Citation Nr: 18153421 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-51 506 DATE: November 27, 2018 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT Resolving all doubt in the Veteran’s favor, tinnitus is etiologically related to his period of active service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1968 to August 1970. The Veteran failed to appear for his Board hearing scheduled in July 2018. 1. Entitlement to service connection for tinnitus Generally, to establish service connection the evidence 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 in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran, as a layperson, is competent to report on matters observed or within his personal knowledge. Therefore, the Veteran is competent to attest to the date of onset of his tinnitus symptoms, i.e., ringing in the ears. Moreover, tinnitus-or, ringing in the ears-is the type of disability that may be established on the basis of lay evidence as it is subjective in nature. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran contends that his bilateral tinnitus is related to his military service. On his application for compensation, the Veteran indicated that his tinnitus began in January 1970. The Veteran’s specialty title was a flight operation coordinator which is consistent with acoustic trauma. See DD214. Although the April 2014 VA examiner opined that the Veteran’s tinnitus was less likely than not caused by or a result of military noise exposure, the Board finds the Veteran’s statements as to the onset of his tinnitus in service to be competent and credible. Therefore, resolving reasonable doubt in the Veteran’s favor, service connection for tinnitus is established. See 38 U.S.C. § 5107, 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends that his bilateral hearing loss is due to military service. Specifically, the Veteran expressed that during his time in the Army, he was assigned to flight operations and was exposed to engine noise from planes on a daily basis. See November 2013 Statement in Support of Claim. The Veteran stated that after service, he was employed in the restaurant business and was not exposed to noise that would have affected his hearing. Id. The Veteran was afforded a VA examination in April 2014. The Veteran has a current diagnosis of bilateral hearing loss. The examiner opined that the Veteran’s bilateral hearing loss was less likely as not caused by or a result of an event in military service. The examiner noted that the Veteran’s separation whisper voice test was normal but noted that the whisper test is insensitive to high frequency hearing loss. The examiner expressed that the Veteran had a significant history of noise exposure with recreational activities over a period of years. The examiner stated that “as frequency specific hearing tests using calibrated audiometries were not available at separation,” an association of cause cannot be established and therefore the examiner opined that the Veteran’s hearing loss is less likely as not caused by or the result of military service. The Board finds that the April 2014 examiner’s negative opinion is inadequate because it is based on an inaccurate factual premise and does not consider the Veteran’s lay statements regarding continuity of symptomatology. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based upon an inaccurate factual premise has no probative value). First, the examiner expressed that the Veteran had a significant history of noise exposure with recreational activities over a period of years. However, the Veteran indicated that after service, he was employed in the restaurant business and was not exposed to loud noise. Second, the examiner did not consider the Veteran’s noise exposure in service. The examiner merely noted that the Veteran’s whisper separation test was normal but then noted that the whisper test is insensitive to high frequency hearing loss which is typical of noise-induced hearing loss. The Board notes that the absence of documented hearing loss while in service is not fatal to the claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). When a Veteran does not meet the regulatory requirements for a disability at separation, he can still establish service connection by submitting evidence that a current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 159-160 (1993). As such, the Board finds that a remand for a new examination and medical opinion as to the etiology of the Veteran’s hearing loss is necessary. See 38 C.F.R. § 4.2. This VA examiner’s opinion should include whether the Veteran’s hearing loss is related to his active duty service, to include in-service noise exposure. In addition, a review of the record found that the August 2016 SOC notes VA treatment records from the Fayetteville VA Medical Center (MC) dated from June 2010 to August 2010 and from the Bay Pines VAMC dated between July 2010 and August 2016 were reviewed. However, such records are not associated with the Veteran’s electronic record. Such records may contain pertinent information and must be secured. The matter is REMANDED for the following action: 1. Obtain updated VA treatment records to include VA treatment records from Fayetteville VA Medical Center (MC) dated from June 2010 to August 2010 and from the Bay Pines VAMC dated between July 2010 and August 2016. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s hearing loss. The examiner is then specifically instructed to provide the following opinion: Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s hearing loss is related to his time in service, specifically to include military noise exposure in service? The examiner is advised that the absence of documented hearing loss while in service is not fatal to the claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). In providing the above opinion, the examiner is requested to review all pertinent records associated with the claims file. The examiner should also note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner(s) should provide a fully reasoned explanation. (Continued on the next page)   A clear rationale for all opinions is requested and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M.D., Associate Counsel