Citation Nr: 22015461 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 17-38 251 DATE: March 17, 2022 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT The evidence is at least evenly balanced as to whether the Veteran's tinnitus is related to in-service acoustic trauma. CONCLUSIONS OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1993 to November 2000. In October 2019, the Veteran testified at a Board of Veterans' Appeals (Board), hearing before a Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. The VLJ who presided at this hearing has retired and the Veteran declined to appear at another hearing. In a January 2020 decision, the Board, inter alia, denied service connection for bilateral hearing loss and tinnitus. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In November 2021, the Court issued a Memorandum Decision that vacated the Board's denial of the service connection claims on appeal, and remanded these matters to the Board for actions consistent with the Court's decision. In the Court's decision, it found that the Board erred by failing to provide an adequate basis for denying service connection for hearing loss. In addition, the Court found that the Board did not properly address the November 2019 private audiological examination. The Court found that the Veteran had a current hearing loss disability in his right ear for VA purposes. Regarding tinnitus, the Court found that the Board failed to support its determination that the Veteran was not credible in reporting a history of continuous tinnitus symptoms with an adequate statement of reasons or bases. Entitlement to service connection for tinnitus The Veteran contends that he has tinnitus from in-service acoustic trauma from the rifle range, which has caused ringing in his ears. See Board hearing transcript, p. 4. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38U.S.C. §1110; 38C.F.R. §3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38C.F.R. §3.303(d). In regard to the establishment of a current disability, tinnitus is a disability for which a lay person may offer a competent diagnosis. Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). Therefore, as the Veteran is competent to report a ringing in his ears, a current disability has been established. A November 2019 private opinion from Dr. G. opined that it is more than likely than not that tinnitus was caused by the Veteran's time spent on the rifle range while on active duty. As rationale, he stated that he had reviewed the Veteran's medical records and discussed his military history, to include the Veteran's reports of constant ringing in his ears that had its onset in service since 1996. For the following reasons, entitlement to service connection for tinnitus is warranted. The Board gives significant probative weight to the November 2019 private treatment records from Dr. G. that noted the Veteran's diagnosis of tinnitus and discussed his in-service noise exposure and his tinnitus symptoms of many years. The private physician who made that diagnosis listed the reported history of the Veteran, to include his in-service noise exposure, and based the diagnosis on the aforementioned history, which is credible and consistent with the Veteran's circumstances of service and his lay statements detailing his tinnitus symptoms since service. In addition, the Veteran's statements indicating he experienced ringing in his ears in-service and since his service are competent and credible. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (the Veteran is competent to report factually observable occurrences in-service and the timing of the observable symptoms of his disability). As the Veteran's lay statements regarding his tinnitus are competent and credible, the lack of reports of tinnitus in the Veteran's service treatment records or at his separation exam are not fatal to the Veteran's service connection claim. Buchanan v. Nicholson, 451 F.3d 1331, 1336 ("If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence"). For the reasons set forth above, the evidence is at least in relative equipoise as to whether the Veteran's tinnitus is related to in-service acoustic trauma. As the reasonable doubt created by the relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND While a November 2019 private audiological examination indicated that the Veteran has hearing loss in his right ear and possibly in his left ear (based on his speech discrimination score), the Veteran has not been afforded a VA examination to determine the etiology of any disability. VA is obliged to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has current disability or persistent or recurrent symptoms of disability, the record indicates that the disability or symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As the evidence of record indicates that the Veteran has hearing loss that may be associated with noise exposure suffered during active service, a remand is warranted for a VA examination. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA audiological examination to determine the nature and etiology of hearing loss. Audiometric testing and speech discrimination testing must be completed. The claims file should be provided to the examiner and a complete rationale should accompany any opinion provided. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right ear hearing loss is related to noise exposure during service. The examiner should note that a November 2019 private audiological examination found right ear hearing loss. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any left ear hearing loss is related to noise exposure during service. The examiner should note that a November 2019 private audiological examination indicated possible left ear hearing loss. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Kovacs, 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.