus). The Veteran’s statements at the hearing are consistent with the Veteran’s other reports in the record. For example, in August 2001, the Veteran reported that he had ringing in his ears since service. See VA 21-4138 received August 2001. The Veteran has also had some treatment for tinnitus consistent with his own reports. See Capri received April 2020. Thus, the first element of service connection has been met. Second, the evidence supports a finding of in-service acoustic trauma based on the Veteran’s verified military occupational specialty (MOS) as a light weapons infantryman. See DD Form 214. Throughout the appeal period, he competently, credibly, and consistently stated that as a result of his MOS duties, he worked around live fire from small arms, artillery fire, and loud trucks. See, e.g., VA 21-4138 received November 2011 and July 2012; Hearing Transcript received May 2018. The Board finds that the Veteran’s statements are credible, as they are consistent with the verified circumstances of his service. 38 U.S.C. § 1154(a). The Board accepts these statements as competent evidence establishing in-service noise exposure, and, as such, the second element of in-service incurrence has been met. The Board finds that the Veteran competently and credibly has reported chronic, continuous tinnitus symptoms since service. The Veteran has had some treatment for tinnitus documented in his records. For example, in April 2007, the Veteran’s private medical provider stated that the Veteran had been seen by the VA in the past for tinnitus, but the Veteran was still having symptoms. See Medical Treatment Record-Non-Government facility received January 2010. Then in November 2017, the Veteran reported he was experiencing louder tinnitus. He stated that he had trouble falling asleep due to the noise. He reported sound therapy was not working. The Veteran was offered tinnitus education classes as treatment. See CAPRI received April 2020. While there is an absence of complaints of or treatment for tinnitus for many years after service separation, the Board has resolved reasonable doubt in his favor and finds that he had continuous symptoms of tinnitus since service separation and meets the requirements of presumptive service connection under 38 C.F.R. § 3.303(b). The Board recognizes the February 2012 and September 2020 VA audiological opinions finding that it was less likely than not that the Veteran’s tinnitus was caused by or a result of noise exposure in the military service. The Board affords these conclusory negative nexus opinions minimal probative value. These opinions both conceded that the Veteran had noise exposure during service but did not consider the Veteran’s statements that he had ringing in his ears since service. However, the Board does not need to reach the weight assignable to any medical opinion because service connection may be granted on a presumptive basis under 38 C.F.R. § 3.303(b) for the “chronic” disease of tinnitus (38 C.F.R. § 3.309(a)) based on a finding of “continuous” symptoms of tinnitus since service rather than on direct service connection. In sum, the weight of the competent, credible, and most probative evidence of record shows a current tinnitus disability, acoustic trauma during active service, and chronic, continuous symptoms since service. Resolving reasonable doubt in the Veteran’s favor, service connection for tinnitus is granted on a presumptive basis. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. While the Board regrets further delay, the claim must be remanded for additional development. When the RO receives evidence prior to certification and transfer of a case to the Board, the RO must furnish the Veteran with a new SSOC reviewing that evidence, unless the additional evidence is duplicative or not relevant to the issue(s) on appeal. See 38 C.F.R. § 19.31(b)(1) and 38 C.F.R. § 19.37(a). There is no legal authority for a Veteran to waive, or the RO (the Agency of Original Jurisdiction) to suspend, this requirement. Id. After the October 2020 SSOC, the Veteran provided a private medical opinion that his bilateral hearing loss was due to his military service. See Medical Treatment Records-Government Facility received November 2020. The Veteran also reported primary care treatment dating back to 1973 that had not been obtained. See VA Form 20-0995, Supplemental Claim Application Received November 2020. The matters are REMANDED for the following action: 1. Review additional evidence added to the record since the October 2020 SSOC as to the issue of entitlement to service connection for hearing loss. Complete any development deemed necessary in light of the new evidence, and readjudicate the claims on appeal. 2. Contact the Veteran and the representative of record in order to obtain outstanding non-VA treatment records regarding the issue on appeal. If any records identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such records. The Veteran should be allowed to provide any relevant records that may be in his possession. 3. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a SSOC and afforded the requisite opportunity to respond before the case is returned to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Associate Counsel, C. Parnell 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.