Citation Nr: 18140346 Decision Date: 10/03/18 Archive Date: 10/02/18 DOCKET NO. 16-26 853 DATE: 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for a bilateral hearing loss disability. October 3, 2018 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran’s tinnitus is related to his active service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States navy from May 1972 to August 1974. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In his June 2016 substantive appeal, the Veteran requested a Board videoconference hearing. The Board notes that the Veteran’s representative withdrew the request for a hearing in a March 2018 Waiver of Request for Hearing. Under these circumstances, the regulations consider the hearing request to have been withdrawn. 38 C.F.R. § 20.704(e) (2017). The matter of entitlement to service connection for PTSD was granted in an April 2016 rating decision, and the Veteran subsequently appealed the disability rating assigned. This matter is currently pending further development at the RO and, as such, will be the subject of a separate Board decision. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In this case, as to the claim of service connection for tinnitus, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Entitlement to service connection for tinnitus The Veteran contends that his diagnosed tinnitus is related to his active duty service. The Board concludes that the Veteran has a current diagnosis of tinnitus that is related to his active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). An August 1973 Report of Enlisted Performance Evaluation notes the Veteran's duties included: "Logs in, screens and expedites uncomplicated treatment to patients. Does dressing changes, simple suturing (surgical procedures under Medical Officer's supervision), does ECG's and does cast room procedures. Stands ER watches." It was further noted that the Veteran had been assigned to physical therapy and the emergency room. In an October 2011 statement in support of claim, the Veteran asserted that serving as a corpsman on a hospital ship "exposed [him] to daily acoustic trauma in the form of working adjacent to loud noise equipment inherent to naval vessels of the period." The Veteran then stated that he was not provided "adequate hearing protection" and has suffered from "hearing loss and ringing in both ears ever since [his] time in the Navy". In an April 2014 statement in support of claim, the Veteran stated that while aboard the Repose he was "constantly exposed to loud humming of electric lighting, air conditioning and heating units, loud banging of workers upon the steel hull and frame as well as the sound of electric and diesel motors." The Veteran asserted that he was assigned to a physical therapy department within the Hydrotherapy section and that electronic water propulsion motors on immersion tanks "made a very intense high pitched sound coming from the electronic windings in the motor itself." The Veteran further stated that the vibration from these motors made a "roaring" water sound. The Veteran then stated that all this was contained in a small room in which he worked 8-hour day, 5 days a week and that the "constant high pitched sounds of the electric motors, roar of the water propulsion and vibration of the steel tanks were very painful to [his] ears", both of which would "ache and have a high pitched ringing" at the end of each day. The Veteran stated that he was provided no hearing protection for this. The Veteran further asserted that when he was transferred to the emergency department he would have to use hand held electronic saws to remove plaster casts and that these produced an "extremely high vibration" as well as a "high pitched sound" which was extremely painful to his ears and caused them to ring. The veteran then stated that he was transferred to the Naval Regional Medical Center in Long Beach in 1974, upon which he was again exposed to hydrotherapy equipment which was very painful to his ears, causing high pitched ringing. The Veteran asserted that he was no provided any hearing protection for any assignment. 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. See 38 C.F.R. § 3.159 (a)(2) (2017). This may include some medical matters, such as describing symptoms, but does not necessarily include opinions on the cause or etiology of any current disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, the Board finds that the Veteran is competent to testify when the symptom of ringing in his ears began and for how long it has occurred. A layperson may competently testify as to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). The Veteran was afforded a VA hearing loss and tinnitus examination in April 2016. The Veteran reported working as a corpsman while in the Navy and asserted exposure to loud hospital and ship noise while in service which consisted of: “emergency room noise, cast cutting tools, dremels, AC and lighting noise, banging, hydrotherapy unit jet noise, motors.” The Veteran further reported post-service careers in police and firefighting, though contends these were not noisy. The examiner opined that the Veteran’s tinnitus is less likely than not related to his military service, stating “I think that it is unlikely that the Veteran’s hearing was damaged by military noise, I do not think his tinnitus is correlated to military acoustic trauma.” The Board notes that the examiner provided no rationale for his conclusions. As such, the Board finds this examination to be inadequate and of no probative value. Here, the evidence shows that the Veteran was exposed to loud noises while in the service and the Veteran has credibly testified that he first experienced ringing in his ears in service which continues to this day. The Board finds that the evidence is at least in equipoise as to whether the Veteran's current tinnitus is related to his military service. The benefit of the doubt rule is therefore for application. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). REASONS FOR REMAND Entitlement to service connection for a bilateral hearing loss disability is remanded. A January 2014 private audiological evaluation from Hometown Hearing & Audiology notes that the Veteran reported being exposed to generators, medical saws and hydrotherapy machine motors while onboard a Medical ship, as well as firing weapons during basic training. The Veteran also reported having a constant ringing in his ears ever since his service. The Veteran further reported post-service careers in policing and firefighting, but asserted wearing mandatory hearing protection when required. Pure tone testing revealed mild to moderate notched sensorineural hearing loss bilaterally. The audiologist opined that it is more likely than not that the Veteran’s hearing loss and tinnitus are related to his military noise exposure, with a rationale that her “opinion is based on case history, notched configuration of hearing loss, and onset of tinnitus.” The audiologist acknowledged the Veteran’s post-service careers in policing and firefighting and opined that these worsened his hearing loss. The Board notes that the January 2014 private audiological opinion was based on a medical history as given by the Veteran. However, a November 2012 VA treatment record notes "hearing loss right ear since illness 10 years ago". As the private audiologist did not discuss or even acknowledge this, the Board finds this opinion to be of no probative value. The Veteran was afforded a VA hearing loss and tinnitus examination in April 2016. Bilateral sensorineural hearing loss was diagnosed. The Veteran reported working as a corpsman while in the Navy and asserted exposure to loud hospital and ship noise while in service which consisted of: “emergency room noise, cast cutting tools, dremels, AC and lighting noise, banging, hydrotherapy unit jet noise, motors.” The Veteran further reported post-service careers in police and firefighting, though contends these were not noisy. The examiner opined that the Veteran’s bilateral hearing loss was less likely than not due to his military service with the rationale that “[i]t is more likely due to aging or post military occupational noise.” Here, the Board notes that the examiner’s rationale is actually a speculative conclusion and, as such, finds that this opinion is of no probative value. In light of the above, the Board finds that a remand for a new VA examination is necessary. The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from January 2018 to the Present. 2. After, and only after, completion of step one above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral hearing loss disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including exposure to acoustic trauma. The examiner must also opine as to whether it at least as likely as not (1) began during active service, (2) manifested within [presumptive period] after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. The examiner must address the Veteran’s contentions of exposure to acoustic trauma from medical equipment, shipboard noises and weapons fire during basic training. The examiner must address the Veteran’s contention that he has suffered from hearing loss since his service in the Navy. The examiner’s attention is invited to a November 2012 VA treatment record which notes "hearing loss right ear since illness 10 years ago". The examiner’s attention is invited to the Veteran’s April 2014 statement in support of claim. The examiner’s attention is invited to an article submitted by the Veteran titled “Synaptopathy in the noise-exposed and aging cochlea: primary neural degeneration in acquired sensorineural hearing loss.” The examiner’s attention is invited to an article submitted by the veteran titled “Adding Insult to Injury: Cochlear nerve Degeneration after “Temporary” Noise-Induced Hearing Loss.” All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. 3. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. P. Keeley, Associate Counsel