Citation Nr: 21031392 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 10-15 700 DATE: May 21, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT The Veteran denied the presence of tinnitus on an April 2015 exam, noting he had had it in the past, but not now. He testified that he had ringing in his ears at the time of the personal hearing in November 2014. He reported it essentially of and on over the years. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from September 1951 to April 1954. The Veteran died in September 2015 and the appellant, his spouse, has since been substituted for purposes of processing the claim to completion. It is noted that in September 2015, the Board issued a death dismissal for the Veteran's appeal with respect to the issues of entitlement to service connection for an acquired psychiatric disorder, residuals of cold weather injury to the bilateral hands and feet, a low back disorder, bilateral hearing loss, and tinnitus. However, a review of the record reveals that a June 2015 rating decision granted entitlement to service connection and assigned various evaluations for all of the above listed issues except for bilateral hearing loss and tinnitus. In other words, 4 of the 6 issues originally on appeal were granted prior to being received by the Board and were thus no longer on appeal. A supplemental statement of the case (SSOC) was then furnished for the issues of entitlement to service connection for bilateral hearing loss and tinnitus in June 2015, which were then dismissed by the Board. As the appellant has been properly substituted, the Board finds that the only remaining issues within its jurisdiction are entitlement to service connection for bilateral hearing loss and tinnitus. Service connection for the cause of the Veteran's death was later denied in January 2016 and it appears that the appellant filed a supplemental claim in January 2021, which is not currently before the Board. Service Connection 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. § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in-service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, for Veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including tinnitus and bilateral hearing loss, may be presumed to have been incurred in-service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown in-service, subsequent manifestations of the same chronic disease are generally service-connected. If a chronic disease is noted in-service but chronicity in-service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1339-40 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. 38 U.S.C. § 5107. VA shall consider all information and lay and medical evidence of record in a case. If a preponderance of the evidence supports a claim, or if a claim is in relative equipoise, the claimant shall prevail. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). If a preponderance of the evidence is against a claim, it will be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). If there is an approximate balance of positive and negative evidence regarding any material issue, the benefit of the doubt goes to the claimant. Gilbert, 1 Vet. App. at 53-54. Entitlement to service connection for tinnitus Initially, the Board notes that the Veteran's service treatment records are unavailable because were destroyed by fire and additional efforts to obtain them would be futile. The Board further notes that the Veteran received a VA audiological examination in April 2015. According to the examiner, the Veteran did not report tinnitus. The examiner stated that "Veteran reports that he experienced tinnitus in the past, but he no longer has tinnitus." At the earlier hearing before the undersigned, however, he reported that he had tinnitus and essentially indicated that he had it on and off over the years. Importantly, service connection requires a showing of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A current disability is shown if the claimed condition is demonstrated at the time of the claim or while the claim is pending. McClain v. Nicholson, 21 Vet. App. 319 (2007). Here, while not shown in April 2015, it was noted to be present while the claim was pending, and on that basis, service connection can be granted. The Veteran was competent to report his symptoms. Thus, resolving reasonable doubt in his favor, service connection for tinnitus can be granted, based on the testimony he offered, as tinnitus is the type of disorder that one can note using one's own senses. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. Review of the record reveals that a remand is required in order to arrange for an addendum opinion. As noted above, the Veteran's service treatment records are unavailable as they were likely destroyed by fire. During the course of the appeal, the Veteran received a VA audiological examination in April 2015, wherein he was diagnosed with bilateral hearing loss. Unfortunately, the examiner could not provide a medical opinion regarding the etiology of the Veteran's hearing loss without resorting to speculation. The examiner provided the following remarks: This veteran served for over two years in Korea, involved in active combat. A review of his records revealed that there are no audiograms available. It is reported that his records are suspected of being destroyed in the fire at the records center. The veteran states that he was exposed to rockets and machine gun fire during his active combat duty, in addition to exposure to frequent firing of a 75 recoilless rifle as he was the gun's loader. While there is no evidence available to support the veteran's claim of hearing loss due to military service, conventional wisdom would suggest that he was exposed to significant levels of noise during his active duty service in Korea, which certainly could have led to acoustic trauma or noise induced hearing loss. The lack of records, however, leaves the examiner only speculation and conventional wisdom to form a medical opinion regarding this veteran's hearing loss as it relates to his service. As the veteran is 83 years old, without evidence to support hearing loss following his service, his hearing loss could also be attributed to aging. Considering the above, the Board finds the April 2015 opinion at least partially inadequate due to speculative rationale. Therefore, a retrospective addendum opinion would help resolve this issue. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an audiologist to determine the nature and etiology of the Veteran's claimed bilateral hearing loss. The audiologist is to be provided access to the Veteran's electronic claims file. The audiologist is requested to review all pertinent records associated with the claims file, the Veteran's service treatment records, post-service medical records, and the Veteran's own assertions. Any indicated diagnostic tests and studies should also be accomplished. It should be noted that the Veteran was competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology and in-service noise exposure. If there is a medical basis to support or doubt the history provided by the Veteran, the audiologist should provide a fully reasoned explanation. The VA audiologist must opine whether it is at least as likely as not, i.e., is there a 50/50 chance, that the Veteran's bilateral hearing loss manifested in-service or was otherwise causally or etiologically related to his military service, to include potential in-service noise exposure. It should also be indicated whether the hearing loss was the type typically seen in cases of acoustic trauma, or was more likely due to advancing age, infection, or other cause. All prior reports should be reconciled, as necessary. 2. After the development requested has been completed, the Agency of Original Jurisdiction (AOJ) should review any report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures at once. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Miller, 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.