Citation Nr: 21063009 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-43 392 DATE: October 12, 2021 ORDER Entitlement to service connection for bilateral 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, her bilateral tinnitus began during her active duty service. CONCLUSION OF LAW The criteria for service connection for bilateral tinnitus have been satisfied. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1990 to April 1999. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In July 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. 1. Service Connection for Bilateral Tinnitus Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as organic diseases of the nervous system like sensorineural hearing loss and tinnitus. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Tinnitus is a noise in the ears, such as ringing, buzzing, roaring, or clicking. YT v. Brown, 9 Vet. App. 195, 196 (1996). Tinnitus is the type of disability that is capable of lay observation. Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Veteran has a current tinnitus disability. See May 2017 VA Examination Report. The remaining question is whether the Veteran's tinnitus disability is related to service. In this case, the Veteran reported that she began experiencing ringing in her ears during service. See July 2021 Hearing Tr. at 10, July 2021 Correspondence. The Veteran's military occupational specialty (MOS) was that of a signal intelligence analyst. As part of her duties of transcribing communications, the Veteran had to wear headsets on a continuous basis. Id. at 8. The Board has no reason to doubt the Veteran's reports of experiencing tinnitus during service and presently and finds these statements credible. In May 2017, the Veteran presented for a VA examination. The examiner opined that the Veteran's tinnitus is at least as likely as not a symptom associated with the hearing loss, as tinnitus is known to be associated with hearing loss. The Board acknowledges the May 2017 VA opinion but does not assign the opinion any probative weight as the examiner did not address the Veteran's report that his symptoms existed during service. Overall, the Board finds that entitlement to service connection for tinnitus is warranted. As tinnitus, a chronic disease, was present during service and is present currently, and is not clearly attributable to an intercurrent cause, service connection is granted. See 38 C.F.R. §§ 3.303(b), 3.309(a); see also Fountain v. McDonald, 27 Vet. App. 258, 271 (2015); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). REASONS FOR REMAND 1. Service Connection for Bilateral Hearing Loss While the Board regrets the delay, additional development is necessary prior to final adjudication for the issue of bilateral hearing loss. The Veteran contends that her hearing loss began during service when she worked as a linguist working around loud generators and using headsets. See June 2017 Notice of Disagreement, August 2017 Substantive Appeal. During the July 2021 hearing, the Veteran reported that she has had hearing issues since her active duty service as a direct result of the work she performed as a signal intelligence analyst and constantly using headsets and being exposed to loud generators and firearms. See July 2021 Hearing Tr. at 3-4, 9. The Veteran also noted that there was a significant threshold shift in her hearing test in 1996. Id. at 10. In the May 2017 VA medical opinion, the examiner opined that there was no evidence of hearing loss in the Veteran's file or significant changes to hearing sensitivity from enlistment to separation. A review of the Veteran's December 1989 entrance exam audiometer and the audiometer conducted in December 1996 reveal some threshold changes. It is unclear if these were considered by the examiner. Furthermore, a review of the service treatment record indicate that the Veteran reported barely hearing out of her left ear in December 1992. She stated in August 1993 that her ears felt cloudy, and sounds were muffled. A September 2014 private treatment note indicate that the Veteran had a history of noise exposure. Based on the foregoing, the Board finds that remand is necessary to obtain an addendum VA medical opinion addressing the Veteran's reports that his bilateral hearing loss onset during service. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his bilateral hearing loss claim. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken, to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the current bilateral hearing loss onset during service or is otherwise related to an in-service injury, event, or disease, to include as due to her duties as a linguist and signal intelligence analyst constantly using a headset and being exposed to loud generators and firearms. In offering the opinion, the examiner is asked to consider December 1989 entrance exam audiometer and the audiometer conducted in December 1996 that indicate some threshold changes; the December 1992 report of barely hearing out of her left ear; the August 1993 report of her ears feeling cloudy, and sounds being muffled; and the September 2014 private treatment note indicating a history of noise exposure. The examiner should explain why the Veteran's current bilateral hearing loss is or is not merely a delayed response to in-service noise exposure. The examiner should explain the reasoning for any opinion provided, to include the medical significance of any findings, as adjudicators are precluded from making medical findings. (Continued on the next page) The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Mathew 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.