Citation Nr: 18154022 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 14-99 807A DATE: November 28, 2018 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to a compensable rating for bilateral hearing loss is remanded. FINDING OF FACT The evidence is at least in relative equipoise as to whether the Veteran’s tinnitus is causally related to service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1961 to April 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. Jurisdiction now rests in Winston-Salem, North Carolina. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in October 2018. A transcript of the hearing is of record. Entitlement to service connection for tinnitus The Veteran contends that service connection is warranted for tinnitus based on his noise exposure as a radioman in service. Additionally, he asserts that he was exposed to gunfire on board his ship in service and was subjected to 20 to 30 minutes of low explosions without hearing protection. The Board finds that the Veteran’s military occupational specialty (MOS) was consistent with his report of noise exposure involving the work he performed as a radioman. Consequently, the Board concludes that the Veteran had noise exposure while on active duty. First, the Board finds competent evidence that the Veteran currently suffers from tinnitus. A layperson is capable of observing tinnitus. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Here, the Veteran’s reports of chronic and ongoing tinnitus are well-documented throughout the record, including in the Veteran’s VA treatment records, private treatment records, August 2011 VA examination report, and October 2018 hearing transcript. Specifically, an August 2010 VA treatment record noted tinnitus in both ears. In a December 2010 statement, the Veteran stated that his job during service was to send and receive continuous wave radio communications and to monitor the distress frequencies. He said that the signal strength ranged from poor to impossible, which exposed him and the other radiomen to loud static for hours at a time. He said he had tinnitus since the 1970s and that the ringing in his ears was constant. A February 2011 private treatment record noted that the Veteran was also exposed to an explosion sinking a tug off New Zealand. The treating physician said the Veteran had tinnitus in his ears for year. In a February 2011 statement, the Veteran reiterated that he was exposed to very low explosions for about 20 to 30 minutes after tugging a boat from New Zealand out to sea. He said he was not supplied with hearing protection. He said that the big guns on his ship were used. In an August 2011 VA examination, the Veteran stated that he was exposed to radio operator headphone noise in service and had engine room noise exposure as well when he delivered messages to the Chief Engineer Officer. The Veteran said he was not sure when tinnitus started. He said it was a long time ago possibly in the 1970s but maybe longer. The examiner determined that the etiology of tinnitus could not be determined on the basis of available information without resorting to speculation. However, the examiner concluded that it was less likely as not that noise trauma in service was the etiology of the Veteran’s tinnitus. The examiner reasoned that the Veteran was unsure when his tinnitus started and there were no complaints of or evidence of tinnitus found in service medical records. In the Veteran’s December 2014 VA Form 9, the Veteran addressed the treatment records that showed the Veteran denying tinnitus. The Veteran stated that he thought the physician asked him if his ears were ringing at the time and he told the physician no. The Veteran also pointed to a September 2014 private treatment record from Dr. B that found the Veteran’s tinnitus was contributed to by his noise exposure in service. The Board notes that this September 2014 private treatment record is not found in the record; however, given the positive outcome of the Veteran’s claim, the Board finds that there is no resulting prejudice by its absence. At the October 2018 Board hearing, the Veteran described an incident where they sunk a tug off of New Zealand. He said he was at the fan tail when the guns went off, and it was very loud, with no hearing protection provided. The Veteran said he has had ringing in his ears since service. Thus, for the reasons set forth above, the Board finds competent evidence of in-service noise exposure. In addition, the Veteran indicated at his October 2018 Board hearing that the ringing in his ears has persisted since service. The Board notes the prior indications that the tinnitus started in the 1970s; however, the Veteran clarified during the August 2011 VA examination that he was not sure exactly when it began and that it could have started earlier. Finally, the Board notes that there are conflicting nexus opinions of record. The August 2011 VA examiner opined that it is not likely that the Veteran’s tinnitus is causally related to service. In contrast, given the subjective nature of tinnitus, the Veteran’s lay statements regarding his in-service onset of his tinnitus are competent and credible to support his claim. Thus, resolving reasonable doubt in the Veteran’s favor, the Board concludes that service connection for his tinnitus is warranted. See 38 C.F.R. § 3.102. In conclusion, the Board resolves reasonable doubt in the Veteran’s favor that his current tinnitus is related to his noise exposure during his active duty service. Service connection for tinnitus is, therefore, granted. REASONS FOR REMAND Entitlement to a compensable rating for bilateral hearing loss is remanded. The Veteran essentially contends that his service-connected bilateral hearing loss is more disabling than currently evaluated. He specifically contends in his December 2014 VA Form 9 that this service-connected disability was found to be worse in a September 2014 private treatment record from a Dr. B. Additionally, in the October 2018 Appellate Brief the Veteran contended that his bilateral hearing loss was worse than the current evaluation reflected. A review of the record evidence shows that the Veteran was examined most recently for his service-connected disability in August 2011. This examination is over 7 years old. The Court has held that when a Veteran alleges that his service-connected disability has worsened since he was examined previously, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); but see Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (finding “mere passage of time” does not render old examination inadequate). Given the Veteran’s contentions, and given the length of time which has elapsed since his most recent VA examinations in August 2011, the Board finds that, on remand, he should be scheduled for an updated VA examination to determine the current nature and severity of his service-connected bilateral hearing loss. 38 U.S.C. § 5103A (d) (2012); 38 C.F.R. § 3.159 (2017). Additionally, the Board notes that the Veteran has pointed to private treatment records dated September 2014 from Dr. B in both his December 2014 VA Form 9 and at his October 2018 Board hearing. Also, in the November 2014 statement of the case, reference is made to VA treatment records from November 2009 to February 2014. The most recent VA treatment records are from October 2010. The Board finds that these records are missing from the claims file. Therefore, on remand, these records should also be located and added to the claims file. The matter is REMANDED for the following actions: 1. Obtain any outstanding private or VA treatment records. Importantly, obtain the September 2014 private treatment records from Dr. B, as well as any missing VA treatment records from October 2010 to the present. Request that the Veteran assist with locating these records, if possible. All attempts to locate these records should be documented. If the RO is unable to locate these records, the RO should notify the Veteran and his representative and provide documentation of attempts made. Associate these records with the claims file. 2. Then, schedule the Veteran for a VA examination with an appropriate examiner to determine the current severity of his service-connected bilateral hearing loss. The claims file and a copy of this remand should be made available to the examiner for review. A clear rationale should be provided for all opinions expressed. The examiner should consider the Veteran’s lay statements when making an opinion. If the examiner is unable to provide an opinion without resorting to mere speculation then the examiner must state this and provide any information needed to make an opinion, if possible. 3. Thereafter, readjudicate the claim on appeal. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Saudiee Brown, Associate Counsel