Citation Nr: 22016444 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 19-33 861 DATE: March 22, 2022 ISSUES 1. Entitlement to service connection for bilateral hearing loss disability (BHL). 2. Entitlement to service connection for tinnitus. ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for BHL is remanded. FINDING OF FACT The Veteran's current tinnitus is etiologically related to service. CONCLUSION OF LAW Tinnitus was incurred in active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1986 to December 1989. This case comes before the Board of Veterans' Appeals (Board) from an October 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his spouse testified before the undersigned in September 2021 during a travel Board hearing; a copy of the transcript is of record. In light of the favorable determination contained herein, further development with regard to VA's duties to notify and assist for the issue of entitlement to service connection for tinnitus, as set forth by the Veterans Claims Assistance Act of 2000 (VCAA), would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540 (1991). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Service Connection Legal Criteria and Analysis Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). In order to establish service connection for the claimed disorder, there must be (1) competent evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). The disease must have manifested to a degree of 10 percent or more within one year of separation from service. 38 C.F.R. § 3.307 (a)(3). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). VA is required to give due consideration to all pertinent competent medical and lay evidence. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). VA examination shows a diagnosis of tinnitus. Accordingly, Hickson element (1) is met. Turning to the second prong of Hickson, an in-service incurrence of a disease or injury, the Veteran's DD Form 214 shows that he was an electrical power production specialist, and he testified before the undersigned that his duties involved working on gas-powered generators. He also testified as to having noise exposure in service related to duties on the flight line. Accordingly, Hickson element (2) is met; exposure to in-service acoustic trauma is conceded. The Veteran was afforded a VA-contracted examination in October 2018 in which he reported first noticed the ringing in his ears about the summer of 1989. He stated that it started very minor, and he mostly noticed at night; it progressed louder over the years. The examiner provided a negative etiological opinion, stating that there was no significant threshold shift observed during service for either ear. However, the Board notes that regulations do not preclude service connection for a current disability which first met VA's definition of disability after service. 38 C.F.R. § 3.385 (2017); Ledford v. Derwinski, 3 Vet. App. 87 (1992). Accordingly, the Board does not afford this opinion probative value. The Veteran testified before the undersigned that he had tinnitus in service, starting six months prior to separation. The Veteran also testified that his tinnitus continued from service to the present day. The Board finds the Veteran competent and credible in reporting his onset of tinnitus and continuation of symptoms since service. Tinnitus is a chronic disease listed under 38 C.F.R. § 3.309 (a) (2017); therefore, the provisions of 38 C.F.R. § 3.303 (b) (2016) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. With a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to inter-current causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303 (b). Thus, with respect to Hickson element (3), recognizing that this is a chronic disease as discussed above, the Board finds that service connection is warranted for tinnitus. REASONS FOR REMAND The Board finds that additional evidentiary development is required before adjudication of the issue regarding service connection for BHL. The Veteran was afforded a VA-contracted examination in October 2018 in which the examiner provided a negative etiological opinion for the claimed BHL, stating that no significant threshold shifts were recorded during service. However, regulations do not preclude service connection for current hearing loss which first met VA's definition of disability after service. 38 C.F.R. § 3.385 (2017); Hensley v. Brown, 5 Vet. App. 155 (1993); Ledford, 3 Vet. App. 87 (lack of documented hearing loss while in service is not fatal to a claim for service connection.). As such, the Board finds that the Veteran should be afforded a VA examination on remand. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records; and, with appropriate authorization from the Veteran, any additional outstanding private treatment records identified by him as pertinent to his claim. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed BHL. The claims file and a copy of this REMAND must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. After a complete review of the records, the examiner should address whether it is at least as likely as not that any diagnosed BHL (per VA regulations) is related to his period of active duty service; to include the conceded in-service acoustic trauma. In rendering the above opinion, the examiner is advised that the mere absence of in-service evidence of a hearing loss disability during service is not fatal to a service connection claim. See Ledford, 3 Vet. App. 87, 89. 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 a hearing loss disability where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. See Hensley, supra. 3. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal. If any benefit sought on appeal remains denied, furnish the Veteran and his representative with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M.K., 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.