Citation Nr: A21016509 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 200403-75969 DATE: October 7, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT The most probative evidence of record reflects that the Veteran's tinnitus loss is related to in-service noise exposure. CONCLUSION OF LAW The criteria for establishing service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from May 1966 to May 1968. This case comes to the Board of Veterans' Appeals (Board) on appeal from a July 2019 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with the AOJ's determination, and the present appeal ensued. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). AMA became effective on February 19, 2019. The Veteran initially filed his claim in February 2019, after the AMA became effective. The Agency of Original Jurisdiction (AOJ) issued a rating decision, denying the Veteran's claims for service connection, in May 2019. The Veteran subsequently filed a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR). In July 2019, the AOJ issued the HLR decision. The Veteran filed VA Form 10182, Decision Review Request: Board Appeal, in December 2019, and elected the Direct Review docket. Therefore, the Board of Veterans' Appeals (Board) may only consider the evidence of record as of the time of the July 2019 rating decision. Entitlement to service connection for tinnitus Service connection may be established for a disability resulting from diseases or injuries which are clearly present in-service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection on a direct basis generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). Additionally, other organic diseases of the nervous system, which may include sensorineural hearing and tinnitus, are classified as "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) also applies. 38 C.F.R. § 3.307; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015) (including tinnitus as an organic disease of the nervous system). Presumptive service connection for "chronic diseases" must be considered on three bases: chronicity during service, continuity of symptomatology since service, and manifestations within one year of the veteran's separation from service. Walker, 708 F.3d at 1338. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, a layperson is competent to identify tinnitus. Charles v. Principi, 16 Vet. App. 370, 374 (2002). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall give the benefit of the doubt to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Veteran asserts that his tinnitus has been present since his return from service. The Veteran was exposed to hazardous noise, as his military occupational specialty (MOS) was heavy equipment operator. The Veteran asserts that the engines he worked around were loud, to the point that he had to shout over the noise. Additionally, the Veteran has stated that hearing protection was not required. Therefore, acoustic trauma having occurred in service is conceded. The Veteran was provided a VA examination in May 2019. The examiner noted the Veteran's diagnosis of tinnitus and noted the onset of symptoms, documenting that the Veteran stated that he has experienced a gradual onset of tinnitus, for a long time. The examiner concluded that as the Veteran's in-service audiological examinations did not note hearing threshold shifts, and no reports of tinnitus were documented during service, no nexus can be provided linking the Veteran's tinnitus to his service. Generally, the degree of probative value attributed to a medical opinion issued by a VA or private treatment provider takes into account certain factors, including the opinions thoroughness and degree of detail, and whether there was a review of the claims file. Prejean v. West, 13 Vet. App. 444 (2000). The analysis also includes whether the examining medical provider had a sufficiently clear and well-reasoned rationale and a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185 (1999). The Board has been charged with the duty to assess the credibility and weight given to the evidence. The Board concludes that the May 2019 medical opinion is of little probative value concerning the etiology of the Veteran's tinnitus. The examiner relied on a lack of complaints in the Veteran's service treatment records, and a lack of hearing loss threshold shift in service. The Board further notes that the Director of the VA Compensation and Pension Service observed in Training Letter 10-02, issued March 2010, that delayed-onset tinnitus must be considered in the service-connection analysis. The Board finds that the May 2019 examiner's assertions, without more, is an insufficient basis for the negative opinion. As already noted, the Veteran is considered competent to testify as to the observable symptoms such as ringing in his or her ears. Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran has consistently and credibly maintained that his tinnitus, a chronic disease of the nervous system, was noticed when he separated from service and has continued since. As the Board finds that the Veteran is competent and credible with respect to his continuing symptoms of tinnitus and its initial onset, the Board has assigned his statements high probative value. Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify as to ringing in the ears). Furthermore, lay evidence concerning continuity of symptoms after service, if credible, can ultimately be considered competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board further notes that is a chronic disability for which service connection may be established by way of credible statements of continuity of symptomatology. Accordingly, and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for the Veteran's tinnitus is warranted. 38 U.S.C. § 1110, 1131, 5107(b); 38 C.F.R. § 3.102; 3.303(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss is remanded. The Board notes that the Veteran has bilateral hearing loss for VA purposes, diagnosed in his May 2019 VA medical examination. 38 C.F.R. § 3.385. The Board notes that while the May 2019 VA examiner diagnosed the Veteran with bilateral hearing loss, the examiner failed to adequately address the etiology of the Veteran's hearing loss and relied on a lack of permanent threshold shift in service, and a lack of complaints in the Veteran's service treatment record, to conclude that the Veteran's bilateral hearing loss was not caused by in-service acoustic trauma. The opinion is therefore inadequate for the purpose of adjudicating the Veteran's appeal. The absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not fatal to a service connection claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In Training Letter 10-02 regarding the adjudication of claims for hearing loss and tinnitus, the Director of the VA Compensation and Pension Service indicated that the two most common causes of sensorineural hearing loss are presbycusis (age-related hearing loss) and noise-induced hearing loss (caused by chronic exposure to excessive noise). It was also noted that the presence of a notch (of decreased hearing) that may be seen on audiograms generally at frequencies of 3000, 4000, or 6000 Hertz with a return toward normal at 8000 Hertz may be indicative of noise-induced hearing loss. It was noted that delayed-onset hearing loss must be considered. Training Letter 10-02 (issued in March 2010). The Board concludes that May 2019 examiner provided an inadequate opinion for adjudicating the issue before the Board. The rationale for the examiner's unfavorable opinion is contrary to the Court's holding in Hensley and VA Training Letter 10-02, that the Veteran's claims of experiencing symptoms cannot be dismissed because of a lack of contemporaneous evidence especially in cases involving delayed-onset hearing loss. In light of above, the record for review by the Board is inadequate for the purpose of adjudicating the Veteran's appeal, and the inadequate medical nexus opinion represents a pre-decisional error in the duty to assist that must be corrected on remand. Thus, a remand is necessary to obtain an adequate nexus opinion. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The matters are REMANDED for the following action: Obtain an addendum opinion to determine the etiology of the Veteran's bilateral hearing loss. The complete file must be made available to the examiner for review in conjunction with the examination. The examiner is asked to address the following: Provide an opinion concerning whether the Veteran's bilateral hearing loss is at least as likely as not proximately due to or the result of the Veteran's conceded in-service noise exposure. *The examiner is reminded that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The examiner should provide a complete rationale for all opinions rendered. The examiner should specifically discuss the pertinent evidence of record, to include the Veteran's assertions described in this remand. If the examiner finds that he or she cannot provide any opinion without resorting to speculation, the examiner must explain why he or she is unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. W. Morgan, 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.