Citation Nr: 20004690 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 15-40 357 DATE: January 21, 2020 ORDER Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT The Veteran has not been shown to have tinnitus during the appeal period or within close proximity thereto. CONCLUSION OF LAW Tinnitus was not incurred in active service and may not be presumed to have been so incurred. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1969 to March 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from July 1979 and January 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the RO initially denied the claim for service connection for hearing loss in a July 1979 rating decision. The Veteran submitted a timely notice of disagreement (NOD) in September 1979, and the RO issued a statement of the case (SOC) in October 1979. Thereafter, the Veteran submitted a timely substantive appeal in March 1980. As such, the Board finds that the Veteran timely perfected the appeal of the July 1979 rating decision. Accordingly, the claim will be reviewed on a de novo basis, and new and material evidence is not needed to reopen the claim. Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. As organic diseases of the nervous system are considered chronic diseases for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015) (holding that the presumptive provisions of 38 C.F.R. § 3.309 (a) include tinnitus as an organic disease of the nervous system where there is evidence of acoustic trauma). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including organic diseases of the nervous system, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In considering the evidence of record under the laws and regulations set forth above, the Board finds that the Veteran is not entitled to service connection for tinnitus. The Veteran’s September 1970 separation examination noted normal ears and drums. In a December 1979, Dr. L.C. (initials used to protect policy), the Veteran was noted to have had tinnitus and hearing loss for nine years. The Veteran later filed a claim for service connection for tinnitus in July 2014. He was afforded a VA examination in November 2014 during which he did not report experiencing tinnitus. The Board notes that tinnitus has been recognized as a disorder that is capable of lay observation and description. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). However, in this case, the Veteran himself denied having tinnitus during the November 2014 VA examination. There are also no treatment records or lay statements documenting the presence of tinnitus. Nor has the Veteran reported any symptoms of tinnitus. Moreover, the RO notified the Veteran of the finding that he did not have tinnitus in the January 2015 rating decision and October 2015 statement of the case (SOC), but he did not refute that finding or otherwise state that he does experience tinnitus. Thus, the evidence of evidence of record does not show that he has had tinnitus at any time since filing his claim or within close proximity thereto. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. As the weight of the evidence is against the claim of service connection for tinnitus, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Therefore, the Board concludes that service connection is not warranted, and no discussion of the remaining elements is necessary. See Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006) (the absence of any one element will result in denial of service connection). REASONS FOR REMAND The Veteran was afforded a VA examination in November 2014 during which time audiological testing found bilateral hearing loss as defined by 38 C.F.R. § 3.385. The examiner opined that his hearing loss was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. She noted that there was no evidence of complaints or treatment of hearing loss in service and that the Veteran’s June 1968 pre-induction examination and September 1970 separation examination revealed normal pure tone thresholds without any shift. She also indicated that a 2006 Institute of Medicine (IOM) article concluded that, based on current knowledge of cochlear physiology, there was no sufficient scientific basis for the existence of delayed-onset hearing loss. She noted that the IOM did not rule out that delayed-onset hearing loss might exist, but that, because the requisite longitudinal animal and human studies have not been done, and based on current knowledge of acoustic trauma and the instantaneous or rapid development of noise-induced hearing loss, there as no reasonable basis for delayed-onset hearing loss. Nevertheless, the examiner did not address the May 1979 audiogram and the December 1979 medical opinion by Dr. L.C. (initials used to protect policy). Moreover, the VA examiner did not discuss a January 1970 service treatment record that indicated that the Veteran had experienced problems with his left ear, including otalgia, a red tympanic membrane, bulging, and otitis. In addition, there is no indication that the VA examiner considered the conversion of the in-service audiograms from ASA standards to ISO-ANSI standards where applicable. In March 2017, the Board revised its policy regarding service connection claims for hearing loss for Vietnam-era veterans. When interpreting audiometric data from service treatment records, the Board has historically considered that service departments changed from using ASA standards to ISO-ANSI standards as of November 1967. The revised policy provides that, for service department audiograms conducted between January 1, 1967, and December 31, 1970, in which the standard used is not clearly indicated, the data should be considered under both the ASA and ISO-ANSI standards. For these reasons, the Board finds that an additional medical opinion is needed. Accordingly, the case is REMANDED for the following actions: 1. The agency of original jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for bilateral hearing loss. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding VA treatment records. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any hearing loss that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and statements. The examiner is advised that the absence of evidence of a hearing disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. The examiner should 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 appellant, the examiner should provide a fully reasoned explanation. The examiner should convert any audiometric results using ASA standards to ISO-ANSI standards in order to facilitate data comparison. (In March 2017, the Board revised its policy regarding service connection claims for hearing loss for Vietnam-era veterans. When interpreting audiometric data from service treatment records, the revised policy provides that, for service department audiograms conducted between January 1, 1967, and December 31, 1970, in which the standard used is not clearly indicated, the data should be considered under both the ASA and ISO-ANSI standards.) The examiner should opine as to whether it is at least as likely as not that the Veteran’s hearing loss is causally or etiologically related to his military service, including noise exposure or symptomatology therein. He or she should specifically consider the service treatment records noting otalgia, a red tympanic membrane, bulging, and otitis in January 1970 and the May 1979 audiogram and December 1979 medical opinion from Dr. L.C. In rendering the opinion, the examiner should discuss the significance, if any, of the fact that there were no threshold shifts in service or that the Veteran’s hearing loss began many years after service. He or she should also discuss medically known or theoretical causes of hearing loss and describe how hearing loss which results from noise exposure generally presents or develops in most cases, as distinguished from how hearing loss develops from other causes, in determining the likelihood that the Veteran’s hearing loss was caused by noise exposure in service as opposed to some other cause. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. The AOJ should review the examination report to ensure compliance with this remand. If the report is deficient in any manner, the AOJ should implement corrective procedures. 4. The AOJ should conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. J. Williams, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.