Citation Nr: 20004832 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 16-39 507 DATE: January 21, 2020 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran’s tinnitus is as likely as not the result of exposure to acoustic trauma during active duty. 2. The Veteran is competent to report that he has experienced ringing in the ears since service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from June 1964 to June 1967. In the August 2016 Form 9, the Veteran requested a videoconference hearing before the Board. The hearing was scheduled for July 2019, and the Veteran was deemed a no-show for the hearing. The Veteran has not provided evidence of good cause for the failure to show. As such, the Veteran's hearing request is withdrawn. 38 C.F.R. § 20.704(d). Entitlement to service connection for tinnitus Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service, or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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). Continuity of symptomatology under 38 C.F.R. § 3.303(b) applies only to chronic diseases listed in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338. Tinnitus is an organic disease of the nervous system subject to presumptive service connection where there is evidence of acoustic trauma and nerve damage. Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). 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, may be 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, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Here, the Board resolves doubt in favor of the Veteran and finds service connection is warranted for tinnitus. The record reflects a diagnosis of tinnitus during the pendency of the appeal. A diagnosis is shown in the February 2016 VA examination. The Board is cognizant that the February 2016 VA examiner found that the Veteran’s tinnitus was not related to service because “[there are many possible causes for tinnitus; however, tinnitus is often idiopathic…[i]n the absence of a noise induced hearing loss and/or documentation of tinnitus in the veteran’s service medical records, the etiology of any reported tinnitus does not appear to be related to acoustic trauma during military service, hearing loss or changes in hearing.” The Veteran’s 1967 separation examination showed some indication of hearing loss. The Veteran did deny hearing loss at separation; however, he was not specifically asked about ringing in his ears. The examiner’s rationale does not consider the Veteran’s competent lay statements. The Veteran reported that he was on duty on an aircraft carrier in 1964 where he had frequent noise exposure with no hearing protection and subsequently worked with the firing squad at the North American Aerospace Defense Command (NORAD) where he was provided no hearing protection. These duties are confirmed by his personnel records. He also asserted that he has experienced tinnitus continuously since 1964. The Veteran’s lay evidence is competent as tinnitus is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran’s statements are also credible because they are supported by his service records which note that he was stationed on an aircraft carrier at sea in 1964 and had subsequent service at the NORAD in Colorado Springs where he had frequent noise exposure from aircraft carriers. In considering all the evidence, the Board finds the claim is in equipoise. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Therefore, resolving reasonable doubt in his favor, the claim of service connection for tinnitus is granted. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss is remanded. The Veteran is currently diagnosed with bilateral hearing loss. The Board observes that the Veteran's DD-214 lists his military occupational specialty as a general office clerk. His personnel records indicate that he was on duty on an aircraft carrier for three months and subsequently stationed at NORAD in Colorado Springs. He contends his claimed bilateral hearing loss began during service and is due to excessive noise exposure around aircraft. The VA has conceded that the Veteran experienced noise exposure. Therefore, the dispositive question is whether the Veteran’s current hearing loss is related to his noise exposure in service. The Veteran's December 1966 entrance examination revealed the following results: Frequency 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz Right 5 0 0 - 20 - Left 0 0 0 - 15 - The Veteran's May 1967 separation examination revealed the following results: Frequency 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz Right 10 0 0 0 30 60 Left 5 0 0 0 0 15 The Veteran's service treatment records are otherwise silent as to any audiological complaints. The Veteran received a VA audiological examination in February 2016. The VA examiner diagnosed the Veteran with bilateral hearing loss. However, the examiner determined that the Veteran's claimed bilateral hearing loss is less likely than not attributable to service. The examiner reasoned for both the right and left ears that "[t]here were no clinically significant threshold shifts when comparing the veteran’s enlistment and separation audiologic evaluations.” He also stated that the Veteran’s separation audiologic evaluation does not meet the VA criteria for a disability. No particular finding with reference to the higher frequency hearing loss in the right ear was made. The examiner referenced a September 2005 study by the Institute of Medicine that stated that: There is no significant basis for delayed or late onset noise-induced hearing loss, i.e., hearing normal at discharge and causally attributable to military noise exposure 20-30 years later. In cases where there were entrance and separation audiograms and such tests were normal, there were no scientific basis for concluding that hearing loss that develops 20 or 30 years later is causally related to service. Therefore, audiologists have no scientific basis for concluding that delayed onset hearing losses exist. Based on this study, the examiner concluded that there is no evidence to suggest that the Veteran’s hearing status would be impacted later in life by his noise exposure in service. Again, the significance of any of the higher frequency hearing loss in the right ear was not referenced. The examiner stated that there were no clinically significant threshold shifts when comparing the Veteran’s enlistment and separation audiologic evaluations. However, the examiner provided no explanation for the discrepancies between the Veteran’s audiological test results at enlistment and separation. Specifically, it is not indicated whether these findings are the early onset of hearing loss more recently found, or alternatively, why the threshold shifts are insignificant. The examiner concluded that because the Veteran’s separation examination did not indicate hearing loss as a disability for VA purposes, the threshold shifts shown during service were not related to his current disability. In Hensley v. Brown, 5 Vet. App. 155, 160 (1993), the Court found that the absence of hearing loss disability in service is not necessarily fatal to a claim for compensation for post-service hearing loss disability. Further, the examiner did not acknowledge the Veteran’s lay statements or personnel records indicating noise exposure in-service, or his assertions that he began to experience hearing loss as early as 1964. For the above reasons, the February 2016 examination is inadequate for rating purposes and remand is warranted to obtain an adequate opinion. The matters are REMANDED for the following action: 1. Contact the Veteran to identify any pertinent private or VA treatment records that might be outstanding and associate them with the claims file. Follow proper notification procedures if the records are unobtainable. 2. Thereafter, obtain an addendum opinion from the examiner who performed the February 2016 VA examination. (If this examiner is unavailable, a similarly situated examiner should be requested to review the records and offer the requested responses. If additional examination is determined necessary, such examination should be conducted.) The audiologist is to be provided access to the Veteran's electronic claims file. The audiologist is requested to review all pertinent records associated with the claims file, the Veteran's service treatment records, post-service medical records, and the Veteran's own assertions. Any indicated diagnostic tests and studies should also be accomplished, if needed. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology and in-service noise exposure, and such lay statements must be taken into account in formulating the opinion. If there is a medical basis to support or doubt the history provided by the Veteran, the audiologist should provide a fully reasoned explanation. After a thorough review of the medical history including the Veteran’s lay statements, the VA audiologist must opine whether it is at least as likely as not (50 percent or higher degree of probability) that any hearing loss manifested in-service or is otherwise causally or etiologically related to military service, to include potential in-service noise exposure. The examiner is advised that a finding that the Veteran's hearing loss was not significant enough to be considered disabling at separation is not, by itself, a sufficient rationale for an opinion that a relationship to service is less likely than not. The significance, if any, between recorded findings on entrance and separation should be discussed, even if the hearing loss was minimal at separation. If the examiner opines that the hearing loss recorded during the Veteran’s service is not related to the Veteran’s current hearing loss, a full rationale should be provided. It should specifically be indicated whether the type of hearing loss now found is the type normally seen with acoustic trauma, as opposed to some other cause such as infection or advancing age. All prior reports should be reconciled, as necessary. 3. After the development requested has been completed, the Agency of Original Jurisdiction (AOJ) should review any report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures at once. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Sneeringer, 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.