Citation Nr: 18146733 Decision Date: 11/01/18 Archive Date: 10/31/18 DOCKET NO. 16-05 763A DATE: November 1, 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 bladder cancer, to include as due to exposure to herbicides, is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his tinnitus was at least as likely as not related to service. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1966 to March 1968, including service in the Republic of Vietnam. The Veteran died in September 2017 and the appellant, his surviving spouse, has been substituted for the Veteran for these pending claims. The Veteran contended that he has tinnitus due to his exposure to loud noise in service. The Board concludes that the Veteran had a diagnosis of tinnitus that began in or 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). In a VA treatment note dated in April 2001 the Veteran was noted to have a history of chronic tinnitus. The Veteran reported a history of tinnitus for 30 years that began during his military service. The Veteran indicated that he was exposed to loud noises from artillery and mine explosions. A VA examination in July 2013 included a negative nexus opinion because there was no diagnosis or of treatment for tinnitus found in the claims file and no mention of ear-related problems was found. A second July 2013 VA medical opinion included a negative nexus opinion as to tinnitus and hearing loss. The examiner’s rationale was that the disabilities were diagnosed 45 years after service with normal discharge physical examination in 1968. The examiner further stated that it was more likely related to his occupational or recreational noise exposure that was not described in the audio examination. At a hearing before a Veterans Law Judge in September 2017 the Veteran reported that he was exposed to loud noise of bombs and mines in service. He indicated that he had no hearing protection other than his fingers or cigarette buts in his ears. The Veteran’s spouse reported that the Veteran had ringing in his ears for a very long time. She stated that they had been married 40 years and he had complained about it for a very long time. The Veteran stated that he started noticing the ringing in his ears in the 1970s and that it became more prominent in the 1970s. He stated that when bombs and landmines went off he could not hear and then his hearing came back to him. He immediately had difficulty hearing after the explosions in service. Entitlement to service connection for tinnitus is warranted. The Veteran has been diagnosed with tinnitus. Although VA medical opinions have indicated that the Veteran’s tinnitus is not at least as likely as not related to his active service the rationale provided is inadequate. The first opinion references a lack of diagnosis or treatment for tinnitus and that there is no mention of ear problems. However, years before, in April 2001, the Veteran was noted to have chronic tinnitus. The second opinion relies upon a normal examination upon discharge and reports a lack of diagnosis for 45 years. The examiner also notes that it was more likely related to occupational or recreational noise exposure that was not described in the audio examination. The Board notes that the complaints in April 2001 were only approximately 33 years after separation and the examination does not explain the significance of the unspecified occupational or recreational noise exposure referenced as not described in the audio examination. The Veteran has competently and credibly reported that he was exposed to loud noise in service and that he has had tinnitus since service (in the April 2001 treatment note) or very shortly thereafter (at the hearing). In addition, the Veteran’s spouse reported that the Veteran complained about the ringing in his ears for a very long time. As such, the evidence is at least in equipoise that the Veteran’s tinnitus was incurred in service. Therefore, entitlement to service connection for tinnitus is granted. REASONS FOR REMAND The Board cannot make a fully-informed decision on the issue of entitlement to service connection for hearing loss because the VA medical opinions of record are inadequate. Negative nexus opinions provided after July 2013 VA examinations rely on a lack of hearing loss at separation from service, an inaccurate notation of the passage of time from service to diagnosis, and do not comment on the significance of unspecified occupational or recreational noise exposure. As such, the claim must be remanded for another VA medical opinion. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for bladder cancer, to include as secondary to exposure to herbicides, because an adequate medical opinion has not been obtained. Although the private provider finds that it is at least as likely as not the Veteran’s bladder cancer was related to exposure to herbicides in service, the provider did not provide adequate rationale for the opinion. Therefore, the issue must be remanded to obtain a VA medical opinion. The Veteran served in the Republic of Vietnam and, therefore, is presumed to have been exposed to herbicides in service. He was diagnosed with bladder cancer. In September 2017 a private provider reported that the Veteran’s “bladder cancer is at least as likely as not 50% probability of being connected to his exposure to Agent Orange during his time in service in Vietnam. There is no family history of bladder cancer.” The provider did not discuss the significance of the Veteran’s lack of family history of bladder cancer. The matters are REMANDED for the following action: Arrange for the Veteran’s claims file to be forwarded to appropriate VA examiners for review and medical advisory opinions. Based on review of the record, the examiners should respond to the following: (a) Is it at least as likely as not that the Veteran’s bilateral hearing loss was related to an in-service injury, event, or disease, including exposure to loud noise in-service. In rendering the opinion, the examiner must comment upon the Veteran’s report of difficulty hearing after explosions in service. (b) Is it at least as likely as not that the Veteran’s bladder cancer was related to an in-service injury, event, or disease, including in-service herbicide agent exposure. In rendering the opinion, the examiner must comment on the National Academies of Sciences (NAS) classification of bladder cancer as a disease that has “limited or suggestive evidence of an association” with exposure to herbicides. NAS, Veterans and Agent Orange: Update 2014. (Continued on the next page)   The examiners must provide rationale for any proffered opinion. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. M.E. LARKIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel