Citation Nr: 20007422 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 18-32 747 DATE: January 29, 2020 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his tinnitus began during active service. 2. Resolving reasonable doubt in the Veteran’s favor, his bilateral hearing loss is at least as likely as not related to exposure to hazardous noise during service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1961 to March 1965. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2018 rating decision. The Veteran testified before the undersigned during a December 2019 hearing. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires 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 current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including bilateral hearing loss and tinnitus, may be presumed to have been incurred in or aggravated by service if they manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). Moreover, if those same diseases are noted during service, continuity of symptomatology can show chronicity and subsequent manifestations of the same disease is presumed to be service connected. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-99 (1997) (Overruled on other grounds by Walker, 708 F.3d 1331). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for tinnitus The Veteran asserts he has tinnitus as a result of acoustic trauma during active service related to hazardous noise exposure as a radar technician, as well as exposure to weapons fire during duty. The Veteran testified at his December 2019 Board hearing that he experiences tinnitus that began during active service. He is competent to identify tinnitus, as this condition is observable by his own senses. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). He reported at his April 2018 VA examination and December 2019 private audiologist exam that he has experienced tinnitus symptoms since being in close proximity to five-inch turret gun fire without ear protection. The Veteran has testified this gun was near his primary work location. Taken together with the Veteran’s record, which confirms his Navy service as a radar technician aboard the U.S.S. Boston, and granting the Veteran the benefit of reasonable doubt, the Board finds the Veteran’s statements regarding onset of his tinnitus during service to be credible and entitled to probative weight. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). An April 2018 VA examiner opined that the Veteran’s tinnitus was less likely than not related to service because it was not noted in his service treatment records; however, the mere absence of contemporaneous medical evidence cannot be the sole basis for determining a claimed disability is not the result of service. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). As the examiner provided no other adequate rationale, the Board finds this opinion is not entitled to probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran has credibly and competently asserted he has tinnitus that began during active service. There is nothing in the Veteran’s service treatment records to contradict his report of having tinnitus symptoms in service, and his service records document service consistent with exposure to hazardous noise. As such, the evidence is in at least relative equipoise as to this issue, and reasonable doubt must be resolved in favor of the claimant. Accordingly, the Veteran’s credible and competent reports of the onset of tinnitus in service are adequate to establish his claim, and service connection for tinnitus is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for bilateral hearing loss The Veteran asserts his current hearing loss disability is the result of hazardous noise exposure, as described above. For the purposes of applying the laws administered by VA, hearing loss will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. An April 2018 VA examination and December 2019 private audiological examination both confirm the Veteran has a current bilateral hearing loss disability. The Veteran’s service treatment records contain enlistment and separation examination reports; however, these reports contain no audiogram results. The only hearing test record available from service was taken shortly after enlistment in March 1961, and these results do not clearly show a hearing loss disability in either ear for VA purposes. See 38 C.F.R. § 3.385. The Veteran has asserted that his duties as a radar technician included a moderate amount of frequent noise exposure, and the Veteran has credibly reported exposure to weapons fire noise while serving aboard the U.S.S. Boston related to a turret located near his primary work location, as discussed above. The only issue that remains is whether there is a nexus between the current hearing loss disability and the reported in-service acoustic trauma. In a December 2019 opinion, a private audiologist, R.R., reported that the Veteran attributes his hearing loss, particularly in his right ear, to an incident in which he was near gun shots from a turret near the radar room where he performed his primary duties. Based on this report, the audiologist opined it is more than likely that the Veteran’s asymmetric hearing loss is related to his military experience. The audiologist’s report is competent and credible, as it was based on the Veteran’s reported service history, which is generally consistent with his service personnel records and lay testimony at his December 2019 Board hearing; therefore, it is entitled to probative weight. See Nieves-Rodriguez, 22 Vet. App. 295. The Board acknowledges the record includes a negative April 2018 VA nexus opinion regarding the Veteran’s claims. The Board finds the rationale provided in this opinion is insufficient. Id. at 304 (“It is the factually accurate, fully articulated, sound reasoning for the conclusion...that contributes probative value to a medical opinion.”). The April 2018 VA examiner indicated the Veteran’s separation audiogram was within normal limits. The Board’s review of the service treatment records found no audiogram results at the Veteran’s separation, and the audiogram portion of the Veteran’s March 1965 separation examination report is blank. Because the examiner relied on an inaccurate history to reach her conclusion, this opinion is inadequate and not entitled to probative weight. In sum, the Board finds the evidence is at least in equipoise as to whether the Veteran’s current bilateral hearing loss disability is the result of the asserted military noise exposure in this case. Resolving reasonable doubt in the Veteran’s favor, the Board finds service connection for bilateral hearing loss is warranted. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only an ‘approximate balance of positive and negative evidence’ the Nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding...benefits.”). REASONS FOR REMAND Evidence indicates that there may be outstanding relevant VA treatment records. During his December 2019 hearing, the Veteran reported that he was treated at a VA Medical Center approximately one year earlier. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issue on appeal. A remand is required to allow VA to obtain them. Also during his December 2019 hearing, the Veteran identified several potentially relevant outstanding private treatment records. Though the Veteran stated he would attempt to obtain these records and send them to VA, they have not yet been received. A remand is required to allow VA to obtain authorization and request these records. The matters are REMANDED for the following action: (Continued on the next page)   1. Obtain all the Veteran’s outstanding VA treatment records. 2. Ask the Veteran to complete a VA Form 21-4142 for all physicians and facilities identified during his December 2019 Board hearing. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Pitman, 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.