Citation Nr: 20052911 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 18-21 284 DATE: August 10, 2020 ORDER Entitlement to service connection for a tinnitus disability, to include as secondary to a service-connected bilateral hearing loss disability is granted. REMANDED Entitlement to an initial compensable rating for a bilateral hearing loss disability is remanded. FINDING OF FACT The evidence is at least in equipoise with regards to whether the Veteran’s tinnitus disability is related to service, to include as secondary to his service-connected bilateral hearing loss disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a tinnitus disability, to include as secondary to a service-connected bilateral hearing loss disability have been met. 38 U.S.C. §§ 1112, 1113,1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy Reserve with a period of active duty service from November 1964 to September 1967. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran testified before the undersigned Veterans Law Judge during a Board video conference hearing. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107 (a)(2); 38 C.F.R. § 20.900 (c). 1. Service connection for a tinnitus disability The Veteran seeks service connection for his tinnitus disability. Specifically, he contends that tinnitus began in service due to working around jet aircraft. He further asserts that his tinnitus is secondary to his bilateral hearing loss disability. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131. 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); 38 C.F.R. § 3.303 (a). Certain chronic diseases, such as other organic diseases of the nervous system, including tinnitus, are subject to presumptive service connection if it manifests to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). VA will also grant service connection on a secondary basis. Service connection on a secondary basis is merited if there is (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). 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). Upon review of the evidence, the Board finds that secondary service connection is warranted for the Veteran’s tinnitus disability. His June 2016 private treatment record and August 2015 VA examination reflects that he has a diagnosis of tinnitus. Additionally, he is service connected for a bilateral hearing loss disability. Although an August 2015 VA examiner opined that his tinnitus was less likely than not a symptom related to his hearing loss, the Veteran submitted a private medical opinion which indicated that his tinnitus is very likely related to his hearing loss. Neither provided a particularly compelling rationale. As such, the Board finds that the evidence is at least in equipoise. Therefore, in resolving any reasonable doubt in favor of the Veteran, the Board finds that secondary service connection is warranted for his tinnitus disability. REASONS FOR REMAND 1. Initial compensable rating for bilateral hearing loss is remanded. The Board finds that a remand is warranted before the Board can properly adjudicate the Veteran initial increased rating claim for his bilateral hearing loss disability. A review of the evidence reflects that he was provided with a VA examination in August 2015, which was the premise for assigning a non-compensable rating for his hearing loss disability. The Veteran subsequently submitted multiple private audiological examinations in support of his claim for a higher rating for his disability. However, upon review of the private audiological examinations, the Board is unable to determine the severity of the Veteran’s hearing loss disability. It is not clear what the Veteran’s puretone threshold results or puretone threshold averages are. Additionally, the private audiological examinations reflect results for speech discrimination tests, but it is unclear whether the Maryland CNC speech recognition test was utilized. See 38 C.F.R. § 4.85. Therefore, these private examinations are invalid for use in determining the severity of his hearing loss. Accordingly, this issue must be remanded to provide the Veteran with a VA examination to determine the current severity of his bilateral hearing loss disability. The matters are REMANDED for the following action: 1. Obtain any outstanding private and VA treatment records for the Veteran. 2. After, schedule the Veteran for an audiological examination to evaluate the current severity of his bilateral hearing loss disability. The Veteran’s claims file should be reviewed by the examiner in conjunction with the examination. The examiner should identify and describe all current symptomatology. The examiner should provide a detailed review of the Veteran’s current complaints, as well as findings as to the nature, extent, and severity of symptoms caused by the Veteran’s bilateral hearing loss. (Continued on the next page)   3. After, readjudicate the claim. If the benefit sought on appeal remains denied, furnish the Veteran with a supplemental statement of the case (SSOC) and provide him with an appropriate opportunity to respond. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Xiong, 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.