Citation Nr: A20008564 Decision Date: 05/14/20 Archive Date: 05/14/20 DOCKET NO. 190626-10496 DATE: May 14, 2020 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for left ear hearing loss is remanded. FINDING OF FACT The Veteran’s tinnitus had its onset in service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from October 1974 to October 1978. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. The Veteran chose to participate in VA’s test program RAMP, the Rapid Appeals Modernization Program. This decision has been written consistent with the new AMA framework. In June 2018, the VA received the Veteran’s opt-in selection of the higher-level review lane of his appeal through RAMP. In an October 2018 RAMP rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) denied the Veteran’s appeal. In March 2019, the Veteran requested a direct review the RO’s October 2018 decision by the Board of Veterans’ Appeals (Board). Consequently, only evidence of record at the time of the October 2018 rating decision will be considered. 38 C.F.R. § 20.303. In the October 2018 RAMP decision, the RO determined the Veteran has a current diagnosis of left ear hearing loss and recurrent tinnitus. Thus, the Board is bound by these favorable findings. See 38 C.F.R. § 3.104(c). 1. Entitlement to service connection for tinnitus is granted. The Veteran seeks service connection for tinnitus, which he asserts began during service and has been recurrent since that time as a result of duties associated with his military occupational specialty (MOS) of Fabrication and Parachute Specialist. See May 2017 and September 2017 VA Forms 21-4138. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Here, the August 2017 VA examination report reflects a diagnosis of tinnitus. However, the Board emphasizes that tinnitus is a type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). Thus, the first element of service connection is established. Regarding the second element of service connection, while the Veteran’s service treatment records are silent for tinnitus complaints, the Board finds that his reported in-service acoustic trauma is consistent with the circumstances of his service as a Fabrication and Parachute Specialist, including prolonged routine exposure to aircraft and jet noise that left his hearing muffled for hours and development of high-pitched sounds in his ears. See 38 U.S.C. § 1154(a). Moreover, VA acknowledged the Veteran was exposed to in-service acoustic trauma. See October 2017 Statement of the Case (SOC). Therefore, his in-service exposure to hazardous noise is conceded, and as detailed below, his report of an in-service incurrence of tinnitus is competent and credible. Thus, the second element is also met. Regarding nexus, the Board acknowledges that the August 2017 VA examiner opined that it is less likely than not that the Veteran’s tinnitus was caused by or a result of military noise exposure. However, the examiner stated the Veteran’s MOS resulted in low probability of noise exposure, relied on a normal entrance and separation examinations as rationale for the negative opinion, and did not address the Veteran’s competent and credible lay statements regarding development of high pitched sounds in his ears during service or his conceded in-service acoustic trauma, which renders the opinion nonprobative. Moreover, as noted above, tinnitus is capable of lay observation, and the Board finds the Veteran’s report of an in-service onset of high-pitched sounds reflective of tinnitus that have been persistent since service is credible, as he has consistently reported such throughout the appeal period. See May 2017 and September 2017 VA Forms 21-4138. The Board acknowledges that the VA examiner noted tinnitus had an onset in 2007 per the Veteran’s report, but emphasizes that the Veteran said the onset date was “unknown, it started 10 years ago and has gotten worse over the past 5 years.” Given his prior and subsequent statements clarifying the presence of continuous high-pitched sounds since service and affording him the benefit of the doubt, the Board finds his tinnitus more likely than not began in service. Thus, service connection for tinnitus is granted. REASONS FOR REMAND 2. Entitlement to service connection for left ear hearing loss is remanded. The August 2017 VA audiologist opined negatively on the Veteran’s left ear hearing loss, relying on normal entrance and separation audiogram results and the low probability of noise exposure during service. However, the examiner did not address the Veteran’s lay statements, conceded in-service noise exposure, or the possibility of delayed-onset hearing loss. Thus, an addendum opinion is warranted on remand to correct this pre-decisional duty to assist error. Hensley v. Brown, 5 Vet. App. 155, 159. The matters are REMANDED for the following action: Obtain an addendum opinion from an examiner other than the August 2017 examiner to address the etiology of the Veteran’s bilateral hearing loss. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. The claims file, including a copy of this remand, must be provided to the examiner in conjunction with the requested opinion. The examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s left ear hearing loss had its onset during service or is otherwise related to service, to include as due to conceded in-service noise exposure from duties of his MOS as a Fabrication and Parachute Specialist. In addressing this question, the examiner must discuss the possibility of delayed-onset hearing loss and may not rely solely on normal audiometric findings at separation to support the opinion. The examiner should also consider the Veteran’s reports of continuous hearing loss since service separation, as well as the fact that the Veteran is now service-connected for tinnitus. A complete rationale for all opinions must be provided. 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 R. Asante 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.