Citation Nr: 21031331 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 19-35 329 DATE: May 21, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for hearing loss is remanded. FINDING OF FACT The evidence is in equipoise as to whether the Veteran's tinnitus is etiologically related to service. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from December 1965 to December 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2019 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for tinnitus. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran contends that he has tinnitus that was caused by service. Specifically, in a December 2018 Statement in Support of Claim, the Veteran contended that his tinnitus and hearing loss began in service while working a funeral detail conducting military rites for deceased Veterans for six months. He also reported that during a bus ride home, the soldier sitting next to him fired a blank round next to his ear. He further reported being a forward observer for a missile battery. The Board notes that the Veteran's DD-214 shows his military occupational specialty (MOS) was a fire distributor operator which is highly probable for noise exposure. Therefore, acoustic trauma in service is conceded. In his January 2019 VA audiology examination, the Veteran was diagnosed with tinnitus. He reported having tinnitus periodically for many years. However, the examiner found that tinnitus was not related to service. Essentially, the examiner attributed the Veteran's tinnitus to his hearing loss and concluded that since hearing loss is not delayed and since the Veteran did not have a threshold shift in service, his tinnitus and hearing loss were therefore unrelated to service. The examiner did not adequately consider the Veteran's lay statements of symptoms in and since service. Thus, this opinion is inadequate. In his VA Form 9, the Veteran acknowledged that his service records showed no complaints for tinnitus or hearing loss; however, he noted that he was sure that they were affected, he was just "too young to say anything" while in service. The Board notes that, tinnitus, which manifests as ringing in the ears, is not the type of medical condition which requires specialized medical knowledge or training to assess. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, the Veteran, as a lay person, is competent to report symptoms such as ringing or buzzing in his ears as this requires only personal knowledge as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). It is error to categorically reject a lay person as competent to provide a nexus opinion, not all questions of nexus are subject to non-expert opinion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case. The Board finds that the Veteran is competent to identify a disorder such as tinnitus for diagnostic purposes and determine its onset and an additional examination is not essential. 38 C.F.R. § 3.159 (a)(2); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002); Falzone v. Brown, 8 Vet. App. 398, 405 (1995). Here, the Board has conceded acoustic trauma during active service. The Veteran has competently reported that he first experienced tinnitus while in service and periodically for many years and those statements have been found credible by the Board. Therefore, the Board finds the preponderance of the evidence in favor of his claim. Accordingly, service connection for tinnitus is granted. REASONS FOR REMAND 1. Entitlement to service connection for hearing loss is remanded. In his January 2019 VA audiology examination, the examiner diagnosed the Veteran with bilateral sensorineural hearing loss, but the examiner found that the condition was not related to service. In doing so, the examiner noted the Veteran's MOS of fire support specialist was highly probable for hazardous noise in service, and that the Veteran reported some occupational noise exposure after service while working as a daily farmer. The examiner indicated that the Veteran's service treatment records (STRs) revealed no shifts in hearing threshold while in service and that research dictates that the effects of noise are immediate, finite, and do not cause any delayed onset of threshold symptoms. The examiner concluded that due to the stable thresholds in service, acoustic trauma cannot be conceded, and it is less likely than not that the Veteran's hearing loss is a direct result of military noise exposure. The Board notes, however, that the absence of a hearing loss disability in service does not preclude service connection. See Hensley v. Brown, 5 Vet. App. 155, 163-64 (1993). In addition, although the examiner found stable thresholds in service, there is evidence that the Veteran may have had a pre-existing hearing loss disability which would warrant a different standard. Notably, his Record of Induction shows an October 1964 PULHES score of 2 for "H," signifying less than the highest level of fitness for hearing. The Board notes that the "PULHES" profile reflects the overall physical and psychiatric condition of an individual on a scale of 1 (high level fitness) to 4 (medical condition or physical defect is below the level of medical fitness required for retention in military service). The "P" stands for "physical capacity or stamina," the "U" stands for "upper extremities," the "L" stand for "lower extremities," the "H" reflects the condition of the "hearing and ears," the "E" is indicative of the "eyes," and the "S" stand for "psychiatric condition." Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). In addition, the Veteran's October 1965 entrance examination shows a threshold of 30 decibels at 4000 hertz, which is indicative of some hearing loss. See Hensley, supra (finding that thresholds above 20 decibels indicate some degree of hearing impairment). Moreover, although the examiner found that the effects of noise are immediate and do not cause any delayed onset of threshold symptoms, the Veteran's representative refenced medical literature in his appellate brief that asserts noise-induced hearing loss can be immediate or it can take a long time to be noticeable. Therefore, given the above, the Board finds a new medical opinion is warranted to consider the literature submitted by the representative and to determine whether the Veteran's hearing loss pre-existed service; and if so, to determine whether his hearing loss was aggravated by service. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims folder. 2. Schedule the Veteran for a VA audiology examination with an appropriate medical professional to determine the etiology of his hearing loss. The claims file, to include a copy of this remand, must be made available to the examiner for review. All indicated tests and studies must be performed, and a comprehensive history should be obtained. The examiner should provide a thorough opinion with a rationale as to the following: a) Whether there is clear and unmistakable evidence that the Veteran's hearing loss existed prior to service. b). If the condition pre-existed service, is there clear and unmistakable evidence that the Veteran's hearing loss disability was NOT aggravated beyond its natural progression by his in-service acoustic trauma. c). If the condition did NOT pre-exist service, is it at least as likely as not (a 50% or greater probability) that the Veteran's hearing loss disability manifested during service, or is otherwise related to service, to include his in-service acoustic trauma. The examiner is advised that noise exposure in service is conceded. The examiner should consider all lay statements of record in the rendered decision. The examiner should provide a complete rationale for any opinions expressed. 3. Then, readjudicate the claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Laffitte, 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.