Citation Nr: 21021586 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 19-08 504 DATE: April 13, 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 reasonable doubt in the Veteran’s favor, tinnitus was incurred as a result of service. CONCLUSION OF LAW The criteria for 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 FINDING AND CONCLUSION The Veteran served on active duty from May 1959 to May 1962. The Veteran testified before the undersigned Veterans Law Judge in February 2021. A transcript of the hearing is of record. 1. Entitlement to service connection for tinnitus Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 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 for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be “competent”. However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). To be “shown in service,” the disease identity must be established and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303 (b). There is no “nexus” requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. 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, 53 (1990). The Veteran contends that he developed tinnitus due to excessive noise exposure from firearms during service. In statements in support of his claim, he asserted that he initially became aware of ringing in his ears during service. The Veteran’s DD Form 214 shows that his military occupational specialty while in active service was that of field artillery, basic. The Veteran is competent to testify to observable symptoms such as ringing in his ears and has done so credibly during the course of this claim, and a VA examiner in December 2018 appeared to have found the Veteran’s account of current tinnitus credible. Layno v. Brown, 6 Vet. App. 465 (1994); Charles v. Principi, 16 Vet. App. 370 (2002) (finding a lay person competent to identify tinnitus). Thus, a current disability has been established. Additionally, the Board finds that the Veteran’s competent lay account of having been exposed to military noise is consistent with his military occupational specialty. Given that the Veteran is competent to report both exposure to military noise and hearing problems thereafter (as these are experiences capable of lay observation, for which no specific expertise is required), and given that the Veteran’s reports of incurring this in-service acoustic trauma are consistent with the circumstances of his service, and have remained consistent over time, the Board concludes that his in-service exposure to acoustic trauma is established. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (a lay person is competent to report symptoms based on personal observation when no special knowledge or training is required). The service treatment records do not document any complaints consistent with tinnitus. On VA examination in December 2018, the examiner noted that onset of tinnitus was unclear as the Veteran was very vague. The Veteran reported a history of military noise exposure, as well occupational noise post military service noise exposure from work in construction and in mines. The examiner noted that the audiological data in his service record was very limited and did not show any auditory injury to his ears during military service. The examiner noted that there was a limited nexus to link his current complaint of tinnitus to an event in the military. The examiner opined that tinnitus was less likely than not caused by auditory injury to the ears because there was no evidence showing an injury to his ears during or shortly after military service. However, the evidence supports a finding that the Veteran did experienced acoustic trauma in service. A veteran is competent to describe observable symptoms such as ringing in the ears. See Jandreau, 492 F.3d at 1377, n. 4; Charles, 16 Vet. App. 370, 374-75 (2002). In subsequent statements and on VA examination, the Veteran testified that he initially noted ringing in his ears during service. The Board is cognizant that, the VA examiner provided evidence against the claim. However, because there is a current diagnosis of tinnitus, statements from the Veteran regarding onset of tinnitus in service associated with in-service noise exposure, and in-service acoustic trauma has been conceded, the Board finds that the competent and credible assertions from the Veteran provides a nexus linking his current tinnitus to his in-service noise exposure, and the balance of positive and negative evidence is in relative equipoise. Resolving all reasonable doubt in the Veteran’s favor, the Board finds that the competent and credible evidence creates a nexus between the Veteran’s current tinnitus and active service. Therefore, service connection for tinnitus is granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-56. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran seeks service connection for hearing loss. The Veteran underwent a VA examination in December 2018. The examiner noted a moderate probability of hazardous noise exposure in service, as well as occupationally after discharge from service. The examiner noted limited audiological data available to review. The examiner stated that there was no direct evidence to link his current hearing loss to service or shortly after military service. Given the lack of audiological findings since service, the examiner reported that he could not render an opinion regarding the etiology of the Veteran’s hearing loss without resorting to speculation. The examiner did not indicate whether there is additional evidence that would enable him to offer an opinion or whether the inability to provide an opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). Moreover, the examiner is not being asked to ascertain the etiology of the Veteran’s hearing loss, but rather whether it is at least as likely as not due to service. While the examiner noted that the service treatment records only contained a whispered voice test upon entrance and nothing at separation, there is in fact a March 1962 separation examination that noted that recorded audiometric findings In any event, the absence of a demonstrated hearing loss disability in service is not fatal to a claim for service connection for hearing loss. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). In fact, the Court of Appeals for Veterans Claims has held that the proper inquiry in hearing loss claims is not whether hearing loss was demonstrated in service, but whether any current hearing disability can be related to in-service noise exposure. See Hensley v. Brown, 5 Vet. App. 155, 164 (1993). Due to the deficiencies in the December 2018 medical opinion, an addendum opinion is necessary. See 38 U.S.C. § 5103A; see also Barr v. Nicholson, 21 Vet. App. 303 (2007). The matters are REMANDED for the following action: Forward the claims file to a VA audiologist. If the audiologist determines that the Veteran should be provided another VA examination, one should be scheduled. The audiologist should review the entire claims file. Ensure that the audiologist is made aware of the need to convert the results of the service audiograms prior to November 1967 to ISO-ANSI standards. The audiologist must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hearing loss disability began during active service, is related to an incident of service, including acoustic trauma from artillery, or began within one year after discharge from active service. In providing the requested opinion, the audiologist must address the Veteran’s lay assertions. The audiologist should note that the Veteran is considered competent to report the events that occurred during service, as well as the symptoms he experiences, including when those symptoms were incurred and how long they have persisted. The Veteran’s lay statements cannot be disregarded solely due to lack of contemporaneous medical evidence. All opinions expressed must be supported by a rationale for why the examiner arrived at the opinion. If the audiologist determines that he/she cannot provide an opinion without resorting to speculation, the audiologist should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Azizi, T. 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.