Citation Nr: 1804428 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 14-38 943A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for right ear hearing loss disability. 2. Entitlement to service connection for left ear hearing loss disability. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. Yacoub, Associate Counsel INTRODUCTION The Veteran had active service from February 1963 to February 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Jurisdiction over the case was subsequently returned to the VA RO in Waco, Texas. The Veteran requested a hearing before a member of the Board in his November 2014 substantive appeal. However, in a May 2016 statement, the Veteran withdrew his request for a hearing before the Board. The hearing request is therefore deemed withdrawn and there is no bar to proceeding with the appeal. This case was previously before the Board in August 2017, at which time the issues currently on appeal were remanded for additional development. The case has now been returned to the Board for further appellate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue of entitlement to service connection for right ear hearing loss disability is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's left ear hearing loss disability and tinnitus are etiologically related to acoustic trauma sustained in active service. CONCLUSIONS OF LAW 1. Left ear hearing loss disability was incurred in active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). 2. Tinnitus was incurred in active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran asserts that he has left ear hearing loss and tinnitus as a result of his active service. Specifically, he asserts that acoustic trauma sustained from his proximity to heavy artillery fire, weapons testing, and other hazardous noise exposure during active service resulted in decreased hearing acuity and tinnitus. A review of the Veteran's DD Form 214 shows that he had a military occupational specialty (MOS) of Infantry Fire Crewman. Based on the Veteran's MOS, the circumstances of his service, and the Veteran's assertions, the Board concedes exposure to hazardous noise and subsequent acoustic trauma while in active service. Service treatment records (STRs) show that the Veteran was not diagnosed with a hearing loss disability for VA purposes or tinnitus while he was in active service. However, the Veteran was provided hearing evaluations at enlistment in February 1963 and separation in December 1965, and a decrease in hearing acuity was noted between the two examinations. Furthermore, the Board notes that the Veteran is competent to report when he first experienced symptoms of decreased hearing acuity and tinnitus and that they have continued since service. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran to be credible in this respect. In July 2013, the Veteran was afforded a VA audiology evaluation. At that time, the Veteran reported in service noise exposure. He reported current symptoms of tinnitus and left ear hearing loss disability. Audiometric testing revealed that the Veteran had left ear hearing loss disability for VA purposes. See 38 C.F.R. § 3.385 (2017). The examiner diagnosed left ear hearing loss disability and tinnitus, but opined that the Veteran's left ear hearing loss and tinnitus were less likely than not due to his active service since the Veteran's hearing thresholds at enlistment and separation were within normal limits. In September 2017, the Veteran's claims file was returned to the VA examiner for an addendum opinion wherein the examiner opined once more that because the Veteran's enlistment and separation examinations suggested normal hearing bilaterally, and no significant threshold shifts were documented, the Veteran's hearing loss was less likely than not as due to his active service. With respect to tinnitus, the examiner opined that tinnitus is a disability which sometimes occurs with hearing loss but does not cause or aggravate hearing loss. The examiner went on to state that while there are many possible causes of tinnitus, an audiologist can only address the etiology as it relates to auditory system injuries, and that since no objectively verifiable auditory injury was noted, it was less likely than not that the Veteran's tinnitus was as due to his active service. In October 2017, another addendum opinion was obtained acknowledging and addressing current medical studies regarding damaging effects of noise exposure on the auditory system and delayed onset hearing loss. The examiner restated the prior opinion that it was less likely as not that the Veteran's left ear hearing loss disability was caused by or a result of an event in active service. In this regard, the examiner noted that the Veteran did not sustain a significant threshold shift while in active service. Additionally, the examiner noted that claims of delayed onset of noise induced hearing loss were precluded by the Institute of Medicine (IOM) study in 2005, in which it was noted that there was not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss could develop much later in one's lifetime, long after the cessation of that noise exposure. The study went on to report that although definitive studies to address that issue had not been performed, based on anatomical and physiological data available on the recovery process following noise exposure, it was unlikely that such delayed effect occurred. The VA examiner discounted more recent medical studies noted as they were based on testing performed on laboratory animals and that findings in rodent studies could not necessarily be extrapolated to human subjects. Based on that information, the examiner noted that the IOM study remained the most comprehensive review regarding the effects of noise exposure in our population of Veterans. The Board finds that the July 2013, September 2017, and October 2017 VA medical opinions of record are not adequate for adjudication purposes. With regard to the July 2013 opinion, the absence of documentation of, treatment for, or complaints of hearing loss during and after service cannot serve as the basis of a negative etiology opinion. In addition, the VA examiner did not adequately consider the Veteran's lay statements regarding onset of symptomatology and failed to address the significance of his MOS. Lastly, the examiner seemingly did not consider the marked decline in hearing acuity noted in the Veteran's enlistment and separation examinations. Accordingly, as the VA opinion is inadequate, it cannot serve as the basis of a denial of entitlement to service connection. With regard to the September 2017 and October 2017 VA addendum opinions, the Board finds that they are also not adequate for adjudication purposes. In this regard, the September 2017 and October 2017 VA examiner heavily relied on the 2005 study regarding delayed onset noise induced hearing loss conducted by the IOM as the basis for the negative opinion provided. However, a review of that study shows that it was not definitively found that delayed onset hearing loss was not possible. Therefore, reliance on that study alone is insufficient to support a negative etiology opinion. Further, in the October 2017 addendum opinion, more recent laboratory studies were identified, yet discounted as they were performed on rodents and as such, the data could not necessarily be extrapolated to humans. Additionally, the September 2017 and October 2017 VA examiner also failed to adequately consider the Veteran's lay statements regarding onset and continuity of his symptoms. Therefore, as the opinions are not adequate, they cannot serve as the basis of a denial of entitlement to service connection. The Board notes that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F .3d 1331 (Fed. Cir. 2006). The Veteran is competent to identify reduced hearing acuity and tinnitus and his statements have been found credible. In sum, the Board has conceded acoustic trauma during active service. The Veteran has competently and credibly reported that he first experienced symptoms of hearing loss and tinnitus in active service and that those symptoms have continued since that time. The Veteran was shown to have left ear hearing loss disability for VA purposes and a current diagnosis of tinnitus. While there are negative VA medical opinions of record, those opinions have been found inadequate and are not probative evidence against the claim. Accordingly, the Board finds that the evidence for and against the claims of entitlement to service connection for left ear hearing loss disability and tinnitus is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for left ear hearing loss disability and tinnitus is warranted. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for left ear hearing loss disability is granted. Entitlement to service connection for tinnitus is granted. 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. A review of the record fails to show audiometric testing results consistent with a diagnosis of right ear hearing loss disability for VA purposes. 38 C.F.R. § 3.385. However, the Veteran was last afforded a VA audiogram in July 2013, and given the progressive nature of hearing loss and the Veteran's significant in-service noise exposure, the Board finds that the Veteran should be afforded a new VA audiology evaluation to determine whether he has a diagnosis of right ear hearing loss for VA purposes. In addition, current treatment records should be identified and obtained before a decision is made regarding the remaining issue on appeal. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Identify and obtain any outstanding, pertinent VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA audiology evaluation to determine whether he has right ear hearing loss disability for VA purposes. Any indicated tests and studies should be performed. 3. Then, readjudicate the remaining claim on appeal in light of the grant of entitlement to service connection for left ear hearing loss disability herein. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs