Citation Nr: 21026303 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 16-07 661 DATE: April 30, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. FINDING OF FACT Tinnitus was manifest during service. CONCLUSION OF LAW Tinnitus was incurred during wartime service. 38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1967 to October 1970. A hearing was held before the undersigned veterans law judge in September 2018 in San Antonio, Texas. The transcript is of record. During the hearing, the VLJ clarified the issues, asked if there was outstanding evidence and held the file open for the submission of evidence. Such actions comply with 38 C.F.R. § 3.103. Service Connection To establish service connection a Veteran must generally 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.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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). Tinnitus is considered an organic disease of the nervous system, which are identified as “chronic diseases” under 38 U.S.C. § 1101 and 38 C.F.R. § 3.309 (a). “For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.” 38 C.F.R. § 3.303 (b). 1. Entitlement to service connection for tinnitus The Veteran asserts that his tinnitus began after a funeral detail in service and has been persistent since. At his VA examinations in December 2015 and December 2019, the examiners opined that tinnitus was less likely than not due to service, as hearing loss was not incurred in service and the service treatment records do not contain complaints of tinnitus. However, the examiners did not address the Veteran’s reports that his tinnitus began in during service, well before his hearing loss first manifested. Therefore, the opinions are of little probative value. Tinnitus is an organic disease of the nervous system and is therefore considered a chronic disease for VA purposes. Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). The Veteran has reported that he currently has tinnitus, which he is competent to identify. Further, the Veteran has consistently and credibly reported that his tinnitus both began in service and has been persistent since. There is no evidence of record that the Veteran’s statements to this effect are not credible, and he is competent to report both the onset date of a wholly lay-observable disability as well as its persistency since that date. As such, these statements are entitled to significant probative weight. Service connection is granted. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral hearing loss disability is remanded. This matter was remanded in June 2019 for a new medical opinion. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the issue of service connection for bilateral hearing loss disability. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). At the December 2019 examination, the examiner again provided an opinion that consisted merely of restatement of fact without supporting rationale. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s bilateral hearing loss disability is at least as likely as not related to his service. Any opinion provided must be supported with a well-reasoned rationale. Mere restatement of the facts is not sufficient. The examiner must explain the relationship between the cited facts and nexus opinion rendered. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. N. RIPPEL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Creegan 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.