Citation Nr: 21000337 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 17-04 852 DATE: January 5, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT Resolving all doubt in favor of the Veteran, the evidence is at least in equipoise as to whether tinnitus is the result of noise exposure in military service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1976 to September 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which denied the issues on appeal. The Veteran testified before the undersigned at a Board hearing in September 2020. A transcript of the hearing has been reviewed and associated with the claims file. 1. Service connection for tinnitus Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Veteran contends that service connection is warranted for tinnitus as due to noise exposure in service. He served in an MOS 6636 Aircraft Electrical Systems Technician and testified as to being subjected to noise from aircraft. Transcript pg. 3. Accordingly, the Board concedes that he as likely as not had exposure to acoustic trauma in service. Additionally, the service treatment records disclosed that he sustained a perforated right tympanic membrane (TM) in March 1979, with an April 1979 follow up record describing the right TM as “ruptured.” The ruptured TM (ear drum) was also noted on separation examination in August 1980. Based on the evidence of record, the Board finds that entitlement to service connection for tinnitus is warranted, as the evidence is in equipoise as to whether tinnitus began in service and is associated with the conceded acoustic trauma. At his September 2020 hearing the Veteran described tinnitus during active duty that was noticeable during quiet times at 15 to 35 second intervals. It would come and go. Then after service in the early 1980s he noticed that the tinnitus became more pronounced and frequent but continued to be intermittent. He indicated that it used to go away but eventually it did not go away. Post-service records show tinnitus in March 2004 when he was seen for complaints of hearing difficulties with noise in his ears/head described as ringing. He was noted to have both ears to be occluded. In November 2007 he was seen for left ear pain, discomfort and pressure, decreased hearing and slight ringing and fullness. Later in December 2007 he again had symptoms of left ear pain, fullness and tinnitus. . None of the post-service records contained an opinion regarding the etiology of the tinnitus noted. The report of a November 2014 VA ear conditions examination addressed whether the Veteran had a service connected disability resulting from a left ear drum rupture. The examiner responded in the negative, pointing out that he had ruptured his right ear drum in service, not his left ear drum. The examiner deferred claims of hearing loss and tinnitus to audiology. The December 2014 VA audiological disorders examination gave a negative opinion, finding that tinnitus was less likely than not related to his inservice military noise exposure, reasoning that the tinnitus began post service and thus was not related to such exposure. The Board notes that this opinion was made without benefit of the review of the Veteran’s lay testimony alleging that he first noted the beginning of tinnitus symptoms while still on active duty. Given the above, the balance of the lay and medical evidence reflects tinnitus to be a subjective symptom that as likely as not was caused by in-service acoustic trauma. Again, the unfavorable VA opinion is found to not be supported by adequate rationale and is of limited probative value. A finding that tinnitus is related to in-service acoustic further supported by the Veteran’s competent and credible reported history, to include during his Board hearing testimony noted above. The Veteran is competent to describe symptoms observable to his senses; as such, he is also competent to diagnose tinnitus. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Charles v. Principi, 16 Vet. App. 370, 374 (2003). The Board therefore finds that the Veteran has tinnitus, and that competent and probative lay evidence indicates that it as likely as not began on or around the time of the established in-service exposure to acoustic trauma and continued thereafter. With this in mind, entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. It is noted that for chronic diseases under 38 C.F.R. § 3.309 (a), such as organic disease of the nervous system, an award of service connection is permissible based solely on evidence of continuity of symptomatology, per Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board further finds the evidence to at least be in equipoise as to whether the Veteran’s current tinnitus is due to in-service acoustic trauma. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted. 38 U.S.C. § 5107 ; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss is remanded. The Veteran asserts that his bilateral hearing loss is the result of noise exposure during military service. In-service noise exposure has been conceded by the VA and he has been granted service connected for tinnitus as due to such exposure in the above decision. The Board finds that remand of this matter is necessary to afford proper development of this matter. The unfavorable opinion obtained by the December 2014 VA audiological disorders examination is not supported by adequate rationale. In relying on the normal audiological findings on separation examination, the examiner did not have available for consideration the testimony of the Veteran, which suggested that he began noticing hearing deficit a few years after active duty, beginning around 1983. The Veteran’s representative expressed dissatisfaction with the December 2014 VA audiological examination in that it failed to address whether his inservice right TM perforation was a factor in the hearing loss disability that is shown on the right. Regarding the finding that there was no hearing disability for VA purposes on the left, the representative took issue his, noting that hearing loss can be established in 3 different ways. See Transcript at 2-6, 8. The Board notes that the November 2014 VA ears disorders examination addressing the perforated TM membrane deferred consideration of hearing loss to the audiological examination, which did not address the in-service injury to the right TM as a possible factor in hearing loss. Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The thresholds for normal hearing are between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley, 5 Vet. App. at 157. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz 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. Thus, on remand the examiner must provide an etiology opinion that addresses the lay testimony and the revised audiometry scores in light of Hensley, particularly in light of the undated audiogram showing findings suggestive of some degree of hearing impairment for the right ear. Given the Veteran’s contentions of hearing loss at his September 2020 hearing, the evidentiary deficiencies of the December 2014 VA examination and the fact that there has not been medical evidence obtained since December 2014, the Board finds that a new VA examination is warranted on remand and that any pertinent records regarding his claimed hearing loss disability should be obtained. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any pertinent records not already associated with the claims file to include any VA treatment records from December 2014 to the present pertaining to claimed hearing loss. 2. After completion of #1, schedule the Veteran for a VA audiological examination to determine the nature and etiology of any claimed bilateral hearing loss disability. The claims file, including this remand, must be reviewed by the examiner and such review should be noted in the examination report. All indicated studies should be performed. If the audiological examination reveals a current hearing loss disability, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s right and/or left ear hearing loss disability is related to his period of active service, to include noise exposure and/or his perforated right tympanic membrane which was treated in service. The examiner should note that in-service noise exposure is conceded, and that service-connection is in effect for tinnitus. The examiner must provide a comprehensive rationale for each opinion provided. Specifically, the examiner should discuss the lay testimony and statements from the Veteran and any pertinent evidence obtained pursuant to this remand. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Eckart 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.