Citation Nr: 22014733 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 18-25 149 DATE: March 14, 2022 ORDER Service connection for tinnitus is granted. REMANDED The issue of entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT The evidence of record demonstrates that the Veteran's tinnitus had its onset in service and has continued to the present. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from August 1967 to September 1970, June 1973 to June 1975, and October 1975 to November 1977. The Veteran served in the Republic of Vietnam. These matters are before the Board of Veterans' Appeals (Board) on appeal of a July 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of the Veteran's claims file currently resides with the Oakland, California RO. In September 2021, the Veteran and his spouse, M., testified at a Board hearing before the undersigned. A transcript of the hearing is of record. Service Connection for Tinnitus Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection is warranted for a disease first 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). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) an in-service precipitating disease, injury, or event; and (3) a causal relationship between the current disability and the in-service event. 38 C.F.R. § 3.303 (a); Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). After reviewing the evidence of record, the Board concludes that entitlement to service connection for tinnitus is warranted in the instant case. Accordingly, the Veteran's claim is granted. In support of this determination, the Board first notes that the Veteran currently experiences tinnitus. See, e.g., October 2016 VA Otolaryngology Attending Note. As a layperson, the Veteran is competent to identify tinnitus and to testify as to observable symptoms such as ringing in his ears. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). Accordingly, the first service connection requirement of a current disability has been satisfied. Next, the Board finds that the evidence of record demonstrates an in-service incurrence regarding tinnitus. Specifically, during his September 2021 Board hearing, the Veteran testified that his military occupational specialty (MOS) was rifleman, which caused him to frequently be exposed to loud noises in service. See Hearing Tr. at 3. The Veteran elaborated that neither he nor his fellow service members wore ear protection during service. Id. at 7. The Board notes that the Veteran's service personnel records (SPRs) note a MOS of riflemen. In addition, the Board finds the Veteran to be competent to report and describe his in-service experience, and concludes that his testimony is credible in the instant case. Layno, supra. Accordingly, the second service connection requirement of an in-service incurrence has been satisfied in this case. Lastly, regarding a link between the Veteran's current tinnitus and service, the Board notes that the Veteran testified in September 2021 that his tinnitus began in service around 1977 and that it has continued to the present. See Hearing Tr. at 6. Again, the Board finds the Veteran's report regarding symptom onset and continuity of symptomatology to be credible in the instant case. See Layno, supra. As such, the Board finds that all requirements for service connection for tinnitus to be met in the instant case. Thus, service connection for tinnitus is warranted on a direct basis. See 38 C.F.R. § 3.303(a). In granting service connection, the Board acknowledges that, in June 2016, a VA examiner opined that it was less likely than not that the Veteran's tinnitus was etiologically related to service. However, in September 2021, the Veteran's spouse M. testified that both she and the Veteran believed that the June 2016 was inadequate. Specifically, M. stated that she was not permitted to attend the examination with the Veteran, and, because of his hearing impairment, he told her that he did not understand what the examiner was asking of him. See Hearing Tr. at 9. The Board finds M.'s testimony regarding the adequacy of the June 2016 VA audiological examination to be credible. Accordingly, the Board places lesser probative weight on the June 2016 examination report's findings. REASONS FOR REMAND Service Connection for Bilateral Hearing Loss Although the Board regrets the additional delay, it concludes that remand of the issue of service connection for bilateral hearing loss is warranted in this case. Specifically, as referenced above concerning tinnitus, the Veteran was provided a VA audiological examination in June 2016. This examination addressed both hearing impairment and tinnitus. Regarding hearing impairment, the examiner diagnosed the Veteran with sensorineural hearing loss in the frequency range of 500-4000 Hertz (Hz) for both ears. Then, the examiner opined that it was less likely than not that the Veteran's current hearing loss was etiologically related to service. In support of this conclusion, the examiner in part relied upon the Veteran's own statement during the examination that his hearing loss began only around the year 2020. However, as discussed above, the accuracy of the Veteran's statements during the June 2016 examination were suspect as his spouse did not accompany him to the examination, and he had difficulty understanding the VA examiner. See Hearing Tr. at 9. Accordingly, the Board remands the issue of service connection for bilateral hearing loss for the provision of an additional VA medical opinion. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records and associate them with the claims fileparticularly those created since VA treatment records were associated with the claims file in June 2018. If no such records exist, the claims file should be annotated to reflect as such, and the Veteran notified as such. 2. After Item (1) has been completed to the extent possible, send the Veteran's claims file to an appropriate VA clinician to determine the etiology of the Veteran's current bilateral hearing loss. The entire claims file, including a copy of this remand, must be made available to and must be reviewed by the clinician. If the clinician determines that a physical examination is necessary, one should be scheduled. After reviewing the claims file, the clinician should address the following: (a.) Please state whether it is at least as likely as not (the favorable and unfavorable evidence is in approximate balance or is nearly equal) that the Veteran's bilateral hearing loss had its onset in or is otherwise related to service. (b.) Please state whether it is at least as likely as not (the favorable and unfavorable evidence is in approximate balance or is nearly equal) that the Veteran's bilateral hearing manifested within one year of the Veteran's separation from service in November 1977. In providing responses to parts (a) and (b), please directly address the Veteran and his spouse's September 2021 testimony concerning in-service noise exposure and the onset of hearing loss in service. In offering any opinion, the clinician should consider medical and lay evidence dated both prior to and since the filing of the claim. The clinician must provide a complete rationale for any opinions rendered. If he or she cannot provide the requested opinions without resorting to speculation, he or she must expressly indicate this and provide a supporting rationale as to why that is so. (Signature on Next Page) S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.S. Pettine, 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.