Citation Nr: 21024547 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 16-26 916 DATE: April 23, 2021 ORDER Entitlement to service connection for bilateral tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to an initial rating in excess of 10 percent for service-connected posttraumatic stress disorder (“PTSD”) is remanded. Entitlement to an initial rating in excess of 30 percent for service-connected ischemic heart disease (“heart disability”) is remanded. FINDING OF FACT The competent and credible evidence of record is at least in equipoise that the Veteran’s bilateral tinnitus is shown to be causally or etiologically related to an in-service event, injury, or disease. CONCLUSION OF LAW The criteria for service connection for bilateral tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1131, 1112, 1113, 1116, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from August 1965 to June 1967. The Veteran died in May 2018. The appellant is his surviving spouse and has been properly substituted in this case. See October 2018 Correspondence. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). A hearing was scheduled for April 2019. In October 2020, the Board determined that the appellant failed to report for her scheduled hearing without good cause. As such, the Board found that the appellant’s hearing request was deemed to have been withdrawn. By way of background, in May 2018 the Veteran died. As such, in September 2018, the Board dismissed the issues on appeal as the Board no longer had jurisdiction to adjudicate the claim. Since then, the Veteran’s surviving spouse has been properly substituted into the case within one year of the Veteran’s death and is recognized as a valid substitute appellant. In October 2020, the Board remanded the issues on appeal and directed that a supplemental statement of case be issued. Although the RO issued a SSOC in October 2020, this notice was never received by the appellant and was returned as undeliverable. As such, the Board finds that additional development is needed before the appellant’s claim can be decided. However, the Board will adjudicate the appellant’s claim for entitlement to service connection for tinnitus as a full grant of benefit sought on appeal would not prejudice the appellant. Service Connection Generally, to establish service connection a Veteran 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include bilateral tinnitus, that manifested to a compensable degree within a certain time after service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309(a). Tinnitus is considered an organic disease of the nervous system, which is listed as a “chronic disease” under 38 C.F.R. § 3.309(a). See Fountain v. McDonald, 27 Vet. App. 258 (2015) (tinnitus is an “organic disease of the nervous system” subject to presumptive service connection under 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 where there is evidence of acoustic trauma and nerve damage). As such, the presumptive provisions of 38 C.F.R. § 3.303(b) for “chronic” in-service symptoms and “continuous” post-service symptoms apply to the claim for tinnitus. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 1. Entitlement to service connection for bilateral tinnitus is granted. After affording the Veteran the benefit of reasonable doubt, the Board concludes that there is persuasive evidence that his tinnitus began during service and has been present since that time. The Veteran reported that he had tinnitus, which he was competent to report. Jandreau, 492 F.3d at 1377; Charles v. Principi, 16 Vet. App. 370, 374 (2002). As such, the first element of service connection is met. A review of the service treatment records shows the Veteran had normal drums and ears with no complaints, treatment, or diagnosis of tinnitus in the June 1964 examination, August 1965 examination, and June 1967 separation examination. See April 2015 STR – Medical records. However, as the Veteran received a combat infantryman badge and reported that he was exposed to excessive noise from howitzers, explosions and other munitions fire while in service, the Board finds, in the light most favorable to the Veteran, that the second element of service connection has been met. See May 2016 CAPRI and April 2015 Certificate of Release or Discharge from Active Duty. The Veteran was afforded a VA examination in June 2015 wherein the Veteran reported that he did not have recurrent tinnitus. The examiner did not opine as to the etiology of the Veteran’s tinnitus. Despite the Veteran’s report of non-recurrent tinnitus in the July 2015 VA examination, the records show that the Veteran sought audiological evaluation for his tinnitus in April 2015. In an April 2015 private audiological evaluation, the examiner opined that it is more than likely that the Veteran’s tinnitus was due to his military experience serving in the Vietnam War. See June 2015 Medical Treatment Record – Non-Government Facility. The examiner did not explain or provide rationale for his medical opinion. Then, in a September 2015 VA treatment record, a physician opined that the Veteran’s tinnitus began during or shortly after his Vietnam tour. The Veteran reported that he was exposed to excessive noise from Howitzers, explosions, and other munitions fire. See May 2016 CAPRI. The Veteran also stated that he began to experience ringing in his ears within 30 days of arrival and that there was no hearing protection. The physician explained that military personnel have often been exposed to excessive noise such as machine guns, mortars, bombs, artillery, airplane engines and shipboard machinery to name a few, usually without the benefit of hearing protection. He further explained that many of those Veterans were exposed to extremely loud environmental and/or combat related noises while they were on active duty. This exposure can cause acoustic trauma, which might cause hearing loss or may initially manifest as tinnitus. This acoustic trauma can also eventually cause hearing loss, which may not become symptomatic for many years. The physician determined that the Veteran had significant noise exposure during his service and as such the Veteran has a hearing deficit and ringing in the ears (tinnitus) which began during or shortly after his Vietnam tour. The Board concludes that the Veteran has credibly reported that he began to experience ringing in his ears during service that has continued to the present time. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (“ringing in the ears is capable of lay observation”). Tinnitus is defined as “a noise in the ear, such as ringing, buzzing, roaring, or clicking.” See Dorland’s Illustrated Medical Dictionary 1714 (28th ed. 1994). Given the nature of tinnitus, it is a rare type of disability for which the Veteran is competent to establish the onset, continuity, and current presence of tinnitus on the basis of his own lay assertions. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify as to ringing in the ears (tinnitus)). Thus, the Veteran is competent to state that he began experiencing tinnitus during service, and that it has continued to the present. The Board finds that the competent and credible evidence of record is at least in equipoise that the Veteran’s bilateral tinnitus occurred in service. As such, in light of the facts noted above, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that the criteria for service connection for bilateral tinnitus are met. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to an initial rating in excess of 10 percent for service-connected PTSD is remanded. 3. Entitlement to an initial rating in excess of 30 percent for service-connected heart disability is remanded. A review of the records shows that notices and October 2020 SSOC were sent to the appellant but were subsequently returned as undeliverable. As noted in an April 2021 Board correspondence, the Board discovered the Appellant’s updated address and provided a copy of the October 2020 Board remand to the new address. As such, on remand, the RO is instructed to resend all pertinent notification and the SSOC to the updated address as listed in the April 2021 Board correspondence. Notably, the October 2020 SSOC reflects that the deceased Veteran’s representative was inadvertently provided a carbon copy, however, the Appellant’s representative was not provided a copy of the October 2020 SSOC. Therefore, a copy should also be provided to the Appellant’s representative. Additionally, the Board finds that the medical records associated with the file stops in September 2015. On remand, the RO should obtain updated VA treatment records since September 2015. The matters are REMANDED for the following action: (Continued on the next page)   1. Obtain updated VA treatment records since September 2015. 2. Resend the October 2020 SSOC and all pertinent notifications to the updated address as listed in the April 2021 Board correspondence, as well as the Veteran’s representative, the Pennsylvania Department of Military and Veterans Affairs. Sarah Campbell Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Noh, 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.