Citation Nr: 21028172 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 17-39 303 \DATE: May 10, 2021 ORDER Service connection for tinnitus is granted. REMANDED Service connection for hypertension is remanded. FINDING OF FACT Affording the Veteran the benefit of the doubt, he has had intermittent tinnitus ever since service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 101, 1101, 1110, 1112, 1113, 1131, 1137, 1154, 5107; 38 C.F.R. §§ 3.2, 3.102, 3.303, 3.307, 3.309, 4.87 Diagnostic Code 6260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1981 to October 1984, in May 2000, in November 2000, from April 2001 to May 2001, from June 2002 to September 2002, from February 2004 to March 2004, and from September 2007 to October 2007. He also served on various periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter is on appeal to the Board of Veterans' Appeals (Board) from February 2016 and March 2016 rating decisions. In February 2021, the Veteran testified regarding it at a hearing before the undersigned Veterans Law Judge of the Board. Service Connection Direct service connection is established when there is a nexus between a current disability and an injury or disease incurred or aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). It also is established for a disease diagnosed after separation if incurred during service. 38 C.F.R. § 3.303(d). For a veteran with qualifying service, service connection is presumed for chronic diseases absent an intercurrent cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303(b), 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). It must have been chronic during service, manifested to a compensable degree within a specified period after service, or been noted during service or this specified period after service with continuity of symptomatology ever since. Id. The claimant is afforded the benefit of the doubt when there is an approximate balance of evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The applicable standard accordingly is at least as likely as not. Only the most relevant evidence must be discussed. Gonzales v. West, 218 F.3d 1378, 1380-1381 (Fed. Cir. 2000). Tinnitus The Veteran contends he has tinnitus which is related to his loud noise exposure during service. He is a lay person because there is no indication that he has any sort of medical training. Lay persons are competent to diagnose a disability, provided that it is simple and readily observable. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007). Tinnitus is a simple and readily observable disability. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Indeed, it is a usually subjective noise in the ears. Dorland's Illustrated Medical Dictionary 1956 (31st ed. 2007). During the pendency of his claim, the Veteran has reported ringing in his ears. These reports, in addition to being competent, are credible because no reason is found to doubt them. Tinnitus finally implicitly was diagnosed based on them at a January 2016 VA medical examination. In sum, it is undisputed that the Veteran has tinnitus as a current disability. It also is undisputed that he had a relevant injury during service. He competently has reported loud noise exposure working as a boatswain's mate on or near the flight deck without proper hearing protection during his first period of service. He also has reported loud noise exposure, despite often having proper hearing protection, working near jets and fuel tanks/trucks as a refueler in his subsequent periods of service. These reports are credible because they are consistent with the other evidence. The Veteran's service personnel records indeed reflect that he served aboard the USS Carl Vinson and the USS Coral Sea, both aircraft carriers, during his first period of service. This inevitably means he was on or near the flight deck at least sometimes. 38 U.S.C. § 1154(a). For subsequent periods of service, his DD-214s show that his specialty was fuels. His service treatment records further denote his routine exposure to loud noise from the flight line and forklifts. The only remaining question for direct service connection is nexus. A medical opinion was rendered in this regard following the January 2016 VA medical examination. The conclusion was that the Veteran's tinnitus is less likely than not related to his exposure to loud noise during service. By way of explanation, it was noted that the Veteran did not suffer acoustic trauma during service. This was based on his hearing being normal at his separation from service as well as on the fact that there was no significant difference in his hearing between evaluations while he served. It additionally was noted that there is no documentation of the Veteran ever complaining of tinnitus. For many reasons, the aforementioned opinion has no probative value. It first seemingly sets forth a requirement for acoustic trauma, or something more than loud noise exposure, during service. Yet there is no such requirement to grant service connection. Without any discussion in the opinion of how tinnitus is related to hearing, why normal hearing at separation from service is important second is unclear. Also unclear is which of the Veteran's seven separations from service is being referenced. This raises the third reason the opinion lacks probative value, that the facts underlying it are not entirely accurate. The Veteran's hearing, even if normal at separation, was not always normal when evaluated during service. Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (normal hearing is from 0 to 20 decibels). He also was made aware of a significant change in his hearing in January 2008, just three months after his final separation. While it is true that his service and post-service treatment records do not include any complaints of tinnitus, he has reported intermittent tinnitus ever since his first period of service. These reports count as tinnitus complaints, especially given its subjective nature, and they now must be discussed. Miller v Wilkie, 32 Vet. App. 249, 257-260 (2020). There are no medical opinions concerning nexus other than the January 2016 VA medical opinion. Although the Veteran clearly believes that there is a nexus between his tinnitus and his loud noise exposure during service, he is not competent to render a nexus opinion himself. Doing so indeed is medically complex, requiring knowledge of the auditory system and how it is impacted by various factors. Nothing conveys or even suggests that the Veteran has received any training which may have imparted this knowledge or ability. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); Kahana v. Shinseki, 24. Vet. App. 428, 435 (2011). Yet he is competent to report his symptoms because he personally experienced them. Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). Contrary to his assertion that he was not asked about tinnitus at the January 2016 VA medical examination, his response to the questions posed then was that it was intermittent and that he has noticed it for a few years. In several identical statements, the first dated shortly after this examination, the Veteran indicated that his tinnitus had been intermittent ever since service. He reiterated this in his hearing testimony. He largely has reported continuity of his tinnitus symptomatology since service, in other words. His one report to the contrary made at the examination may have been a product of miscommunication or misunderstanding, especially given his assertion that he was not even asked about tinnitus at that time. There is insufficient reason to doubt the credibility of the Veteran's reports. His service treatment records show that he repeatedly denied ear, nose, or throat trouble, the first time at his September 1984 separation examination and the last at a May 1998 examination. However, what constitutes such trouble was never specified. Whether he considered it to include tinnitus accordingly is unknown. Similarly, that service treatment records show the Veteran denied ever having had prolonged ringing in his ears in June 1983 and ever having ringing in his ears in May 1994 does not detract from his credibility. His tinnitus reportedly is intermittent, denying it being prolonged would have been accurate at any point. Over one year of his first period of service further took place after June 1983. June 1983 and May 1994 additionally both were before all six of his subsequent periods of service. His tinnitus thus could have started during service but after these denials of it. Finally, service treatment records document that the Veteran denied having tinnitus during or immediately after various deployments in March 2004, December 2004, September 2007, and February 2008. This once again can be explained by the reportedly intermittent nature of his tinnitus. The Veteran lastly has explained that he did not seek treatment for tinnitus during service because he did not realize it would not go away and did not want to be "that guy that went to clinic." There is no indication that the Veteran sought treatment for tinnitus in between his periods of service or post-service. While this lack of treatment certainly does not advance his claim, that he may once again have had some reason for not seeking treatment is recognized. He is under no obligation to provide an explanation in this regard. Continuity of symptomatology and not continuity of treatment, in any event, is the requirement for granting presumptive service connection. Savage v. Gober, 10 Vet. App. 488, 495-497 (1997). Affording the Veteran the benefit of what doubt there exists regarding the aforementioned, this continuity of symptomatology requirement has been met. He, in sum, has had intermittent tinnitus ever since service. There is no need to specify ever since which of his seven periods of service, as loud noise exposure occurred during them all. Regarding the other requirements for presumptive service connection, it is undisputed that the Veteran had qualifying service. He indeed served for well over 90 days, all after December 31, 1946, and some during the Persian Gulf War. 38 U.S.C. §§ 101(33), 1112(a); 38 C.F.R. §§ 3.2(i), 3.307(a)(1). Tinnitus, as an organic disease of the nervous system, next qualifies as a chronic disease. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 272 (2015). The presumptive period for it is one year after service. 38 U.S.C. § 1112(a)(1); 38 C.F.R. § 3.307(a)(3). Finally, simply having tinnitus merits compensation at the lowest rate of 10 percent. 