Citation Nr: 22015252 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 19-26 786 DATE: March 16, 2022 ORDER Entitlement to service connection for bilateral recurrent tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for multiple sclerosis (MS) is remanded. Entitlement to service connection for a left ankle disability is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his bilateral recurrent tinnitus was caused by or incurred during active-duty training (ACDUTRA). CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral tinnitus are met. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty for training (ACDUTRA) in the U.S. Army from July 1977 to October 1977, with Army National Guard service from May 1977 to June 1984 and U.S. Army Reserves service from April 1988 to December 2005, with periods of ACDUTRA and inactive duty for training (INACDUTRA). This case comes before the Board on appeal of an August 2018 rating decision. In March 2022, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via a live video conference. Transcript of the proceeding will be associated with the record. Service Connection Generally, to establish service connection a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may also be granted through the application of statutory presumptions for chronic conditions, which includes hypertension, sensorineural hearing loss and tinnitus. See 38 C.F.R. §§ 3.303 (b), 3.309 (a) (2019); see also 38 U.S.C. §§ 1112, 1137 (2012). First, a claimant may benefit from a presumption of service connection where a chronic disease has been shown during service. 38 C.F.R. § 3.303 (b). In the alternative, if a chronic disease was not shown in service, but manifested to a degree of 10 percent or more within some specified time after separation from active service, such disease shall be presumed to have been incurred or aggravated in service, even if there is no evidence of such disease during service. 38 U.S.C. §§ 1112, 1137 (2012); 38 C.F.R. § 3.307 (a)(3) (2019). The application of these presumptions operates to satisfy the "in-service incurrence or aggravation" element and establish a nexus between service and a present disability, which must be found before entitlement to service connection can be granted. A veteran is "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable." 38 U.S.C. § 101 (2); 38 C.F.R. § 3.1 (d). The term "active military, naval, or air service" includes the following: active duty; any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty while performing ACDUTRA; or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred or aggravated in the line of duty while performing INACDUTRA, or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during INACDUTRA. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (a). ACDUTRA is, among other things, full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c)(1). INACDUTRA is part-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c)(1). Active service also includes authorized travel to or from such duty or service. 38 U.S.C. § 106 (d); 38 C.F.R. § 3.6 (e). In summary, when a claim for service connection is based only on a period of ACDUTRA or INACDUTRA, such as the instant case, there must be evidence that the claimant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA or INACDUTRA. See 38 U.S.C. §§ 101 (2), (22), (24); 38 C.F.R. § 3.6 (a); Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010); Acciola v. Peake, 22 Vet. App. 320, 324 (2008) (citing Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995)). In the absence of such evidence, the period of ACDUTRA or INACDUTRA would not qualify as "active military, naval, or air service," and the claimant would not qualify as a "veteran" for that period of ACDUTRA or INACDUTRA service alone. 38 U.S.C. § 101 (2), (24); see Acciola, 22 Vet. App. at 324. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Likewise, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be more persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b) (2012). Entitlement to service connection for bilateral recurrent tinnitus Here, the Veteran contends that his bilateral tinnitus was incurred during his period of ACDUTRA. Specifically, the Veteran stated that he trained with firearms and explosives during field training. He recalled one incident where he pulled the pin too quick on a grenade which exploded near him. He stated that since that incident he has had ringing in his ears. Resolving reasonable doubt in the Veteran's favor, the Board agrees. At the outset, the Board notes that tinnitus is, by definition "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." Dorland's Illustrated Medical Dictionary, 1914 (30th ed. 2003). As such, tinnitus is "subjective," as its existence is generally determined by whether the Veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). Importantly, if a veteran report ringing in his or her ears, then a diagnosis of tinnitus is generally applied without further examination. In the July 2018 VA examination, the audiologist opined that the Veteran's bilateral recurrent tinnitus was less likely than not caused by or a result of military noise exposure. The audiologist reasoned that it is well understood that there are many causes of tinnitus. The audiologist stated that hearing loss is the most common factor associated with tinnitus; however, in the absence of hearing loss or changes in hearing the etiology of tinnitus cannot be determined to a reasonable degree of certainty based on the evidence. She continued that the absence of hearing loss did not rule out tinnitus as a symptom of other conditions associated with military service. The audiologist explained that there are other conditions with