Citation Nr: 22012575 Decision Date: 03/04/22 Archive Date: 03/04/22 DOCKET NO. 19-21 656 DATE: March 4, 2022 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT The evidence of record is at least in relative equipoise as to whether the Veteran's tinnitus is related to his active-duty service. CONCLUSION OF LAW With resolution of reasonable doubt in favor of the Veteran, the criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1965 to January 1969. These matters are before the Board of Veterans' Appeals (Board) on appeal of a December 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c); 38 U.S.C. § 7107 (a)(2). Entitlement to service connection for tinnitus is granted. The Veteran seeks entitlement to service connection for tinnitus due to in-service exposure to noise. Specifically, he has asserted that he was exposed to significant noise from diesel generator power plants and low pressure boilers while working without hearing protection. See e.g. November 2018 Compensation and Pension Examination. The Board notes that his DD 214 reflects that his military occupational specialty was Electric Power Production Specialist. Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a disability, the Veteran must show: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred in 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). Certain chronic diseases, to include organic diseases of the nervous system such as tinnitus, will be presumed related to service if they were noted as chronic in service; if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303 (b), 3.309 (a). 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 assertions that he currently has tinnitus constitute competent evidence of a current disability of tinnitus. Furthermore, the Board finds that nothing in the record impugns his 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 are absent for evidence of any complaints of or treatment for tinnitus during active service. However, the Veteran has indicated that his tinnitus began during his active service and the Board finds that nothing in the record impugns his credibility on that matter. Accordingly, despite the absence of contemporaneous records showing in-service complaints of tinnitus, the Board finds that the Veteran's tinnitus had its onset during his active service. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (it may not be determined that lay evidence lacks credibility merely because the evidence is unaccompanied by contemporaneous medical evidence). At a November 2018 Compensation and Pension examination, the examiner affirmed that the Veteran has a current diagnosis of tinnitus. However, the VA-contracted examiner also stated that this condition is a symptom of the Veteran's bilateral hearing loss, which was not found to be due to his noise exposure inservice. However, a medical examiner cannot rely on the absence of service treatment records to conclude there is no relationship between a current disability and service. Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007) (an examination is inadequate where the examiner fails to address a Veteran's report of relevant injury in service and, instead, relies on an absence of evidence in the treatment records to provide a negative opinion). Thus, this opinion is awarded low probative weight. Further, the Board reiterates that the Veteran is considered competent to report the onset and continuous presence of tinnitus. See Charles, 16 Vet. App. 370. The Board has considered both the Veteran's statements and the November 2018 examiner's opinion and finds that the evidence of record is at least in relative equipoise as to whether the Veteran's tinnitus had its onset during his active service. Therefore, the Board must resolve the benefit of the doubt in the Veteran's favor and finds that the claim for entitlement to service connection for tinnitus must be granted. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss is remanded. As with the issue of tinnitus, the November 2018 examiner also did not adequately provide an opinion as to whether the hearing loss identified after service is related to a disease or injury in service or to his reports of continuous symptoms since service. See Dalton, 21 Vet. App. 23, 39-40. As such, the Board cannot make a fully-informed decision until the Veteran is afforded a new examination and an additional opinion is authored that addresses the specific contentions made in the January 2022 appellate brief authored by the Veteran's representative. The matters are REMANDED for the following actions: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and severity of any current left or right ear hearing loss disability he has for VA purposes, as defined under 38 C.F.R. § 3.385. If the Veteran has a current left or right ear hearing loss disability for VA purposes, the examiner must opine whether it is at least as likely as not (50 percent probability or greater) that the hearing loss is due to the Veteran's in-service exposure to noise. In so opining, the examiner is asked to reconcile to the extent possible the assertions made in the January 2022 appellate brief that "a review of Veteran's service treatment records reveals a noticeable shift in his hearing. See STRs (09/28/2018); VA 646 (08/02/2019). Further, the [November 2018] examiner relied on a "normal" separation audio exam to support his negative opinion; and, again, failed to discuss the noticeable shift in Veteran's hearing while in service. See C&P Examination (11/16/2018) at 5. Additionally, Veteran has reported that he had extreme noise exposure in service and that he did not wear proper hearing protection during his annual weapons qualification." (Continued on the next page) The examiner should note that, under applicable law, the absence of evidence of a hearing loss disability during or shortly after service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service, such as determining that the disability is a delayed result of in-service noise exposure, 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. 2. After completion of the above, review the expanded record and determine whether the benefits sought may be granted. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. A reasonable period should be allowed for response before the appeal is returned to the Board. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Smith, 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.