38 C.F.R. § 4.87 Diagnostic Code 6260. That the Veteran has had continuity of symptomatology ever since service accordingly means there also was manifestation to a compensable degree within the aforementioned presumptive period. Presumptive service connection, in conclusion, is granted. REASONS FOR REMAND Unfortunately, adjudication of service connection for hypertension cannot occur without additional development. The Veteran contends he has hypertension which was first discovered during a physical conducted on weekend drill. He believes this may qualify as active service. As proof, he cites a February 2001 service treatment record documenting a blood pressure of 200/124. Another from that month documents a blood pressure of 200/120. However, other service treatment records suggest that his hypertension manifested even earlier. Hypertension means diastolic blood pressure is predominantly 90mm or greater, and isolated systolic hypertension means systolic blood pressure is predominantly 160 mm or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). The Veteran's diastolic blood pressure came close to 90 on three occasions in the 1980's, two during his first period of service. It was 90 on a fourth occasion in June 1986. The Veteran's diastolic blood pressure on one day in June 1991 was over 90 twice and close to 90, with a systolic blood pressure nearing 160, a third time. Hypertension was noted, and he was told to get his blood pressure checked by his private physician. The three readings taken by this physician,Dr. J.W., later the same month were all normal. So were three more readings taken in July 1991. As such, "BP is OK" was denoted. The only other notable entry from the 1990's was another occasion where the Veteran's diastolic blood pressure was 90 and systolic blood pressure was nearly 160 in February 1996. In February 2000, he responded yes when asked if he had been told during the last year that he had high blood pressure. A diagnosis of hypertension being controlled by medication finally consistently was denoted following the two aforementioned February 2001 readings. A June 2005 entry from private physician Dr. E.M. reflects the Veteran's hypertension is treated and well-controlled with medication, for example. In sum, the Veteran's blood pressure was problematic well prior to February 2001. Yet precisely when he was diagnosed with hypertension is unclear. This is important because a disability must be incurred or aggravated in the line of duty during active military, naval, or air service to be service-connected. 38 U.S.C. §§ 101(16), 1110, 1131; 38 C.F.R. §§ 3.1(k), 3.303(a). Such service includes active duty, any period of ACDUTRA during which a disease or injury resulting in disability was incurred or aggravated, and any period of INACDUTRA during which an injury (but not a disease) resulting in disability was incurred or aggravated. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). The Veteran's periods of ACDUTRA and INACDUTRA thus must be established. It appears that private Drs. J.W. and E.M. may have treatment records concerning his hypertension, and particularly concerning when he was first diagnosed. Attempts must be made to obtain them as well as any others that the Veteran or his representative identifies as relevant. The same goes for any VA treatment records concerning him. Arrangements finally must be made, after completion of all records development, for another VA medical opinion to be rendered. The only one so far was rendered following an examination of the Veteran in January 2016. It was concluded that his hypertension was less likely than not caused by valvular heart disease. He has not contended this, however. What he has contended, that his hypertension first manifested during what might be active service, was not addressed. Even if it had been addressed, it likely would not have been probative given the inaccurate facts set forth in the examination report (first elevated blood pressure reading in 2003 when it actually was in June 1986; all blood pressure readings in the 1990's were normal when those in June 1991 were not; no diastolic readings over 100 when the February 2001 readings were 120 and 124 respectively). The Veteran's alternative contention that his work around jet fuel during service contributed to his hypertension also was not addressed. The aforementioned issue is REMANDED for the following action: 1. Undertake any necessary action to determine the Veteran's periods of ACDUTRA and INACDUTRA service. Document these periods in a memorandum for the claims file. 2. Follow established procedure for obtaining: (a) any VA treatment records concerning the Veteran and (b) any private treatment records identified as relevant to his hypertension. Such private treatment records include, but are not limited to, those from Dr. J.W. and Dr. E.M. since when this disability onset is of particular import. 3. After completing paragraphs 1 and 2, arrange for a qualified VA clinician to review the claims file. This clinician then shall opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension: (a) onset during his active duty or ACDUTRA service or (b) otherwise is related, whether from being aggravated/worsened beyond natural progression (if onset was not during active service) or otherwise, to his active duty or ACDUTRA service? That he worked around jet fuels must be considered in that regard. A detailed explanation is required to support the clinician's opinion. This means that relevant medical principles and/or medical literature should be discussed as it relates specifically to the Veteran, as shown by his medical and lay (non-medical) evidence. In this regard, comment must be made on his reports concerning the onset and course of his hypertension. 4. Then readjudicate service connection for hypertension. If that issue remains denied, follow established procedure for returning it to the Board. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Becker 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.