Citation Nr: 21003483 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 16-61 881 DATE: January 21, 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 reasonable doubt in the Veteran’s favor, his tinnitus is at least as likely as not the result of in-service noise exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served a period of active duty for training in the United States Army from May 1977 to September 1977, with additional periods of service in the Army National Guard and Army Reserve from October 1976 to May 2000. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Veteran testified before the undersigned Veterans Law Judge at a Virtual Board hearing. A transcript of the hearing is of record. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic disorders, to include tinnitus, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In such cases, the disease is presumed under the law to have had its onset in service even if there is no evidence of such disease during service. 38 C.F.R. § 3.307(a); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b); see also Walker, 708 F.3d at 1331. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Gilbert, 1 Vet. App. at 53. Entitlement to service connection for tinnitus The Veteran seeks entitlement to service connection for tinnitus, which he contends was incurred during active military service. At his November 2020 hearing, the Veteran testified that he was exposed to hazardous noise during service due to his military occupational specialty (MOS) of motor transport operator. He testified that he began experiencing ringing in his ears during service after operating heavy equipment, such as a bulldozer, and that it has continued ever since. As an initial matter, the Board notes that the Veteran is competent to describe the nature and extent of his in-service noise exposure. See C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Therefore, based on his lay testimony, the Veteran’s exposure to excessive military noise during service is conceded by the Board. Moreover, the Board notes that tinnitus is a type of disability that may be established on the basis of lay evidence alone. Charles v. Principi, 16 Vet. App. 370 (2002). As such, there is no dispute that the Veteran has a current diagnosis of tinnitus. The question remaining before the Board is whether the Veteran’s current tinnitus is etiologically related to his in-service noise exposure. Based on a careful review of the subjective and clinical evidence of record, the Board resolves all reasonable doubt in favor of the Veteran and finds that service connection for tinnitus is warranted. In a July 2015 medical opinion, a VA examiner stated that a medical opinion regarding the etiology of the Veteran’s tinnitus could not be provided without resorting to mere speculation given an absence of relevant service treatment records and in light of post-military occupational noise exposure. The Board finds this opinion to be inadequate. See Jones v. Shinseki, 23 Vet. App. 382, 390-91 (2010) (holding an examiner may not decline to provide an opinion on the basis of speculation unless the examiner has considered all procurable and assembled data and offered a reasoned basis for this conclusion). The Board recognizes that the record does not contain an adequate medical opinion with regard to the etiology of the Veteran’s tinnitus. Nonetheless, the Board finds that there is sufficient evidence in the record to decide the claim. In the absence of an adequate medical opinion to the contrary, the Board accepts the Veteran’s lay statements that his tinnitus had its initial onset during service and that it has continued ever since. See Layno, 6 Vet. App. at 469-70. Based on the Veteran’s competent and credible testimony regarding the onset and continuity of his symptoms of tinnitus, the Board finds that the evidence is at least in equipoise that the Veteran’s tinnitus was caused by his in-service noise exposure. Accordingly, resolving reasonable doubt in the Veteran’s favor, the appeal as to entitlement to service connection for tinnitus is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. REASONS FOR REMAND Unfortunately, remand is required for the issue remaining on appeal. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide this claim so that the Veteran is afforded every possible consideration. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran seeks service connection for bilateral hearing loss, which he contends was incurred during military service due to exposure to hazardous noise. At the Board hearing, the Veteran testified that he first noticed changes to his hearing during National Guard service after operating heavy construction equipment and artillery. The Veteran’s exposure to hazardous military noise has been conceded. The Board notes that a September 2020 private audiological evaluation shows the Veteran to have a current bilateral hearing loss disability for VA purposes pursuant to 38 C.F.R. § 3.385. The Veteran submitted a February 2015 private audiological evaluation and medical opinion in which a private audiologist opined that the Veteran’s bilateral hearing loss is likely related to his years of serving in the military. However, as this opinion is speculative and not based on a review of the Veteran’s military records, it cannot be used as a basis to grant the Veteran’s claim. The record also contains a July 2015 VA audiology report. The report is based on a VA examiner’s review of available medical records, without an in-person examination, using the Acceptable Clinical Evidence (ACE) process. However, after reviewing the file, the VA examiner determined that a medical opinion regarding the etiology of the Veteran’s bilateral hearing loss could not be provided without resorting to speculation. The VA examiner explained that it would be mere speculation to say that the Veteran’s current hearing loss is a result of military noise exposure given his history of post-military occupational noise exposure. The Board finds the July 2015 opinion to be inadequate. The examiner declined to provide an etiology opinion on the basis of mere speculation without providing sufficient reasons for this conclusion. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Jones v. Shinseki, 23 Vet. App. 382 (2010). Moreover, the examiner did not give adequate consideration to the relevance, if any, of the Veteran’s MOS duties or his competent reports of experiencing hearing loss during and ever since service. Once VA undertakes the effort to provide an examination or opinion when developing a service connection claim, it must provide one that is adequate for the purposes of the determination being made. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Under these circumstances, the Board finds that remand is warranted to schedule the Veteran for a VA audiological examination and to obtain a new medical opinion before the Board can render an informed decision on the Veteran’s claim. See Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). The matter is REMANDED for the following action: Schedule the Veteran for a VA audiological examination with a VA audiologist to determine the nature and etiology of his bilateral hearing loss disability. The examiner must review the claims file in its entirety, including this REMAND, and must note that review in the examination report. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. A complete history of symptoms must be elicited from the Veteran. Thereafter, the examiner should provide an opinion as to the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral hearing loss had its onset during active military service, within one year of separation, or is otherwise related to any in-service disease, event, or injury, to include military noise exposure? The term “at least as likely as not” does not mean “within the realm of possibility.” Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. It is imperative that the examiner’s report reconcile the evidence of record, to include the Veteran’s lay statements and hearing testimony, service treatment records, post-service medical records, private medical opinions, and any other pertinent lay evidence of record. The examiner is reminded that a lack of documented hearing loss during service cannot serve as the sole basis for a negative finding. The Veteran is competent to report his medical history, including when his symptoms began, and such reports must be acknowledged and considered in formulating any opinion. The Veteran’s lay contentions must be considered and weighed in making the determination as to whether a nexus exists between the claimed disability and military service. The examiner must provide a complete rationale for any opinion expressed, citing to the examiner’s clinical experience, medical expertise, and established medical principles, as necessary. If the examiner is unable to provide an opinion without resorting to speculation, he or she should fully explain why that is so and what, if any, additional evidence would be necessary before an opinion could be rendered. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Melissa Barbee, 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.