known association to tinnitus (e.g., ear disease, traumatic brain injury, psychological disorders, sleep disorders, vascular disorders, neurological disorders, medication use, etc.). However, there was no compelling scientific evidence to support the onset of tinnitus in the absence of hearing loss. Although the Board acknowledges the audiologist's competent and credible opinion, the Board notes that the Veteran is competent to report that he first experienced symptoms of tinnitus during ACDTURA and that the symptoms have continued since that time, as tinnitus is a condition that is subjective and capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002) (finding lay person competent to attest to in-service acoustic trauma, in-service symptoms of tinnitus, and post-service continuous symptoms of tinnitus "because ringing in the ears is capable of lay observation"). As tinnitus is a purely subjective disability, the Board finds the evidence is at least in relative equipoise as to whether the current tinnitus was caused by or incurred during a period of ACDUTRA. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for bilateral recurrent tinnitus is warranted. 38 U.S.C. § 5107 (b). REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to service connection for bilateral hearing loss is remanded. Here, the Veteran contends that his current hearing loss was caused by or incurred during his period of ACDUTRA. The July 2018 VA examination showed that the Veteran had sensorineural hearing loss bilaterally. However, the audiologist provided a negative opinion reasoning that the Veteran's hearing was normal on entrance and separation. The Board notes that the Veteran's right ear met the audiometric threshold for hearing loss and the Veteran reported that his hearing has worsened bilaterally. Moreover, the Veteran is competent to report on issues in which he has personal knowledge. Furthermore, his DD 214 showed that he trained as a field medic. As such, exposure to military noise is conceded. Accordingly, remand for a VA examination to determine the Veteran's hearing loss is warranted. 2. Entitlement to service connection for multiple sclerosis (MS) is remanded. Here, the Veteran contends that he has MS that was caused by or incurred during a period of ACDUTRA. The Board finds that little development regarding the Veteran's contentions has been conducted. There is no evidence that the Veteran has MS; thus, on remand the Veteran should be afforded a VA examination to determine the etiology of his MS, if diagnosed. 3. Entitlement to service connection for a left ankle disability is remanded. Lastly, the Veteran contends that he suffered a left ankle disability following a drill weekend in September 1981. He explained that he was in a motorcycle accident following a drill weekend that caused his left ankle disability. The Board notes that the Veteran was part of the Army National Guard during this time, but it is unclear if the Veteran was in the line of duty during his injury. On remand, the Veteran should be afforded a VA examination to determine his left ankle disability. Moreover, on remand, the AOJ should obtain the Veteran's complete service personnel records and determine the Veteran's dates of ACDUTRA and INACDUTRA during his National Guard and Reserve service. The Board acknowledges the military personnel records and records pertaining to the character of the Veteran's service, for example, there is a notation in the Service Record submitted August 2018; however, the information presented does not include dates for ACDUTRA and INACDUTRA, so that the Board can properly adjudicate the claims. The matters are REMANDED for the following action: 1. Verify the Veteran's complete periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) from May 1977 to December 2005. A list of retirement points is not sufficient. Document all requests for information as well as all responses in the Veteran's claims folder. 2. Following completion of the above, issue a memorandum for inclusion in the Veteran's claims folder detailing each period of verified active service, whether on active duty, ACDUTRA, or INACDUTRA. 3. Obtain the Veteran's complete service treatment records (to include all clinical records) and service personnel records for all periods of active duty, ACDUTRA, or INACDUTRA from any appropriate entity. 4. After the above development is completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his hearing loss, left ankle disability, and multiple sclerosis, if diagnosed. The VA examiner should address the following: 5. Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's bilateral hearing loss had its onset during service or is otherwise causally related to any event or circumstance of the Veteran's service. 6. Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's multiple sclerosis, if diagnosed, had its onset during service or is otherwise causally related to any event or circumstance of the Veteran's service. 7. Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's left ankle disability had its onset during service or is otherwise causally related to any event or circumstance of the Veteran's service. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 8. The examiner should cite to the pertinent medical and competent lay evidence of record and explain the rationale for all opinions given. If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated, and the provider must (to comply with governing legal guidelines) explain why the opinion sought cannot be offered without resort to speculation. 9. Thereafter, readjudicate the claims on appeal. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Umo, 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.