Citation Nr: 18142666 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 14-41 611 DATE: October 16, 2018 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a right ankle disability is remanded. FINDING OF FACT The evidence is at least evenly balanced as to whether tinnitus was incurred in service. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1984 to February 1992, and from September 2001 to June 2002. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Under 38 U.S.C. § 1154 (b), the evidentiary burden for combat veterans with respect to evidence of in-service incurrence or aggravation of an injury or disease is reduced. See Collette v. Brown, 82 F.3d 389, 392 (Fed.Cir.1996). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA will consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to a determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for tinnitus The Veteran contends that his current tinnitus is related to his active service. The Veteran’s Certificate of Release of Discharge from Active Service (Form DD-214) shows that his occupation was that of a security officer. The Board also acknowledges a statement from the Veteran dated in February 2015, where he describes working in the flight line for four years, and being thus exposed to noise in service. He further reports having tinnitus since that time. See statement. The Board finds that the Veteran’s statements are both competent and credible. In light of the Veteran’s duties, his reported noise exposure is consistent with the circumstances of his active service, and is thus conceded. The Veteran was afforded a VA examination in May 2014, where he described his tinnitus as having its onset in 1985. The Veteran indicated that at first, his tinnitus was intermittent, and has evolved to being constant during the previous four years. The examiner indicated that there is no evidence of acoustic trauma or verifiable noise injury in service. The examiner opined that since the Veteran’s tinnitus has become constant over the previous four years, and this is a significant time after his separation from service, the Veteran’s tinnitus is less likely than not related to service. The examiner also noted the report of post-service occupational noise exposure, but the Veteran claimed he wore hearing protection. The Board finds the May 2014 VA examiner’s rationale to be deficient. Specifically, the examiner treats the onset of the Veteran’s tinnitus as the date he states it became constant, and fails to adequately address the Veteran’s contention that the tinnitus was at first intermittent in 1985. Stated otherwise, the examiner offers no explanation for the date attributed as the date of onset of the Veteran’s tinnitus. On the other hand, a private audiology examination dated in July 2014 reflects a different opinion. Specifically, the audiologist opined that it is at least as likely as not that the Veteran’s in-service noise exposure caused his tinnitus. The Veteran’s exposure to aircraft noise in service was cited in support of this conclusion. The Veteran is competent to report current tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that lay testimony may establish the presence of tinnitus because ringing in the ears is capable of lay observation). Furthermore, the Veteran is competent to report that his symptoms of tinnitus have continued since his service, and the Board has no basis upon which to question or doubt the credibility of his lay contentions. At a minimum, the Board finds that the evidence of record is in relative equipoise as to the onset of the Veteran’s tinnitus. Therefore, resolving reasonable doubt in the Veteran’s favor, the Board finds that it is at least as likely as not that the Veteran’s tinnitus is linked to service. Accordingly, service connection for tinnitus is warranted. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Board notes at the outset that the evidence of record is highly conflicting. The Veteran was afforded a VA examination to assess the nature and etiology of his claimed hearing loss in May 2014. The examiner noted that the entire claims file was reviewed and conducted audiological testing. Speech discrimination scores were at 94 percent bilaterally, and puretone thresholds in decibels averaged 9 in the right ear, and 15 in the left ear, with auditory thresholds under 26 decibels for all tested frequencies. Indeed, the examiner noted normal hearing bilaterally. Furthermore, the examiner noted that the Veteran’s hearing remained within normal limits throughout his military service, as no significant threshold shifts were noted. Finally, it was also noted that no evidence was found to indicate the onset of hearing loss within a reasonable time after separation from active service. The results of that examination reflect that the Veteran does not meet the VA criteria for a hearing loss disability as set forth above. See 38 C.F.R. § 3.385. However, also of record is an audiogram and disability benefits questionnaire from a private audiologist, signed in July 2014. That examination reflects significantly different audiometric testing results, and offers a positive nexus opinion. It was noted that the Veteran’s military separation examination and civilian medical records were reviewed. Significantly, audiometric testing showed average puretone thresholds at the applicable frequencies were 44.25 decibels in the right ear, and 43.75 decibels in the left ear. Furthermore, speech discrimination scores were 90 percent in the right ear, and 92 percent in the left ear. This private provider opined that the Veteran’s hearing loss is at least as likely as not related to service, reasoning that the Veteran was exposed to naval aircraft noise in service. In addition to the aforementioned private questionnaire, a January 2014 private audiogram is also of record. This audiogram too, reflects bilateral sensorineural hearing