Citation Nr: 18152173 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 16-38 866 DATE: November 21, 2018 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT The Veteran’s tinnitus is etiologically related to service. CONCLUSION OF LAW The criteria to establish service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1969 to July 1971. The Veteran appeals a September 2013 rating decision by the Agency of Original Jurisdiction (AOJ) denying entitlement to service connection for tinnitus and bilateral hearing loss. A Veteran is entitled to Department of Veterans Affairs (VA) disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Under 38 C.F.R. § 3.303(b), claims for chronic diseases enumerated in 38 C.F.R. § 3.309(a) benefit from a relaxed evidentiary standard. See Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013). Tinnitus has been interpreted as such a disease. To show a chronic disease in service, the record must contain a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013). The first Shedden element is met. The Veteran has tinnitus. See July 2013 VA examination report. The second Shedden element is also met. The Board finds the Veteran had loud noise exposure as part of his MOS and during field exercises. The Veteran has also credibly stated that he experienced symptoms of tinnitus in service. See, e.g., August 2016 Veteran Lay Statement. As such, the crux of this case centers on whether the Veteran’s tinnitus was attributable to time spent in service. In support of the claim, the Veteran contends the ringing in his ears began during service. Id. He further contends he made complaints of ringing in his ears during service, but those complaints were never documented. Id. In contrast, at a July 2013 VA examination, the VA clinician determined the Veteran’s tinnitus was not attributable to active service. She stated the Veteran’s record is silent for tinnitus. The July 2013 VA examiner relied primarily on the absence of contemporaneous medical records to render a negative nexus opinion; such an opinion is inadequate for adjudicative purposes. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). The Veteran has maintained consistently that his current tinnitus symptoms began in service. See, e.g., August 2016 Veteran Lay Statement. Because tinnitus is a condition capable of lay observation, the Veteran is competent to testify as to his observed symptoms. The Board finds that the Veteran’s assertions are credible and finds there is adequate evidence of record establishing that the Veteran’s tinnitus began in service and has continued to the present. Accordingly, the Board grants service connection for tinnitus. REASONS FOR REMAND The Veteran was afforded a VA examination in July 2013 to assess the etiology of his bilateral hearing loss. However, the Board finds that the clinician’s opinion is inadequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 302, 312 (2007). The July 2013 VA clinician found the Veteran’s entrance and separation hearing tests “both show normal hearing for 500 hz through 6000 with no significant threshold shift.” See July 2013 VA examination report. As such, the clinician concluded the Veteran separated service “with normal hearing for both ears.” Id. However, the clinician did not discuss whether the American Standards Association (ASA) or International Standards Organization American National Standards Institute (ISO-ANSI) standard was used in determining whether there was a threshold shift in service. The Veteran’s July 1971 separation audiogram chart is marked with the tag “ASA 1951” in the bottom left corner. However, the Veteran’s June 1968 entrance audiogram chart has no such specification. The Board emphasizes that a correct evaluation of service audiometric findings requires that the ASA standard be converted to the ISO-ANSI standard. Such conversion could impact whether the Veteran had bilateral hearing loss or a significant threshold shift in service. Therefore, as it is unclear which standard the clinician used during either audiometric reading, and the VA clinician did not explain whether conversion to ISO-ANSI standards would indicate a significant threshold shift, the July 2013 VA opinion is inadequate and a new etiology opinion must be obtained. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records relevant to treatment the Veteran received for his bilateral hearing loss that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 2. Obtain an opinion from an appropriately qualified VA clinician to determine the nature and etiology of the Veteran’s bilateral hearing loss. The evidentiary record, including a copy of this remand, must be made available to and be reviewed by the clinician. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After the record review and examination of the Veteran, if deemed necessary, the reviewing clinician is asked to respond to the following inquiry: Is it at least as likely as not that the Veteran’s bilateral hearing loss was incurred in, or is otherwise related, to his time on active service? In rendering this opinion, the clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the clinician rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The clinician is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. Further, the clinician is to discuss the June 1968 and July 1971 audiometer and audiogram charts. Specifically, the clinician is to discuss which standard (ASA or ISO-ANSI) was used and make the appropriate conversions in rending the opinion. If it is unclear which standards were used, the data is to be considered under both ASA and ISO-ANSI standards, and clinician should discuss whether the Veteran had hearing loss or significant threshold shifts in service under both standards. For the purposes of this opinion, the clinician is to assume the Veteran is credible as to the facts surrounding his bilateral hearing loss. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Zheng, Associate Counsel