Citation Nr: 21022057 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 17-32 684 DATE: April 14, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT The Veteran’s tinnitus is reasonably shown to have been manifested to a compensable degree within a year following his separation from service and to have persisted since. CONCLUSION OF LAW Service connection for tinnitus is warranted. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a), 4.85, Code 6260. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from January 1968 to April 1969. [The record shows he sought re-enlistment in the Army reserves in 1973. It does not show any specifically alleged or verified periods of active duty in the Reserves.] The matters are before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 Department of Veterans’ Affairs (VA) rating decision. In December 2020, a virtual Board hearing in these matters were held before the undersigned. The Veteran requested, and was granted, a 90-day abeyance period for the submission of additional evidence. Additional evidence (two lay statements and a private treatment record) was received. Service connection for tinnitus Service connection may be granted for a disability resulting from a disease or injury incurred or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To substantiate a claim of service connection, there must be evidence of: (1) a current claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the disease or injury in service and the current disability. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic diseases, including tinnitus (as an organic disease of the nervous system), may be presumed to be service connected if manifested to a compensable degree within a specified period following separation from service (one year for organic disease of the nervous system). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(a). For diseases listed in 38 C.F.R. § 3.309(a), service connection may also be established by showing continuity of symptomatology. 38 C.F.R. § 3.303(b). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The Veteran contends that his tinnitus resulted from exposure to noise trauma during service in his military occupational specialty (MOS). (He testified at the December 2020 Board hearing that he served in a mechanized (armored vehicle) unit). The service record evidence of record pertaining to his MOS consists of only his DD-214 [for the period of service noted above] which lists his MOS as duty soldier. He testified that in Reserve service he was assigned to an armored vehicle unit. The Board finds it reasonable to assume (based on his sworn testimony) that he was likely exposed to some hazardous noise in his service as a duty soldier. The Veteran’s service treatment records (STRs) are silent for complaints, treatment, or diagnosis, of tinnitus. A report of examination for re-enlistment in the Reserves in September 1973 also contains no mention of ear complaints/tinnitus. On November 2014 Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ), the Veteran reported he has recurrent tinnitus which began in 1969 (causing difficulty sleeping and it is annoying/bothersome). He reported that he worked with weapons, heavy equipment, and diesel engines in the military, and that his postservice occupation was semi-truck-driver. The audiologist opined that since the Veteran did not serve in combat veteran and the re-enlistment examination in 1973 found normal hearing thresholds (and no significant changes in hearing thresholds between the enlistment examination for his verified service and either his separation examination or the 1973 re-enlistment examination), it is less likely than not that tinnitus is caused by or a result of military noise exposure. The provider did not address the Veteran’s reports of first noting tinnitus in service or shortly thereafter (in 1969-which would be within a year after separation). At the December 2020 Board hearing, the Veteran testified that he served in armor and that he has had severe tinnitus since separation from service. In a February 2021 lay statement, the Veteran’s sister related that he complained about ringing in his ears after separation from service in the 1970s and that the ringing has worsened over the years since. Tinnitus warrants a 10 percent rating when it is shown to be recurrent. 38 C.F.R. § 4.87, Code 6260. As tinnitus is a disability that is diagnosed based on self-reports (by the person experiencing it) and generally is incapable of objective verification, the Veteran is competent to establish by his own accounts that he has tinnitus (and also that he has had it continuously since service). That the Veteran now has tinnitus is not in dispute. The Board has no reason to question the Veteran’s report that he now has ringing in the ears. No medical provider has found he does not have tinnitus (and VA adjudicators have acknowledged that he has tinnitus). The Board also has found that the Veteran was exposed to some noise in service. What remains necessary to substantiate this claim is that the tinnitus is etiologically related to the Veteran’s service. See Shedden, 381 F.3d at 1167. Against the Veteran’s claim is the November 2014 essentially finding that the Veteran’s tinnitus is unrelated to noise trauma in service since he did not serve in combat, examinations in service found normal hearing thresholds and do not show a significant puretone threshold shift in service, and the examination reports contain no mention of tinnitus. The opinion includes rationale, cites to factual data, is by a provider considered competent to offer it, and merits some probative value. However, the opinion is incomplete (does not address each basis by which service connection for tinnitus may be established, and does not discuss the Veteran’s report that he noted recurrent tinnitus in the