Citation Nr: 21025179 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 20-02 715 DATE: April 27, 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, his tinnitus began during active service. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the United States Army from December 1965 to December 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from the April 2011 and June 2018 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Board reopened and remanded the claims for further development. See 38C.F.R. §3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). 1. Entitlement to service connection for tinnitus The Veteran seeks to establish entitlement to service connection for tinnitus. Service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be presumed, for certain chronic diseases, which develop to a compensable degree within a prescribed period after discharge from service, although there is no evidence of such disease during the period of service. This presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1110, 1112, 1113, 1137; 38 C.F.R. § 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. The continuity and chronicity provisions of 38 C.F.R. § 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. § 3.309(a) as “a substitute way of showing in-service incurrence and medical nexus.”) In the presence of acoustic trauma, tinnitus is deemed an organic disease of the nervous system for purposes of 38 C.F.R. § 3.309(a). Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). The Board observes that tinnitus is a medical term referring to symptoms of noise in the ears, such as ringing, buzzing, roaring or clicking. Dorland’s Illustrated Medical Dictionary 1714 (33rd ed. 2019). In adopting the current rating criteria for tinnitus under 38 C.F.R. § 4.87, Diagnostic Code (DC) 6260, VA described tinnitus as follows: Tinnitus is classified either as subjective tinnitus (over 95% of cases) or objective tinnitus. In subjective or “true” tinnitus, the sound is audible only to the patient. In the much rarer objective tinnitus (sometimes called extrinsic tinnitus or “pseudo-tinnitus”), the sound is audible to other people, either simply by listening or with a stethoscope. 67 Fed. Reg. 59033-01 (Sept. 19, 2002). Thus, tinnitus is a rare type of disability that, in the vast majority of cases, may be established on the basis of lay evidence alone. See Charles v. Principi, 16 Vet. App. 370 (2002). In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Veteran served on active duty from December 1965 to December 1967. The Veteran’s service treatment records are silent for any complaints, treatment, or diagnosis of tinnitus. However, the Veteran is competent and credible to report his tinnitus symptoms. In August 2010, the Veteran filed a service connection claim for tinnitus noting onset in December 1967. Additionally, VA treatment records indicate complaints of tinnitus in August 2010, where the Veteran reported having tinnitus for at least 40 years. The Veteran’s treatment records continue to note a current diagnosis of subjective tinnitus. In connection with this claim, the Veteran was afforded a VA examination in December 2010. VA examiner conducted an in-person examination and reviewed the Veteran’s claims file. During the examination, the Veteran reported service-related noise exposure from helicopters, gun fire, and machine guns. Also, the Veteran denied recreational noise exposure. And reported that his tinnitus had its onset an uncertain amount of time ago and perhaps in military service. The examiner opined that the Veteran’s tinnitus is not a result of noise exposure during his military service. The examiner reasoned that additional noise exposure, aging, and health conditions since military separation are likely contributing factors in the Veteran’s tinnitus. However, the examiner noted significant noise exposure during the Veteran’s military service. In support of his claim, the Veteran submitted a statement in January 2020. The Veteran stated that he has had tinnitus since his time in the Army. Further, he noted that the bulk of his service was spent in close proximity of jet engines without ear protection. Following the December 2020 Board remand, the Veteran was provided a second VA examination in February 2021. During the examination, the Veteran reported the onset of his tinnitus as 2 to 9 years after separation from service. The examiner opined that the Veteran’s tinnitus is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of this conclusion, the examiner noted there is no report of tinnitus in service treatment records, at separation, or in the medical records until the time of the claim. And the current literature does not support late onset noise-induced tinnitus. Here, the Board has been presented with conflicting statements in the record as to whether he has had tinnitus since his period of active service. At the time of the August 2010 claim, and again in January 2020, he reported that his tinnitus symptoms began during active service, but later he reported onset 2 to 9 years after service. As discussed above, the vast majority of diagnosable tinnitus cases is based solely on the patient’s perception of ear ringing, buzzing, or clicking sounds. The record is not clear why the Veteran reported his tinnitus began during service but later stated he began experiencing symptoms 2 to 9 years after active service - the potential reasons could be misunderstanding of the question, the Veteran’s recollections are not accurate, or that the Veteran is not being truthful. The Board finds no direct evidence that the Veteran has provided untrue testimony. Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran has manifested tinnitus since his separation from active service in 1967. In closing, the Veteran is currently diagnosed with tinnitus, he experienced noise exposer from helicopters, gun fire, machine guns, and jet engines during military service, and he claimed his symptoms began during service because of this noise exposure. As tinnitus in the presence of acoustic trauma is deemed a chronic disease under 38 C.F.R. § 3.303(b), his testimony alone satisfies the service connection criteria and a medical opinion as to etiology is not necessary. Walker, 708 F.3d 1331 (Fed. Cir. 2013); Fountain, 27 Vet. App. at 271-72. Accordingly, resolving reasonable doubt in his favor, service connection for tinnitus is granted. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only an ‘approximate balance of positive and negative evidence’..., the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding... benefits.”) REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The February 2021 VA examination references a December 2018 audiologist opinion provided by Dr. B related to the Veteran’s hearing. That opinion does not appear to be part of the claims file although cited by a VA examiner. Furthermore, the available records contain references to additional audiological evaluations and treatment records stored separately in the Vista Imaging System. Thus, on remand, the AOJ should attempt to obtain the December 2018 opinion and associate it with the claims file. And obtain all audiological records stored separately and associate them with the claims file. The matters are REMANDED for the following action: 1. Associate with the claims folder updated VA treatment records. Additionally, associate with the record all records scanned into VistA for the entire appeal period, i.e. March 2013 ENT Non-VA Care Consult Result Note; and December 2010 Primary Care Clinic Note referencing ENT test results in vista imaging display. 2. The AOJ shall locate and associate the December 2018 audiologist opinion provided by Dr. B referenced in the February 2021 VA examination. (continued on the next page) 3. Provide the Veteran with another opportunity to identify any outstanding private treatment records relevant to his claim, i.e. the discussed treatment records from the University of Nebraska Medical Center ENT Department. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Patrick C. Brady, Attorney Advisor 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.