Citation Nr: 1801764 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 17-04 671 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD B. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1958 to February 1962. This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2015 rating decision of the Phoenix, Arizona, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at a hearing before the Board in November 2017. A transcript is of record. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, the Veteran's bilateral hearing loss disability is causally related to his active service. 2. Resolving all doubt in the Veteran's favor, the Veteran's tinnitus is causally related to his active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral hearing loss disability have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The medical evidence of record, including the Veteran's January 2015 VA examination, indicates that the Veteran suffers from a bilateral hearing loss disability and tinnitus. The Veteran's November 1958 Report of Medical Examination at entrance contains no audiometer results, but does indicate that the Veteran recorded scores of 15 out of 15 for both ears during whisper voice testing. The Veteran's December 1961 Report of Medical Examination on separation contains no audiometer results or whisper voice testing. The author of the January 2015 VA examination report opined that it was "not possible to determine if the [Veteran's] hearing loss [was] related to in[-]service noise exposure without resorting to mere speculation," due to the absence of audiological testing as part of the Veteran's separation examination and the Veteran's post-service noise exposure. The examiner provided a similar rationale when discussing the Veteran's tinnitus. The Veteran submitted lay statements describing in-service traumatic noise exposure as part of his April 2015 notice of disagreement. The author of a December 2016 addendum opinion concurred with the findings contained in the January 2015 VA examination report, and opined that it was not "possible to determine the etiology of the [Veteran's] hearing loss and tinnitus without resort to mere speculation." The author of a January 2017 private medical opinion letter concluded that, given the Veteran's "limited other unprotected noise history," and in-service noise exposure, the Veteran's bilateral hearing loss disability and tinnitus were at least as likely as not related to his service. VA's duty to assist requires that VA provide a medical examination when there is (1) competent evidence of a current disability; (2) evidence establishing that an event, injury, or disease occurred in service; and (3) an indication that the disability may be associated with the veteran's service; but (4) insufficient competent medical evidence on file to make a decision on the claim. See 38 U.S.C. § 5103A(d)(2); see also McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The requisite examination must include a "nonspeculative determination as to the degree of likelihood that a disability was caused by an in-service disease or incident to constitute sufficient medical evidence on which the Board can render a decision with regard to nexus." Id. at 85. The Board notes that both McLendon and the applicable law require "some assessment of probability, as opposed to a definitive statement of the cause of the disabilities." Jones v. Shinseki, 23 Vet. App. 382, 388 (2010). As stated in Jones, the Board may not rely on an examiner's conclusion that an etiology opinion would be speculative unless the examiner has explained "the basis for such an opinion," or the basis is otherwise "apparent in the Board's review of the evidence." Id. at 390. The phrase "without resort to mere speculation" may be used after the examiner has considered "all procurable and assembled data," performed any necessary research in relevant medical literature, and identified the precise facts that cannot be determined. Id. The use of the phrase "without resort to mere speculation," or similar phraseology, "should reflect the limitations of knowledge in the medical community at large and not those of a particular examiner." Id. In the present case, the author of the January 2015 examination report failed to provide an adequate rationale for their inability to render an opinion as to the probability of a cause for the Veteran's bilateral hearing loss disability and tinnitus. It is unclear from the opinion what information would be required, aside from hypothetical in-service audiometer results, to determine, at least to some discrete probability, whether the Veteran's service resulted in his claimed disabilities. The December 2016 addendum opinion is inadequate for similar reasons. Given the evidence of record, including testimony provided during the November 2017 hearing, service connection for a bilateral hearing loss disability and tinnitus is warranted. See 38 C.F.R. §§ 3.102, 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (setting forth criteria for direct service connection). ORDER Service connection for a bilateral hearing loss disability is granted. Service connection for tinnitus is granted. ____________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs