Citation Nr: 22019975 Decision Date: 04/03/22 Archive Date: 04/03/22 DOCKET NO. 17-32 109 DATE: April 3, 2022 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to an initial compensable disability rating for bilateral hearing loss is remanded. INTRODUCTION The Veteran served on active duty from November 1954 to October 1956. In February 2022, the Veteran failed to report for his scheduled videoconference hearing before the Board. Since that time, he has not provided a basis for his failure to report or requested that his hearing be rescheduled. As such, the prior request for a hearing is deemed withdrawn. FINDING OF FACT The Veteran's tinnitus is etiologically related to his active service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Assist As explained below, the Board has determined the evidence currently of record is sufficient to grant entitlement to service connection for tinnitus. Therefore, no further development is required under 38 U.S.C. §§ 5103, 5103A or 38 C.F.R. § 3.159. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Factual Background and Analysis The Veteran seeks service connection for tinnitus, which he contends originated in service. The medical evidence confirms the Veteran currently has tinnitus. The central issue that must be resolved at this time is whether the Veteran's current disability originated during service or is otherwise related to service. Initially, the Board notes the Veteran's STRs do not show he was treated for or diagnosed with tinnitus in service; however, the Veteran's official military personnel file was determined to have been destroyed in the National Personnel Records Center fire in 1973. Considering the absence of these records, VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991) (the Board has a heightened duty in a case where the service treatment records are presumed destroyed). In this respect, the Board observes the Veteran has reported that he was initially assigned to an Artillery unit, wherein he was regularly exposed to 105 Howitzer gun fire for 6 months. The Board finds the Veteran competent to report his experiences. The U.S. Army has acknowledged this military occupational specialty (MOS) carries a high probability for exposure to acoustic trauma. On VA examination in July 2015, the examiner diagnosed the Veteran with tinnitus. However, the examiner concluded the Veteran's tinnitus was the result of another medical event. In support of her conclusion the examiner indicated the Veteran reported his tinnitus began after a recent fall. The examiner also indicated the Veteran had not initiated a claim for tinnitus. Notwithstanding the medical opinion provided by the July 2015 VA examiner, the Veteran has reported he was exposed to significant noise exposure during his period of active duty. Further, he has also stated that he initially noticed his ringing in his ears during his time in the Army, and that his tinnitus has persisted since that time. Additionally, the Board notes that although the July 2015 examiner found the Veteran had not previously initiated a claim for tinnitus, the record shows he did file a claim for this condition in October 2014. In this case, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Board also notes that under certain circumstances, lay evidence may be sufficient to establish a nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence has been found to be competent with regard to a disease that has "unique and readily identifiable features" that are "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (providing that a veteran's testimony regarding tinnitus is competent evidence, as "ringing in the ears is capable of lay observation."). Here, the Veteran has reported that he experienced ringing of the ears in service, which has persisted ever since. The Board finds the Veteran competent to report his hearing limitations. It is generally within the competence of a lay person to identify and observe the effect of a disability under the ordinary conditions of daily life. Many symptoms are readily observable by a lay person. Accordingly, the lay evidence provided by the Veteran is unquestionably competent evidence. In this respect, the Board finds the Veteran's own reports of experiencing ringing of the ears to be at least as probative as the above-noted VA examiner's findings. As previously noted, this appeal turns on whether there is a nexus between the Veteran's current disability and his exposure to acoustic trauma in service. The Veteran has competently and credibly reported that he experienced tinnitus during and since service due to the in-service acoustic trauma. Accordingly, a nexus to service is established. In sum, the Board is satisfied that the evidence supporting a nexus between the Veteran's currently diagnosed tinnitus and his in-service acoustic trauma is in approximate balance with the evidence against a nexus. Therefore, the Veteran is entitled to service connection for his tinnitus. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). REASONS FOR REMAND In his June 2017 VA Form 9, and by way of a recent March 2022 informal hearing presentation, the Veteran reported his hearing loss had worsened. As noted above, he most recently underwent a VA examination to assess his disability in July 2015. As there is evidence of a worsening of the disability the claim must be remanded for an examination to determine the current severity of the condition. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Accordingly, this matter is REMANDED for the following actions: Afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran's service-connected bilateral hearing loss. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure the examiner provides all information required for rating purposes. If the examiner is unable to conduct the required testing or concludes the required testing is not necessary, he or she should be directed to clearly explain why that is so. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Fraser, 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.