Citation Nr: 21002727 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 14-34 649A DATE: January 14, 2021 ORDER Entitlement to service connection for a right ear hearing loss disability is denied. Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for residuals of a respiratory disability is remanded. FINDINGS OF FACT 1. The Veteran’s right ear hearing loss disability is not shown to be causally or etiologically related to any disease, injury, or incident in service, and did not manifest within one year of the Veteran’s discharge from service. 2. Tinnitus was not manifest in active service and is unrelated to service. CONCLUSIONS OF LAW 1. A right ear hearing loss disability was not incurred in or aggravated by service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. 2. Tinnitus was not incurred in or aggravated by service and is not attributable to service. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January to July 1973. These matters come before the Board of Veterans’ Appeals (Board) on appeal from August and September 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Entitlement to service connection for a right ear hearing loss disability and tinnitus The Veteran contends that he is entitled to service connection for a right ear hearing loss disability and tinnitus. For reasons explained below, the Board finds that entitlement to service connection is not warranted. In order to obtain service connection under 38 U.S.C. §§ 1110, 1131 and 38 C.F.R. § 3.303 (a) a Veteran must satisfy a three element test: (1) the existence of a present disability; (2) 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 - the so- called ‘nexus’ requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection on a presumptive basis is also warranted on for chronic disabilities, such as sensorineural hearing loss, which manifest within a year after discharge from service. 38 C.F.R. §§ 3.307, 3.309. Service treatment records are silent for any right ear hearing loss disability or complaints of or a diagnosis of tinnitus. In November 2019, the Veteran submitted a private audiogram which indicated that he had current diagnosis of a bilateral hearing loss disability. No etiological opinion was provided. At a November 2020 VA examination, the Veteran reported a gradual onset of tinnitus symptoms, beginning in the late 1970s. He described the tinnitus symptoms as intermittent and lasting seconds to a minute at a time. In a November 2020 medical opinion, the clinician opined that it was less likely than not that the Veteran’s right ear hearing loss disability was related to service. The clinician reasoned that there was no significant permanent shift (beyond test variability) from entrance to separation, which was objective evidence of no permanent auditory damage on active duty from conceded noise exposure. “[A]uditory damage and hearing loss are not conceded based on noise alone. There must be a nexus of auditory damage to relate current hearing loss to military noise and not another etiology. The evidence is against a nexus in this case.” The clinician related the Veteran’s tinnitus to his hearing loss and opined against a nexus to service for the same reasons as provided for the right ear hearing loss disability. He also opined that medical literature did not support late onset noise-induced tinnitus. Based on the foregoing, the Board finds that service connection for a right ear hearing loss disability and tinnitus are not warranted. The Board finds the November 2020 VA medical opinion to be the most probative evidence of record. It was based upon a thorough review of the record, thorough examination of the Veteran, and thoughtful analysis of the Veteran’s entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999). The examiner explained why he concluded that neither the Veteran’s right ear hearing loss disability nor the tinnitus were related to the Veteran’ service. The examiner addressed the shift in hearing acuity from the entrance to exit examination and characterized it as insignificant. Although the Veteran is competent to report his symptoms of ringing in the ear and diminished hearing, he is not competent to opine on the etiology of these disabilities. Therefore, the Board does not assign any probative value to the Veteran’s assertions of any nexus between his right ear hearing loss and tinnitus and service. Presumptive service connection is also not warranted because the evidence does not show that a right ear hearing loss disability was manifest to a degree of 10 percent or more within one year from the date of separation. As the preponderance of the evidence is against the claims for service connection for a right ear hearing loss disability and tinnitus, the benefit-of-the-doubt rule does not apply, and this claim must be denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for residuals of a respiratory disability is remanded. In the September 2020 remand, the Board directed that a pulmonary physician provide an opinion as to the etiology of the Veteran’s claimed residuals of a respiratory disability. In November 2020, a nurse practitioner provided a medical opinion. The Agency of Original Jurisdiction (AOJ) failed to comply with the Board’s remand in this regard. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a Board remand “confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders”). Therefore, the Board finds that a remand is necessary to obtain a medical opinion by a pulmonary physician. The matters are REMANDED for the following action: Obtain a medical opinion from a pulmonary physician regarding the etiology of the Veteran’s claimed residuals of a respiratory disability. The electronic claims file, including a copy of this remand, must be made available to, and reviewed by, the specialist. The specialist should provide a medical opinion that expressly addresses the following: Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s residuals of a respiratory infection were incurred in or caused by service. The examiner is specifically asked to address the following: (a) November 2011 statement from Dr. R.S.W. (pulmonary physician) who opined, “Although it is difficult to separate out the clinical effects of the tobacco use from the prior respiratory infections, it is likely that [the Veteran’s] prior severe respiratory infections have contributed to his current impaired lung function.” (b) Dr. R.S.W.’s statement that the Veteran’s previous respiratory infections during service “likely left him susceptible to subsequent lung disease.” See August 2017 correspondence; see also September 2013 Disability Benefits Questionnaire (DBQ). A complete rationale (including citation to appropriate medical principles) for all opinions must be provided. *The Board is returning the matter because a pulmonary physician did not provide the November 2020 medical opinion as directed by the September 2020 Board remand. * Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Baskerville 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.