first postservice year); therefore, the opinion cannot be found to be dispositive. As explained below, an addendum clarifying opinion is not necessary, as substantiation of this claim does not require it. Because tinnitus (as an organic disease of the nervous system) is a chronic disease listed in 38 C.F.R. § 3.309(a), one way of substantiating a claim of service connection for it is by showing manifestation of it to a compensable degree within a year following separation from service or by continuity. Considering the state of the evidence in this matter, what the Board must determine is the credibility of the Veteran’s own (and his sister’s corroborating statement) accounts and his sworn testimony that he first note his recurrent tinnitus within a year following his separation from service. The Board finds no reason to challenge the credibility of those accounts and testimony. While his reports of tinnitus are not recorded in medical records prior to November 2014 (when he has indicated the ringing began in 1969), it is entirely plausible that he may have had tinnitus all along since 1969, but did not seek treatment until it became annoying to a greater degree (and he became aware that it was not normal, but may be a compensable disability). Considering the foregoing, and resolving any remaining reasonable doubt in the Veteran’s favor (as required under 38 C.F.R. § 3.102), the Board finds that the Veteran’s tinnitus is shown to have become manifest to a compensable degree within a year following his separation from service. The requirements for establishing service connection are met. Service connection for tinnitus is warranted. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss The Board finds that further development of the record is necessary to comply with VA’s duty to assist the Veteran in the development of facts pertinent to his claim of service connection for bilateral hearing loss. On November 2014 DBQ, the examiner provided a negative nexus (to service) opinion. She opined that since the Veteran’s service induction, separation, and re-enlistment examinations all found normal hearing (and no significant changes in puretone thresholds during the period from enlistment to the re-enlistment examination, (and observing that he did not serve in combat or in an MOS associated with exposure to hazardous noise, it is less likely than not that his hearing loss is caused by or a result of military noise exposure. In the January 2021 private medical treatment record submitted, the provider did not provide an opinion regarding a nexus between the Veteran’s hearing loss and his service. It was noted that the hearing loss had progressively worsened (recently) and that the Veteran had exposure to (drag racing) recreational noise (. The Veteran has asserted, in essence, that he was exposed to a greater degree of noise trauma in service than has been acknowledged, stating he was exposed to noise form rifle range training during basic training and from his assignment to an Armored Vehicle unit. At the December 2020 Board hearing, the Veteran testified that he was exposed to noise while served in armor. The record does not include any documentation of his service in armor. If he had any significant service in an armored unit, it could be conceded that he was exposed to more noise trauma in service than has been acknowledged (which would require a medical opinion that encompasses such acknowledgement). The matter is REMANDED for the following: 1. Secure for the record the Veteran’s complete service treatment records and service personnel records (specifically any showing he served in an armor unit). Also verify whether he had any active duty in the Army reserve (as suggested by records that include a re-enlistment examination report and his testimony of serving in an armored unit). He must assist in this matter by identifying all his alleged periods of active duty and the units in which he served. If any records [suggested created] cannot be located because they have been irretrievably lost or destroyed (or did not exist), it should be so certified; the scope of the search for the records should be described; and the appellant should be so notified. He should be asked to provide copies of any pertinent service treatment or service personnel records (not already in his claims file) he may have in his possession. 2. After the development requested above is completed, arrange for the Veteran’s record to be forwarded to an appropriate clinician (audiologist or otologist) for review and an advisory medical opinion regarding the likely etiology of his bilateral hearing loss. The examiner should note in particular any evidence added to the record pursuant to the above development indicating that the Veteran was subjected to a greater degree of noise exposure during service (or showing a diagnosis of a hearing loss disability prior to 2014. The opinion should include responses to the following: Identify the likely etiology of the Veteran’s bilateral hearing loss disability. Specifically, is it at least as likely as not (a 50% or better probability) that it is etiologically related to his active duty service, to include as due to exposure to noise therein (rather than to nonservice-related possible etiological factors such as exposure to postervice occupational noise as a truck driver, exposure to (drag racing) recreational noise (both noted clinically, or presbycusis? If the hearing loss is determined to be unrelated to exposure to noise in service, the alternate (considered to be more likely) nonservice-related etiology must be identified, with explanation why that is so. All opinions must include rationale that cites to supporting factual data in the record and medical principles. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Chu, 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.