Citation Nr: 21040100 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-48 953 DATE: July 2, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED The issue of entitlement to service connection for bilateral hearing loss is remanded. The issue of entitlement to service connection for a neck disability is remanded. The issue of entitlement to service connection for bilateral plantar fasciitis is remanded. FINDING OF FACT The Veteran's tinnitus began during his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1981 to April 1987 and from February 2003 to February 2004. These matters come before the Board of Veterans' Appeals (Board) on appeal of an October 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for tinnitus is granted. The Veteran seeks entitlement to service connection for tinnitus. He reported that his tinnitus had its onset during active service and that he believes it is due to in-service exposure to noise from aircraft. With respect to the current disability element of service connection, tinnitus is readily observable by laypersons, and medical expertise is not required to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). Therefore, the Veteran's assertion that he currently has tinnitus constitutes competent evidence of a current disability of tinnitus. Furthermore, the Board finds that nothing in the record impugns the Veteran's credibility on the matter, and concludes that the Veteran has a current disability of tinnitus. With respect to an in-service injury or disease, the Veteran's service treatment records do not reflect complaint of or treatment for tinnitus. Nevertheless, he has stated that the condition had its onset during his active service. As noted above, the Veteran's statements as to the presence of tinnitus constitute competent evidence of its existence. The Board finds that nothing in the record impugns the Veteran's credibility as to the onset of the condition. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible). Therefore, the Veteran's statement is competent and credible evidence that his tinnitus began during his active service. Tinnitus, as an organic disease of the nervous system, may be service connected where it is first shown in service and has subsequent manifestations. See 38 C.F.R. §§ 3.303 (b), 3.307(a) (3), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, the Veteran has credibly reported that his tinnitus began during his active service and has persisted through the present. The Board resolves any remaining doubt in the Veteran's favor and finds that the claim for entitlement to service connection for tinnitus must be granted as a presumptive chronic condition. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran seeks entitlement to service connection for bilateral hearing loss. He contends that the hearing loss is due to in-service exposure to noise from aircraft. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz (Hz) is 40 decibels (dB) or greater; or when the thresholds for at least three of these frequencies are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. During the pendency of the appeal the Veteran has been provided two separate VA examinations. At a September 2014 VA examination, the Veteran demonstrated speech discrimination scores of 92 percent in the right ear and 88 percent in the left ear. At an August 2016 VA examination the Veteran demonstrated bilateral speech discrimination scores of 100 percent. As such, the September 2014 VA examination reflects that the Veteran demonstrated bilateral hearing loss during the pendency of the appeal. The September 2014 VA examiner opined that the Veteran does not have hearing loss. The August 2016 VA examiner opined that the Veteran's bilateral hearing loss is less likely than not related to his active service. As rationale, the VA examiner explained that the Veteran's bilateral hearing was documented as normal upon his separation from active service. The VA examiner noted that the Veteran's MOS is associated with routine exposure to high risk noise. Under applicable law, the absence of in-service evidence of a hearing loss disability is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In this case, the Veteran has presented competent and credible evidence of in-service acoustic trauma from noise exposure. The VA examiner essentially based the negative nexus opinion on the fact that the Veteran's service treatment records do not show an in-service hearing loss. The examiner did not explain why evidence showing an in-service hearing loss is required to determine that the Veteran's hearing loss was incurred in active service or is otherwise etiologically related to his active service, to include the reported exposure to noise. The Board therefore finds the August 2016 VA examination to be inadequate, and that a remand is required so that an addendum opinion may be obtained. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 2. Entitlement to service connection for a neck disability is remanded. 3. Entitlement to service connection for bilateral plantar fasciitis is remanded. The Veteran contends that he has a current neck disability and bilateral plantar fasciitis that are directly related to his active service. He asserted that he injured his neck after hitting his head during service. He further asserts that he injured his bilateral feet during service but did not seek medical attention at the time. The Veteran's medical treatment records also show that the Veteran has been diagnosed with discogenic spondylosis and bilateral plantar fasciitis. Additionally, the Veteran's service treatment records reflect treatment for head injuries after hitting his head during service. As such, there is evidence of a current disability, an in-service event and an indication that the current disabilities are related to his active service such that the threshold for providing an examination has been met. See 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board therefore finds that the issues must be remanded so that the Veteran may be provided an examination. The matters are REMANDED for the following action: 1. Notify the Veteran that he may submit statements from himself, or others who have first-hand knowledge, of when his claimed disabilities began (i.e., when he began to notice hearing loss or neck and foot problems). Provide him a reasonable period of time to submit this evidence. 2. After obtaining any lay evidence from the Veteran, obtain an addendum opinion from an appropriate clinician regarding whether his bilateral hearing loss is at least as likely as not (50 percent probability or greater) related to his in-service exposure to noise. The clinician is to address any lay evidence regarding when the Veteran's hearing loss began. 3. Schedule the Veteran for a VA examination for his claimed disabilities of the neck and feet. The examiner is to identify any current disability associated with the Veteran's claimed foot and neck disorders. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinions below. For each current disability, is it at least as likely as not (50 percent probability or greater) that such is related to service? The examiner should address the Veteran's report that he injured his head during service and experienced foot pain in service. Joshua Castillo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. G. LeMoine, 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.