Citation Nr: 21066046 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 15-02 117 DATE: October 28, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for right ear hearing loss is remanded. FINDING OF FACT The competent and probative evidence is at least in equipoise as to whether the Veteran's tinnitus is related to acoustic trauma during her period of active service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1997 to July 2002. These matters come to the Board of Veterans' Appeals (Board) from a December 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to service connection for bilateral hearing loss and tinnitus. In July 2019, the Veteran testified at a Board videoconference hearing. A copy of the transcript is associated with the claims file. In November 2019, the Board remanded the claims for further development, to include obtaining a VA examination and medical opinion. In November 2020, the Board denied service connection for left ear hearing loss and remanded the claims of service connection for right ear hearing loss and tinnitus for an addendum VA medical opinion. In June 2021, the Board remanded the claims for additional development, to include obtaining an addendum opinion. 1. Entitlement to service connection for tinnitus The Veteran contends that current tinnitus is related to her period of active service. She reported that she has had intermittent tinnitus since service. November 9, 2012, Audiology Consult. After reviewing the medical and lay evidence of record, the Board finds that the positive and negative evidence is evenly balanced as to whether tinnitus was noted in service and continued with the same symptomatology after service. The RO conceded acoustic trauma and requested an examination. A current diagnosis of tinnitus was confirmed during an October 2013 VA examination. During that examination, the Veteran also reported that tinnitus started during service in 1999. The October 2013 examiner opined that tinnitus was less likely as not caused by or the result of military acoustic trauma. The examiner reasoned that tinnitus was first reported in March 2003 following a noise event while on vacation. By way of history, on March 25, 2003, the Veteran presented with a history of sudden hearing loss. The Veteran recounted that she was in Panama and went to a nightclub that was very loud. While there, the Veteran noticed that she could not hear. When she left the nightclub, she had ringing. The Veteran still had hearing loss when she left and realized her hearing had changed. She could not hear out of her right ear. The Veteran reported that she had never had hearing problems before. The Veteran underwent additional VA examinations in January 2020, December 2020, and July 2021. Each examiner rendered a negative nexus opinion reasoning that the first mention or evidence of tinnitus is after the post service noise event in March 2003. Neither examiner addressed the Veteran's contention that tinnitus began about two years after entering service in 1999 and continued since. The Veteran's testimony during her July 2019 Board hearing was consistent in that she testified that ringing started in the second year of the military and gradually worsened over time. The Board finds that the Veteran's lay statements concerning the onset and continuous symptoms of tinnitus since service are competent, credible, and highly probative. Because of the inherently subjective nature of tinnitus, it is readily capable of even lay diagnosis and the Veteran, as a layperson, is competent to testify or make statements as to his symptoms, specifically to experiencing tinnitus since service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The opinions of the January 2020, December 2020, and July 2021 medical examiners are competent and credible, but assigned less probative value as each examiner failed to consider and address the Veteran's lay statements regarding the onset and continuous nature of tinnitus. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (a medical opinion is inadequate if it does not consider the Veteran's reports of symptoms and history. In addition, even though March 2003 is the first written evidence of tinnitus in the record, the Veteran did not indicate to the clinician that this incident was the first time she experienced ringing in her ears. The competent and probative evidence is at least in equipoise as to whether tinnitus was noted in service with post-service continuity of the same symptomatology. As a chronic disease under 38 C.F.R. § 3.309(a), an award of service connection may be based on continuity of symptomatology. Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Any doubt on the material issue of a relationship between the present disability and the post-service symptomatology is resolved in the Veteran's favor, and the claim of service connection for tinnitus is granted. See 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013) (stating that the primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the "nexus" requirement of the three-element test, whereas the former benefits from presumptive service connection, absent intercurrent causes, or service connection via continuity of symptomatology). REASONS FOR REMAND 2. Entitlement to service connection for right ear hearing loss is remanded. The Board is not able to make a fully informed decision on the issue of service connection for right ear hearing loss. While the Board sincerely regrets additional delay, the Board finds that the July 2021 VA examination is inadequate as the examiner did not address or consider the Veteran's lay statements regarding the onset of hearing loss and did not substantially comply with all June 2021 remand directives. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history); see Stegall v. West, 11 Vet. App. 268, 271 (1998) (a Board remand confers on the Veteran, as a matter of law, the right to compliance with the remand orders). Specifically, the Veteran testified that she first started experiencing hearing loss towards the end of her tour. She explained that after two to three years in service, she started to see the degradation with her hearing. The examiner did not describe how hearing loss that results from noise exposure generally presents or develops in most cases. In addition, the examiner failed to discuss the arguments and studies contained within the May 2021 appellate brief, to include whether studies showing delayed onset of neural, central, or cochlear changes may occur as a result of noise exposure in rodent models translates and/or is applicable to humans as directed. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician to determine the nature and etiology of the Veteran's right ear hearing loss. The examiner should review the claims file and address the following. 2. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right ear hearing loss (1) manifested during active service or is otherwise related to an in-service injury, to include conceded acoustic trauma, (2) manifested within one year after discharge from service, or (3) was noted in service with continuity of the same symptomatology since service. The examiner must specifically address and consider the Veteran's contention that she noticed hearing loss during service. The examiner is asked to describe how hearing loss that results from noise exposure generally presents or develops in most cases (i.e., low tones versus higher tones, etc.). The examiner should discuss the arguments and studies contained within the May 2021 appellate brief, to include whether studies showing delayed onset of neural, central, or cochlear changes may occur as a result of noise exposure in rodent models translates and/or is applicable to humans. A rationale for all opinions is to be provided. The Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. The examiner is reminded that the lack of medical evidence is not an adequate reason for discounting the Veteran's statements. If the examiner rejects the Veteran's reports of symptoms and history, he or she must provide a reason for doing so. 3. After completing the above, and any other development as may be indicated, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ball Jackson, 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.