Citation Nr: 18157945 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 17-01 303 DATE: December 13, 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 first manifested in service from exposure to high levels of noise as an Army vehicle mechanic. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran active service wheeled vehicle mechanic in the United States Army from January 1972 to December 1973. This matter is before the Board of Veterans’ Appeals (Board) on appeal from the February 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) denying the Veteran’s claim for entitlement to service connection for bilateral hearing loss and tinnitus. Duty to Notify and Assist VA has a duty to notify and assist Veterans in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). Neither the Veteran nor his representative identified any other shortcomings in fulfilling VA’s duty to notify and assist. Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015). Service Connection Generally, to establish service connection a Veteran 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 incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009). In each case where a Veteran is seeking service-connection for any disability due consideration shall be given to the places, types, and circumstances of such Veteran’s service as shown by such Veteran’s service record, the official history of each organization in which such Veteran served, such Veteran’s medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a)(1). Service connection for tinnitus Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110 (2012). Tinnitus is a condition that may be diagnosed by its unique and readily identifiable features, and the presence of the disorder is not a determination that is medical in nature and is capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002). A layperson also is competent to testify as to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). The Board further notes that tinnitus may be subject to service connection on a presumptive basis as an “organic disease of the nervous system” under 38 C.F.R. § 3.309(a) where there is evidence of in-service acoustic trauma and a continuity of symptomatology from service. See Fountain v. McDonald, 27 Vet. App. 258 (2015); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Tinnitus is defined as “a noise in the ears, such as ringing.” See Dorland’s Illustrated Medical Dictionary, 1930 (32nd ed. 2012). The Veteran is competent to report tinnitus. See Charles v. Principi, 16 Vet. App. 370 (2002) (stating that “ringing in the ears is capable of lay observation”). As an initial matter, based on the Veteran’s reported occupational specialty in service as a wheeled vehicle mechanic and training on a small arms range, the Board concedes that the Veteran was exposed to high levels of noise while in service. In this case, during a January 2012 VA audiology consult, the Veteran reported tinnitus symptoms had been intermittent for the past several years. The Veteran also reported working as wheel vehicle mechanic while in service and as tractor trailer driver for 14 years after service. In a December 2016 substantive appeal, the Veteran reported having experienced tinnitus following training on a rifle range during service. The Veteran was afforded a VA hearing evaluation by an audiologist in January 2013. The audiologist reported that there was no date, event, or circumstance of onset reported in relation to the complaint of tinnitus. The audiologist provided the following opinion: “The service medical records did not reveal any documentation of hearing loss; and were silent for complaints of hearing loss, acoustic trauma, or tinnitus. There were other claims filed in 1973, 1977, and 1997 though none included hearing loss, tinnitus, or any other ear conditions. Current pattern of hearing loss does not reflect that of hearing loss due to noise exposure. There was no date, event, nor circumstance of onset reported in relation to this complaint. It is less likely than not that tinnitus was caused by military noise exposure.” Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board finds the January 2013 negative nexus opinion warrants less probative weight for two reasons. First, the audiologist did not address the Veteran’s specific occupational exposure to high levels of noise as a mechanic and while performing small arms training but rather cited the absence of a record of complaint of hearing trauma in the service treatment records. Secondly, the audiologist also did not address the Veteran’s lay statements made in January 2012 and December 2016 regarding the onset of symptoms in service and the continuing of intermittent episodes of tinnitus after service. The Veteran was exposed to high levels of noise and is competent to report as the onset and continuity of symptomatology even though experienced intermittently. Upon review, the Board finds that there is a relative balance of evidence for and against an onset of tinnitus in service with continuing episodes after service, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s intermittent tinnitus at least as likely as not had its onset in service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, the Board concludes that the criteria for entitlement to service connection for tinnitus have been met. REASONS FOR REMAND Service connection for bilateral hearing loss The evidence of record indicated that the Veteran has a current bilateral hearing loss disability for VA purposes. See January 2013 VA hearing loss and tinnitus examination; 38 C.F.R. § 3.385 (defining when impaired hearing is a disability for VA purposes). The Veteran contends that his bilateral hearing loss was caused by noise exposure during his military service. As an initial matter, based on the Veteran’s reported occupational specialties in service as a wheeled vehicle mechanic, the Board concedes that the Veteran was exposed to high levels of noise while in service. As such, the crucial issue in this case is whether the Veteran’s current bilateral hearing loss disability is caused by his active service and the conceded noise exposure. The VA opinion obtained in January 2013, provided the following opinion: “The service medical records did not reveal any documentation of hearing loss; and were silent for complaints of hearing loss, acoustic trauma, or tinnitus. There were other claims filed in 1973, 1977, and 1997 though none included hearing loss, tinnitus, or any other ear conditions. Current pattern of hearing loss does not reflect that of hearing loss due to noise exposure. There was no date, event, nor circumstance of onset reported in relation to this complaint. It is less likely than not that hearing loss was caused by military noise exposure.” The rationale relied, at least in part, on a lack of in-service documentation of a bilateral hearing loss disability or complaints about acoustic trauma. The absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385), however, is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87 (1992). The Court stated in Hensley v. Brown, 5 Vet. App. 155 (1993) that “when audiometric test results at a veteran’s separation from service do not meet the regulatory requirements for establishing a ‘disability’ at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.” The January 2013 VA opinion is accordingly insufficient and remand is therefore required for a new VA examination and opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral hearing loss disability. The examiner must provide an opinion addressing the following: Whether it is at least as likely as not (i.e. 50 percent probability or greater) that a bilateral hearing loss had its onset during active service or is caused or aggravated by any in-service disease, event, or injury, to include conceded in-service noise exposure. In rendering the above opinion, the examiner is advised that the absence of in-service evidence of a hearing loss disability during service is not always fatal to a service connection claim, so long as a medically sound basis upon which to attribute the post-service findings to the injury in service is found (in this case noise exposure). If the examiner concludes that it is less likely than not that the Veteran’s bilateral hearing loss had its onset during active service or is caused or aggravated by any in-service disease, event, or injury, to include conceded in-service noise exposure, the examiner must provide a detailed analysis for these conclusions. 2. Thereafter, readjudicate the Veteran’s claim. If a complete grant of benefits is not granted, issue a supplemental statement of the case (SSOC) to the Veteran and his representative. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. NeSmith, Associate Counsel