loss, with speech discrimination scores of 92 percent in the right ear, and 88 percent in the left ear. The Board acknowledges that this audiogram was noted by the May 2014 VA examiner as having been reviewed. The January 2014 audiogram does not contain an etiological opinion, yet clearly diagnoses the Veteran with bilateral hearing loss. The July 2014 private examination also clearly diagnoses the Veteran with bilateral hearing loss. However, the opinion that the Veteran’s hearing loss is related to service is inadequate as it is conclusory and not well supported. The reasoning that the Veteran’s hearing loss is related to service simply because he was exposed to aircraft noise in service does not adequately address the question of nexus. Finally, while the May 2014 VA examination concludes there is no hearing loss disability, as well as no nexus, and contains a rationale based on these findings, there is simply too great a gap between these results and the two private audiometric findings of record, which are less than five months apart. The conflicting findings must be reconciled. 2. Entitlement to service connection for a right ankle disability. 3. Entitlement to service connection for a left ankle disability. The Veteran claims entitlement to service connection for right and left ankle disabilities. Specifically, the Veteran claims he was treated for a bilateral ankle condition in service, and has had it ever since. See Form 9. The Board notes that the Veteran was not afforded a VA examination to assess the nature and etiology of his claimed ankle disabilities. A medical examination or medical opinion is necessary in a claim for service connection when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2) (2012); 38 C.F.R. § 3.159 (c)(4)(i) (2018). The McLendon elements are satisfied with regard to the Veteran’s bilateral ankle disability. Regarding the first element, the Veteran has a diagnosed current disability; he was diagnosed with bilateral ankle degenerative joint disease in a November 2013 private disability benefits questionnaire. Regarding the second element, although the Board recognizes that there is no record of treatment, complaint or diagnosis of any ankle condition in service treatment records, the Board finds that there is indication of in-service exertion of the Veteran’s ankles. Specifically, the Board acknowledges the Veteran’s MOS of security officer. The Board also notes that the Veteran is service-connected for a bilateral foot disability – and the basis for the VA foot examiner’s positive nexus opinion was the Veteran’s in-service duties, including prolonged standing, lifting, kneeling, squatting and running. See April 2014 VA feet examination. Regarding the third and fourth elements, there is an indication that the Veteran’s ankle disabilities could be related to service, but insufficient evidence of record by which the Board can make a decision. There is in fact a private medical opinion of record relating the Veteran’s ankle disability to service. See July 2014 private treatment note from Dr. S. L. Specifically, Dr. S.L. states it is more likely than not that the Veteran’s military injuries have resulted in bilateral ankle arthritis and chronic pain. However, there is no supporting rationale for this conclusory opinion. As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion. The matter is REMANDED for the following action: 1. Obtain any outstanding VA and private treatment records, and ask the Veteran to identify the providers of all evaluations and treatment he has received since service, and to submit authorizations for VA to secure complete records of any such private treatment. 2. Arrange for the Veteran to undergo a VA audiological examination regarding the nature and etiology of his bilateral hearing loss. The Veteran’s record must be reviewed by the examiner, and all evidence of record must be addressed. The audiologist must determine whether the Veteran has a current diagnosis of hearing loss, or has had at any time during the appeal period. If hearing loss is diagnosed, the examiner must opine whether it is at least as likely as not (a 50 percent or higher probability) that the Veteran’s bilateral hearing loss is etiologically related to service, to include as due to exposure to noise trauma. The examiner must specifically address the conflicting findings of the January 2014 private audiogram, the May 2014 VA examination and the July 2014 private disability benefits questionnaire, and reconcile these findings. All opinions must include a thorough rationale with citation to factual data or medical literature, as deemed appropriate. 3. Afford the Veteran a VA examination regarding the nature and etiology of his bilateral ankle disability. The examiner should note in the report that the entire claims file has been reviewed, to include any new records recently obtained. Following the examination of the Veteran and a review of the claims file, which includes VA and private treatment records and the January 2014 private examination as well as July 2014 private medical opinion, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran has a currently diagnosed right and/or left ankle disability that had its onset in, or is otherwise related to any incident of his service, to include his service duties. All opinions must be supported by a clear rationale and reasoning behind the opinion that include consideration of the Veteran’s statements, the particulars of his medical history and relevant medical literature. The examiner is reminded that the fact that an ankle injury may not have been recorded in the Veteran’s service treatment records does not serve as a bar to the service connection claim. The examiner must specifically discuss the private physician’s July 2014 statement in the context of any negative opinion. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G.C., Associate Counsel