Citation Nr: 21064209 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 15-14 898A DATE: October 19, 2021 ORDER Entitlement to service connection for left ear hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for right ear hearing loss is remanded. FINDING OF FACT The Veteran's left ear hearing loss and tinnitus were incurred in active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active duty service from April 1967 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a) (2018). To establish a right to compensation for a present disability, a Veteran must show: (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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may also be granted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. 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, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 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. Thresholds for normal hearing are between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107 (b). 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for tinnitus. The Veteran contends that service connection is warranted for bilateral hearing loss. In a January 2014 written correspondence, he reported being exposed to excessive noise while in Vietnam due to the firing of cannons on a daily basis. He further reported being in 5 to 25 yards in proximity of the cannons. Additionally, the Veteran indicated that a grenade exploded within 5 feet of his head while under attack, separated by only a sandbag; and mortar round exploded within 20 feet of his head, separated by a bunker wall. The Veteran reported that these explosions caused temporary disorientation and ringing in his ears. As the Veteran's military personnel records confirm service in Vietnam, the Board finds the statements credible and concedes acoustic trauma in service. With regard to a current diagnosis, the Veteran received a VA audiology examination in January 2013 and was diagnosed with bilateral sensorineural hearing loss and tinnitus. However, audiometric findings showed the Veteran's right ear did not have a hearing loss disability for VA compensation purposes as the Veteran exhibited levels of 5, 10, 20, 25, and 30 decibels at 500 Hertz (Hz), 1000 Hz, 2000 Hz, 3000 Hz, and 4000 Hz, respectively. See 38 C.F.R. § 3.385. Alternatively, his left ear exhibited 40 decibels at 3000 Hz and 4000 Hz. Therefore, the Veteran met the requirement of a current disability for VA compensation purposes for his left ear only. 38 C.F.R. § 3.385. Concerning the etiology of his hearing loss and tinnitus, the examiner found that the Veteran's hearing loss and tinnitus were not related to service. In doing so, the examiner found that the Veteran had documented normal hearing during his time in the military without change noted over time, and his report of onset of communication difficulty over the past ten years and history of civilian noise exposure make it less likely that his left ear hearing loss is related to service. The examiner further found that the Veteran's tinnitus was a symptom of his hearing loss; therefore, tinnitus was not related to service. Conversely, the Board notes, however, that the Veteran submitted a November 2013 private audiology examination in which the examiner found that the Veteran's hearing loss was more likely due to noise exposure in service. In considering the competing medical opinions, the Board notes that the VA examiner relied on the absence of hearing loss in service in rendering a negative opinion. However, this alone does not preclude service connection. Moreover, in his January 2014 Notice of Disagreement (NOD), the Veteran reported that while his civilian occupation subjected him to noise exposure, he always wore ear protection, and the exposure was occasional. He further reported that he has always noticed diminished hearing since his time in service. The Board notes that the Veteran is competent to report his symptoms in service and the Board finds him competent and credible in this regard given his time in Vietnam. Further, the Board recognizes that the private examiner did not provide a medical rationale to support his opinion; however, "VA is not permitted to completely ignore even an 'inadequate' opinion or examination, whether it is in favor or against a veteran's claim." Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). Therefore, based on the above findings, the Board concludes that the evidence is in equipoise as to whether the Veteran's left ear hearing loss is related to service. In resolving all doubt in favor of the Veteran, the Board finds that service connection is warranted for left ear hearing loss. Tinnitus With regard to service connection for tinnitus, the Board finds that service connection is warranted. The Board notes that, tinnitus, which manifests as ringing in the ears, is not the type of medical condition which requires specialized medical knowledge or training to assess. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, the Veteran, as a lay person, is competent to report symptoms such as ringing or buzzing in his ears as this requires only personal knowledge as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Therefore, the Veteran is competent to identify a disorder such as tinnitus for diagnostic purposes and an additional examination is not essential. 38 C.F.R. § 3.159 (a)(2); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002); Falzone v. Brown, 8 Vet. App. 398, 405 (1995). Here, the Board has conceded acoustic trauma during active service. The Veteran has competently reported that explosions in Vietnam caused temporary disorientation and ringing in his ears. And, in his audiology exam and August 2012 Statement in Support of Claim, he reported that he has experienced tinnitus since his time in Vietnam and those statements have been found credible by the Board. Accordingly, the Board finds that the preponderance of evidence is in favor of the claim. Thus, service connection for tinnitus is warranted. REASONS FOR REMAND 1. Entitlement to service connection for right ear hearing loss is remanded. The Board finds additional development is necessary before the Board can properly adjudicate the claim for right ear hearing loss. As noted above, the Veteran's January 2013 VA audiology examination shows that the Veteran does not have a right ear hearing loss disability for VA purposes. In addition, while the November 2013 private examination appears to show otherwise, the Board cannot determine with certainty, and there is no indication to determine whether a Maryland CNC test was conducted pursuant to 38 C.F.R. § 4.85. Furthermore, VA treatment records show the Veteran was referred to an outside audiologist and an audiology report was scanned into his records in March 2021; however, the report has not been associated with the claims folder. As such, remand is warranted to obtain the Veteran's outstanding treatment records and to conduct a new examination to determine whether the Veteran has a right ear hearing loss disability for VA compensation purposes. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records, to include the March 2021 audiology report, and associate them with the claims folder. 2. Obtain any outstanding private treatment records related to the Veteran's hearing loss. The Veteran's assistance should be requested as needed. All obtained records should be associated with the evidentiary record. If the AOJ cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 3. Schedule the Veteran for a VA audiology examination to determine the nature and etiology of his right ear hearing loss. The claims file, to include a copy of this remand, must be made available to the examiner for review. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran has a right ear hearing loss disability that is related to hazardous noise exposure during service. The examiner is advised that noise exposure is conceded and the Veteran is competent and credible to report events that occurred in service. The examiner must consider all lay statements of record, to include the Veteran's report that the condition began in service. All opinions must be supported by a complete rationale. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Laffitte, 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.