Citation Nr: 20021684 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 16-33 033 DATE: March 26, 2020 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 had its onset in service. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1131, 1154; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from September 1980 to September 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In the July 2016 substantive appeal (via VA Form 9), the Veteran requested a Board hearing. The hearing was scheduled in June 2019 with notification letter sent in April 2019, but the Veteran failed to report. No postponement has been received, and Veteran has not since offered good cause for his failure to report or requested that his hearing be rescheduled. Thus, the Veteran’s hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d). 1. Entitlement to service connection for tinnitus is granted. The Veteran asserts that he first noticed tinnitus while in service, when he was exposed to acoustic trauma. See July 2016 VA Form 9. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence showing (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Initially, the Board notes that tinnitus is capable of lay observation. Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding that tinnitus is capable of lay observation). Moreover, the Board finds credible the Veteran’s report that his tinnitus began while in service as a rifleman, where he was exposed without hearing protection to weapons, including M16 rifles, .45 caliber handguns, hand grenades, machine guns, and landmines, as well as aircraft carriers. See December 2015 Notice of Disagreement (NOD); see also July 2016 VA Form 9. The Board acknowledges the November 2015 VA examiner’s unfavorable medical nexus opinion. However, the Board finds the opinion had no probative value, as the examiner inappropriately rely on a lack of documented treatment in service and do not consider the Veteran’s competent and credible reports of continuous tinnitus symptoms since his service as a rifleman. Indeed, the Veteran reports that he advised the examiner as to an in-service onset of his tinnitus and that the examiner would not accept his response. See July 2016 VA Form 9. The Board finds the Veteran credible in this regard. Thus, as the only probative evidence is in favor of the claim, service connection is established. REASONS FOR REMAND 2. Entitlement to service connection for bilateral hearing loss is remanded. The November 2015 VA examination is inadequate because it did not contain the controlled speech discrimination test (Maryland CNC) as required by 38 C.F.R. § 4.85(a). Also, the November 2015 and June 2017 VA examiners’ nexus opinions against the claim are inadequate, as they inaccurately summarize the findings of a 2006 Institute of Medicine (IOM) study relied upon to reject the possibility of delayed-onset hearing loss. See e.g., Lemmons v. McDonald, No. 15-3043, 2016 LEXIS 1646 (Vet. App. October 28, 2016) (non-precedential); Bethea v. Derwinski, 2 Vet. App. 252 (1992) (single-judge memorandum decisions may be cited or relied upon for any persuasiveness or reasoning they contain). Thus, a new examination with an addendum opinion is warranted on remand. Any outstanding records should also be secured. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding relevant private treatment records. If any records are unavailable, notify the Veteran pursuant to 38 C.F.R. § 3.159(e). 3. After obtaining the requested records (to the extent possible), obtain a new audiological examination from an audiologist other than the November 2015 and June 2017 VA examiners addressing the nature and etiology of the Veteran’s bilateral hearing loss. Following examination of the Veteran and review of the claims file, the audiologist should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran’s current bilateral hearing loss had its onset in or is otherwise related to his period of active duty service, to include as a result of conceded noise exposure therein. In addressing this question, please specifically discuss the significance of (1) the Veteran’s military occupational specialty of Rifleman and his Rifle Marksman Badge decoration; (2) the fact that the Veteran’s tinnitus has been attributed to service; and (3) the IOM Report on noise exposure in the military (cited as authority in the November 2015 and June 2017 VA medical opinions), which states that it is “unlikely” that the onset of hearing loss begins years after noise exposure occurs, but also states that: (a) “an individual’s awareness of the effects of noise on hearing may be delayed considerably after the noise exposure;” (b) “[t]here is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one’s lifetime, long after the cessation of that noise exposure;” and (c) “definitive studies to address this issue have not been performed.” If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Ramirez, 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.