Citation Nr: 21064908 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 19-00 016A DATE: October 22, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for lumbar spine disability is remanded. Entitlement to service connection for neck disability is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his bilateral hearing loss is at least as likely as not related to his military service. 2. Resolving reasonable doubt in the Veteran's favor, his tinnitus is at least as likely as not related to his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.385. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1971, to June 1973. These matters are before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran testified before the undersigned Veterans Law Judge during a Virtual Board hearing. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). 1. Entitlement to service connection for bilateral hearing loss The Veteran seeks service connection for bilateral hearing loss that incurred, he asserts, because of his exposure to excessive levels of noise during his time in service. The Board concedes that the Veteran had a moderate probability of noise exposure during military service based on his Military Occupational Specialty of a Shipfitter. He indicated that he was around noisy equipment without any hearing protection. A March 2018 VA examination confirms current hearing loss, which is disabling for VA purposes, indicating that the Veteran has "Bilateral Moderate Severe SNHL [sensorineural hearing loss] above 1K Hz." 38 C.F.R. § 3.385. Thus, the current disability requirement is satisfied. Regarding the in-service requirement, service records confirm that the Veteran served as a Shipfitter. His assertions that he was exposed to hazardous noise exposure due to his military occupational specialty has been conceded. The Board finds that the Veteran was exposed to the levels of noise in service he described. Thus, the in-service occurrence or injury requirement is likewise satisfied. Turning to the final question of whether a causal relationship exists between the present disability and service, the opinion provided in the March 2018 VA examination is inadequate regarding bilateral hearing loss because it appears to rest on the fact that the Veteran had normal hearing on separation from service. The fact that hearing loss was not identified during service is not fatal to a claim for service connection. A veteran may establish direct service connection for a hearing loss disability, which initially manifested several years after separation from service, by showing evidence of a current hearing loss disability and a causal relationship to active duty service. See Hensley v. Brown, 5 Vet. App. 155 (1993); see also 38 C.F.R. § 3.303(d). Therefore, a showing of normal hearing at the last noted in-service audiogram is not sufficient to provide the sole basis for a denial of a claim for service connection for bilateral hearing loss absent any other rationale. The Veteran asserts that he has had difficulty with his hearing since his time in service. The Board finds no reason to doubt his assertions. He is competent to report difficulty with his hearing. Accordingly, the Board finds that the evidence for and against the claim is at least in equipoise. When the evidence for and against the claim is in relative equipoise, the Board must resolve all reasonable doubt in favor of the Veteran. Service connection for bilateral hearing loss is warranted. 2. Entitlement to service connection for tinnitus The Veteran seeks service connection for his tinnitus, which he contends began in service and has been recurrent since that time. All three elements of service connection are established by the competent and credible lay and medical evidence of record. The Veteran has current tinnitus. See March 2018 VA examination report. The Veteran reported he experienced the onset of tinnitus during service. He is competent to report noise exposure in service. As previously discussed, in-service noise exposure has been conceded. The Board notes that the VA examiner offered an opinion in March 2018 in which she concluded, in part, that tinnitus was not due to service, as the service treatment records (STRs) show no treatment for, or complaints of, tinnitus. The Board finds that the evidence is at least in equipoise on the question of whether tinnitus is related to service. Although the VA examiner opined that the Veteran's tinnitus disability was not related to service, she based her opinion essentially on the fact that STRs are silent for such disability. Lack of contemporaneous treatment records is not fatal to the Veteran's claim. Throughout the course of this appeal, he has consistently asserted that he has experienced tinnitus since his military service. The positive and negative evidence as to the etiology of the Veteran's tinnitus is in equipoise. Resolving reasonable doubt in the Veteran's favor, service connection for tinnitus is warranted. REASONS FOR REMAND 1. Entitlement to service connection for lumbar spine disability is remanded. 2. Entitlement to service connection for neck disability is remanded. The Veteran asserts that he has disabilities of the lumbar spine and neck that are related to his active service. He has not been provided VA examinations. VA must provide a medical examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to decide. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires evidence that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McClendon, 20 Vet. App. at 83. Although the Veteran's STRs are silent as to any chronic lumbar spine and neck disabilities, he has related these disabilities to lifting injuries while performing his military duties on the ship. Based on the foregoing evidence, the low threshold for obtaining VA examination(s) regarding the Veteran's claims have been met in this case and a remand is necessary in order for such to be accomplished. The matters are REMANDED for the following action: Schedule the Veteran for VA examinations with appropriate VA providers to address whether it was at least as likely as not (50 percent or greater probability) that his lumbar spine and neck disabilities are due to in-service events, disease, or injuries, to include any lifting injuries while performing his duties on active duty. The examiner is informed that the Veteran is competent to report in-service injuries, although such is not documented. The examiner(s) must provide adequate reasoning/rationale for all opinions provided. (Continued on the next page) The examiner(s) must consider functional impairment as a current diagnosis/disability. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. McPhaull, 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.