Citation Nr: 18151378 Decision Date: 11/20/18 Archive Date: 11/16/18 DOCKET NO. 15-18 746A DATE: November 20, 2018 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REFERRED In a June 2015 VA Form 9, the Veteran raised a claim of entitlement to service connection for a balance disorder. This issue has not been developed or certified for appellate review. Hence, it is referred to the RO for appropriate action, to include sending the Veteran the appropriate application for benefits. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran’s current tinnitus is related to inservice noise exposure. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, tinnitus was incurred during active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1957 to March 1961. The June 2015 statement of the case included the issue of entitlement to a rating greater than 20 percent for residuals of a left clavicle fracture. The Veteran did not include this issue in his VA Form 9. Thus, this issue is not perfected for appellate review, and it is not for consideration. In July 2018, a videoconference hearing was held before the undersigned. Entitlement to service connection for tinnitus In April 2014, VA denied entitlement to service connection for tinnitus. The Veteran disagreed and perfected this appeal. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection for certain specified chronic diseases, including tinnitus, may be established on a presumptive basis by showing that such disease manifested itself to a degree of 10 percent or more within one year from the date of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). The Veteran reported significant noise exposure during service while working on the flight decks of aircraft carriers. Service personnel records show the Veteran was an aviation machinist’s mate engine mechanic. His reports of excessive noise exposure are consistent with the circumstances of his service and inservice acoustic trauma is established. Evidence of record shows a diagnosis of tinnitus and the question for the Board is whether the current disability is related to active service. Service treatment records are negative for complaints or findings of tinnitus. The Veteran underwent a VA examination in March 2014. He reported constant, bilateral, ringing type tinnitus, but was unable to identify date of onset. The examiner opined that tinnitus was less likely than not caused by or a result of military noise exposure. The examiner noted there was no direct evidence of tinnitus during service. The examiner also was unable to identify a clear nexus between the onset of tinnitus and service. The examiner further cited to a study from the Institute of Medicine (2006) which states that “as the interval between a noise exposure and the onset of tinnitus lengthens, the possibility that tinnitus will be triggered by other factors increases.” In his June 2015 VA Form 9, the Veteran said he could not provide an answer regarding onset at the time of the examination, but after much concentration and thinking back, he is almost certain he had ringing in his ears while in the Navy. At the July 2018 videoconference hearing, the Veteran testified that he experienced ringing in his ears while working on the flight deck and he remembered putting his fingers in his ears when he would come off the flight deck. Tinnitus is a disorder that can be observed by a lay person and the Veteran is competent to report he experienced ringing in his ears during service. Charles v. Principi, 16 Vet. App. 370 (2002). The Board acknowledges the negative VA opinion, which was based at least in part on the Veteran not identifying the onset tinnitus. He subsequently provided testimony regarding inservice incurrence and the Board finds no reason to doubt his credibility. Hence, the evidence is at least in equipoise and resolving reasonable doubt in his favor, service connection is warranted. 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss In April 2014, VA denied entitlement to service connection for bilateral hearing loss. The Veteran disagreed and perfected this appeal. The Veteran underwent a VA examination in March 2014, which confirmed a current hearing loss disability for VA purposes. 38 C.F.R. § 3.385. The examiner discussed service medical records indicating that the May 1957 enlistment examination contained only a whispered voice test, which was not a valid measure of hearing acuity and would not be used when rendering an opinion. She further stated that the March 1961 separation audiogram showed normal hearing from 250 to 8000 Hertz bilaterally. Following review and evaluation, to include consideration of an Institute of Medicine study which found a delayed-onset hearing loss due to noise exposure to be unlikely, the March 2014 examiner opined that based on this objective evidence the Veteran’s current hearing loss was less likely as not caused by or a result of military noise exposure. On review, the Board finds this opinion inadequate. First, while the examiner stated the enlistment examination was not a valid measure of hearing acuity and would not be used, she specifically referenced it in her rationale. Second, there is no indication the examiner considered the converted values on audiometric testing at separation. In this regard, prior to November 1967, audiometric test results were reported by the service department in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). Considering the foregoing, the Board finds that an addendum opinion is needed. Additionally, the Veteran has submitted several articles suggesting that a noise induced hearing loss can be immediate or take a long time. Hence, the reviewing examiner should consider these opinions, and address whether there is any medical basis for delayed onset hearing loss in this case. Finally, the Board notes that the United States Court of Appeals for Veterans Claims has held that regardless of in-service test results, the Veteran may establish entitlement to service connection for a current hearing loss disability by submitting competent evidence that the disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Hence, the Veteran is advised that he may submit a medical statement from an audiologist or other qualified medical professional to support his claim. In this regard, however, the Veteran is cautioned that the Court has also found physicians opinions that service "could have" precipitated a disability to be too speculative. Bloom v. West, 12 Vet. App. 185, 186-187 (1999). Rather, examiners should opine whether it is at least as likely as not that a claimed disorder is related to service. The matter is REMANDED for the following action: 1. Return the March 2014 VA hearing loss examination for an addendum prepared by a qualified audiologist. The Veteran’s VBMS and Virtual VA/Legacy folders must be available for review. The audiologist is to opine whether the Veteran’s current hearing loss disability is at least as likely as not related to inservice noise exposure. In making this determination, the examiner is reminded that prior to November 1967, inservice audiometric results were reported in standards set forth by the American Standards Association (ASA) and the audiometric findings at separation in March 1961 should be converted to International Standards Organization (ISO)-American National Standards Institute (ANSI) to facilitate accurate data comparison. Further, the audiologist is advised that the absence of a hearing loss disability for VA purposes during service is not always fatal to a service connection claim. The examiner is specifically requested to discuss whether there is any medical basis for delayed onset hearing loss. A complete, well-reasoned rationale must be provided for any opinion offered. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Carsten, Counsel