Citation Nr: 18158020 Decision Date: 12/14/18 Archive Date: 12/13/18 DOCKET NO. 16-58 787 DATE: December 14, 2018 ORDER Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for right ear hearing loss is remanded. Entitlement to an increased rating for an anxiety disorder, currently rated as 10 percent disabling effective September 17, 2010; rated as 30 percent disabling effective September 27, 2011; and rated as 50 percent disabling effective February 12, 2013 is remanded. Entitlement to a compensable rating for hearing loss, left ear, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has tinnitus due to a disease or injury in service, to include due to exposure to excessive noise during service. CONCLUSION OF LAW The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION Entitlement to service connection for tinnitus Service Connection Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as tinnitus, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran contends that his tinnitus is due to excessive noise exposure incurred during service.   The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of tinnitus, and evidence shows that he had acoustic trauma in service, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of tinnitus began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran underwent a VA examination in September 2014. He reported that his tinnitus began approximately 10 years prior to the examination (approximately 2004). The VA examiner noted that the Veteran was exposed to excessive noise during service. The examiner also rendered positive nexus opinions with regards to the Veteran’s hearing loss. However, when asked whether tinnitus was the result of military noise exposure, she responded that it was less likely than not. She noted that the Veteran’s tinnitus began 34 years after he was discharged from service. She stated that while the “IOM Noise and Military Service: Implications for Hearing Loss and Tinnitus (2005) study allows that there is a possibility of a delay in onset of tinnitus due to noise exposure, it 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. A more complete understanding of the mechanism by which tinnitus is generated will be needed before the existence of delayed onset of noise-induced tinnitus can be confirmed or rejected.’” She stated that tinnitus due to noise exposure or acoustic trauma is known to have a noticeable onset immediately or soon following the incident. She reasoned that the reporting of tinnitus many years after leaving military service makes it less likely than not that it was caused by or the result of military service. The Board notes that it is not entirely clear that the Veteran sought service connection for tinnitus. His February 2014 claim only states a claim for hearing loss. The RO apparently adjudicated the issue of tinnitus when it was diagnosed in the September 2014 VA examination. Nonetheless, to the extent that the Veteran believes his tinnitus is related to an in-service injury, event, or disease, including exposure to excessive noise during service, he is not competent to provide a nexus opinion in this case. This issue is also medically complex in this case, involving a delayed onset of symptomatology, and it thus requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the September 2014 VA examiner. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for entitlement to service connection for tinnitus must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). REASONS FOR REMAND Entitlement to an increased rating for an anxiety disorder The Veteran’s most recent VA psychiatric examination took place in November 2013 (five years ago). While a new examination is not required simply because of the time which has passed since the last examination, VA’s General Counsel has indicated that a new examination is appropriate when there is an assertion of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). In this case, the Veteran submitted a July 2018 statement in which he stated that his medications were increased in March 2018 (following an incident in which he ran over his wife’s foot with a car). He further stated that his disability is not well controlled by medication. In light of the Veteran’s statement and the length of time since his most recent examination, the Board finds that a new examination is needed to determine the current severity of the Veteran’s disability. Entitlement to and increased rating for left ear hearing loss and entitlement to service connection for right ear hearing loss The Veteran’s most recent VA audiologic examination occurred in September 2014 (four years ago). Moreover, the examiner rendered positive nexus opinions regarding the right and left ears. The basis for the denial for the right ear was the fact that the right ear hearing loss did not rise to the level of a disability pursuant to 38 C.F.R. § 3.385. The Board finds that a new VA examination is warranted to determine the current severity of the Veteran’s hearing loss disability. Entitlement to a TDIU The Veteran’s claim for a TDIU is dependent on whether his service connected disabilities render him unable to secure or follow a substantially gainful occupation. As such, the claim is inextricably intertwined with the issue of whether service connection is warranted for right ear hearing loss, and whether increased ratings are warranted for left ear hearing loss and anxiety. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected anxiety disorder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his anxiety alone. (Continued on the next page)   2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of the Veteran’s hearing loss. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Prem, Counsel