Citation Nr: 18149326 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 16-26 839 DATE: November 9, 2018 ORDER Entitlement to service connection for right ear hearing loss is granted. Entitlement to a rating in excess of 10 percent for tinnitus is denied. FINDINGS OF FACT 1. The evidence is in equipoise as to whether the Veteran has a right ear hearing loss disability that is etiologically related to a disease, injury, or event which occurred in service. 2. The Veteran’s service-connected tinnitus is assigned an initial 10 percent disability rating throughout the appeal period, the maximum authorized under 38 C.F.R. § 4.87, Diagnostic Code (DC) 6260 (2017). CONCLUSIONS OF LAW 1. Service connection for a right ear hearing loss disability is warranted. 38 U.S.C. §§ 1101, 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). 2. There is no legal basis for the assignment of a schedular rating in excess of 10 percent for tinnitus. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.87, DC 6260 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1969 to April 1971. The Veteran has been awarded in part the Vietnam Service Medal and Combat Infantry Badge. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an October 2014 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). The RO has entered an SSOC for the issue of entitlement to a compensable rating for left ear hearing loss. However, this issue is not yet certified to the Board, therefore, the Board does not adjudicate the issue herein. 1. Entitlement to service connection for right ear hearing loss is granted. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post- service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran contends that acoustic trauma during service caused his current bilateral hearing loss disability. The record reflects that the Veteran served in combat during active service, and the Veteran reports in-service noise exposure. Noise exposure is conceded. 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, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 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 VA examination reflects present hearing loss for VA compensation purposes is present. Thus, the question before the Board is whether the Veteran’s right ear hearing loss is more likely than not incurred in or aggravated by his military service; the Board concludes the evidence is in equipoise to support the Veteran’s claim. A January 2014 private examiner provided the positive nexus opinion that the Veteran’s right ear hearing loss was likely related to service. The examiner appeared for a VA examination in September 2014. The examiner stated it is not at least as likely as not that the Veteran’s current right ear hearing loss is resulting from service, noting that medical studies weigh against the likelihood of delayed onset hearing loss. However, the examiner also stated it was at least as likely as not that the Veteran’s current hearing loss is resulting from in-service noise exposure and the Veteran’s combat experience. Weighing the positive private examiner’s opinion with the VA examiners’ opinion that is unclear, and the Veteran’s combat experience and conceded acoustic trauma, the Board finds the evidence in equipoise; when the evidence is in equipoise, the Veteran prevails on the claim. The preponderance of the evidence is for the Veteran’s claim for right ear hearing loss and the doctrine of reasonable doubt is applicable in the instant appeal. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102. 2. Entitlement to a rating in excess of 10 percent for tinnitus is denied. The RO rated the Veteran’s tinnitus as 10 percent disabling pursuant to DC 6260, which provides that only a single 10 percent rating is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, DC 6260, Note (2) (2017). Because the rating of 10 percent for tinnitus is the maximum rating assignable under 38 C.F.R. § 4.87, DC 6260, the Veteran in this case is not entitled to a higher rating for his tinnitus disability. As the disposition of the claim is based on interpretation of the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. 2. Entitlement to service connection for testicular cancer, to include as secondary to herbicide exposure, is remanded. 3. Entitlement to service connection for diabetes mellitus type II is remanded. Regarding entitlement to service connection for an acquired psychiatric disorder, to include PTSD, a January 2014 private examiner’s opinion stated that the Veteran suffers from PTSD causally related to service. A separate examiner specified Axis I PTSD and depressive disorder, with PTSD symptoms as likely as not resulting from service. The Veteran appeared for a VA examination in September 2014, in which the examiner found no mental health diagnosis. Considering the conflicting evidence of record, a VA examiner’s opinion is requested to provide a clarifying opinion. Regarding entitlement to service connection for testicular cancer, a January 2014 private examiner noted that diagnosed testicular cancer was secondary to Agent Orange exposure in Vietnam and active service. However, testicular cancer is not a presumed disorder relating to herbicide exposure, and the examiner did not cite supporting medical evidence and rationale. A VA examiner’s opinion is requested to provide a medical opinion on the likelihood the Veteran’s testicular cancer is related to herbicide exposure and active service. Regarding entitlement to service connection of diabetes, a December 2013 private treatment note reflects assessment of diabetes. An October 2014 VA examination reflects no objective evidence supporting a diagnosis of diabetes mellitus type II upon examination. VA treatment records dated in 2016 reflect diabetes mellitus in the problem list. To clarify whether the Veteran has a diagnosis of diabetes, remand is required for a VA examiner’s opinion. The matters are REMANDED for the following action: 1. Obtain all outstanding VA clinical records and give the Veteran the opportunity to identify any private treatment records for association with the claims file. All records/responses received must be associated with the claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any psychiatric disorder. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s reported stressors. Please consider the conflicting evidence of record, as described above. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his testicular cancer. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including herbicide exposure. Please consider the January 2014 positive nexus opinion of record. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed diabetes. The examiner must opine whether the Veteran suffers from a current diagnosis of diabetes mellitus type II. 5. After the above is complete, readjudicate the Veteran’s claims. If a complete grant of the benefits requested is not granted, issue a supplemental statement of the case (SSOC) to the Veteran and his representative to afford them the opportunity to respond before the case is returned to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. M. Georgiev