Citation Nr: 21065963 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 18-23 381 DATE: October 28, 2021 ORDER Entitlement to service connection for right ear hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for left ear hearing loss is remanded. FINDINGS OF FACT 1. The Veteran's right ear hearing loss had its onset in service. 2. The Veteran's tinnitus had its onset in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right ear hearing loss are met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from April 1992 to April 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. Regarding the February 2017 rating decision, the Veteran timely filed his Notice of Disagreement (NOD) in October 2017 and the Statement of the Case (SOC) was issued in February 2018. Although the Board acknowledges that the April 2018 VA Form 9 was not timely, the appeal was then certified to the Board in May 2018 after requesting a statement from the Veteran's representative and the Veteran subsequently testified on the appellate issues before the undersigned; thus, the Board waives the timeliness of the substantive appeal. See Percy v. Shinseki, 23 Vet. App. 37, 43 (2009). Additionally, the Board notes that the Supplemental Claim filed on the same issues is invalid as these claims were already on appeal to the Board. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing (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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 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 (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies 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. 1. Entitlement to service connection for right ear hearing loss is granted. 2. Entitlement to service connection for tinnitus is granted. The Veteran asserts that his hearing loss and tinnitus are related to acoustic trauma sustained during active duty service as security police. See November 2020 Board Hearing Transcript. The Board agrees. Here, the Veteran has been diagnosed with right ear hearing loss for VA purposes and tinnitus, and he is competent to report the presence of tinnitus. See January 2017 VA examination report. His service treatment records (STRs) do not identify any complaints, treatment for, or diagnosis of hearing loss or tinnitus, however, the Board finds that the Veteran sustained acoustic trauma in service, based on his military occupation specialty (MOS) of security police as well as his competent and credible reports of routine exposure to aircraft noise as a result of working on the flight line, and additionally being exposed to weapons fire including a Beretta M9, M16 rifle, M60 machine gun, and a M203 small grenade launcher, which is consistent with his duties in service. See 38 U.S.C. § 1154(a). During the Board hearing he also noted that he would stand near loud generators to keep warm for up to 12 hours during the winter, which the Board also finds credible. See November 2020 Board Hearing Transcript at 3. Thus, elements one and two of service connection are met. Regarding the last element, nexus, the record contains both unfavorable and favorable evidence. Against the claim is the opinion of the January 2017 VA audiological examiner, who opined that it was less likely than not that the Veteran's current right ear hearing loss and tinnitus were due to active duty service, reasoning that there was no significant permanent shift in hearing during service. In favor of the claims are the August 2017 and March 2018 letters from his private physician, Dr. T.E.L., stating that the Veteran's right ear and also tinnitus have been present since his active duty ended and opined that his active military service resulted in significant hearing loss (noting from the Veteran that he did not experience any significant noise exposure post-service). Also, in favor of the claims is the August 2019 private opinion from Dr. J. K., who opined that the Veteran's signs and symptoms were consistent with hearing loss, which would be very consistent with noise exposure, noting that during active duty, the Veteran would work around loud military aircraft on the flight line, often times without hearing protection. During the evaluation (as at the Board hearing), the Veteran denied tinnitus before service. Based on the aforementioned findings, that doctor opined that the Veteran's hearing loss and tinnitus were related to service. The Board notes and emphasizes that the favorable August 2019 private opinion is for bilateral hearing loss as opposed to just hearing loss for the right ear. The Board finds the January 2017 VA audiologist's unfavorable opinion inadequate, as it is premised solely on the lack of documented hearing loss at service separation and fails to address the possibility of delayed-onset hearing loss and relevant lay statements of record. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Thus, the Board finds the unfavorable January 2017 VA opinion inadequate and of no probative value. In contrast, the Board finds the opinions in favor of the claim probative, as they consider the Veteran's military service, medical history, lay statements, and post-service employment. Accordingly, the private August 2017, March 2018, and August 2019 medical opinions are the only probative evidence of record as to the etiology of the Veteran's right ear hearing loss (including bilateral hearing loss), and those same opinions and the Veteran's statements constitute the only probative evidence addressing the etiology of tinnitus. As all the probative evidence of record weighs in favor of the claim, the criteria for service connection for right ear hearing loss and tinnitus are met and the appeal is granted. REASONS FOR REMAND 3. Entitlement to service connection for left ear hearing loss is remanded. The Veteran presented for a VA examination in January 2017. Examination revealed there was no diagnosis of left ear hearing loss for VA purposes. However, as discussed above, the Veteran's private audiology evaluator opined that the Veteran had hearing loss and that it was related to service. He also noted that the Veteran audiology reports reflecting hearing loss. VA is not in possession of these reports. Given the Veteran's signs and symptoms of hearing loss and lack of existing and relevant treatment records, the Board finds that a remand is in order. The Veteran should be scheduled for a new VA examination and any outstanding records should be secured. The matters are REMANDED for the following action: 1. Obtain and outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding private audiograms dated since October 2016. 3. Then schedule the Veteran for a VA audiological examination to determine whether he has left ear hearing loss for VA purposes pursuant to 38 C.F.R. § 3.385. Please note that no nexus opinion is needed, as the Board has already attributed the Veteran's hearing loss to service. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. J. Rogers, 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.