Citation Nr: 21066647 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 18-34 258A DATE: November 1, 2021 REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. Entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1964 to December 1965. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. The VLJ held the record open for 90 days for the submission of additional evidence. No evidence was subsequently submitted by the Veteran or his representative. The Board notes that the Veteran filed a substantive appeal more than 60 days of the mailing date of the May 2018 statement of the case. However, the substantive appeal is timely because it was received within one year of the mailing of the notification of the July 2017 rating decision. 38 C.F.R. § 19.52(b). Thus, the Board finds that it has jurisdiction over the issues, and waiver of the substantive appeal requirement is not required. See Percy v. Shinseki, 23 Vet. App. 37, 46 (2009). 1. Entitlement to service connection for a bilateral hearing loss disability is remanded. 2. Entitlement to service connection for tinnitus is remanded. Issues 1-2. The Veteran, and his representative, contends that his disabilities stem from in-service noise exposure. In this regard, the Veteran argues that his military duties, as an aircraft mechanic, exposed him to loud acoustic trauma while in service. To ensure that VA has met its duty to assist, the Board finds that remand is necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). A July 2017 VA medical opinion reflects the conclusion that the Veteran's bilateral hearing loss was less likely than not incurred in or caused by an in-service injury, event or illness. The Board finds the medical opinion inadequate for adjudicative purposes. First, the opinion seems to rely, for the most part, on the absence of documented medical treatment records, during service, showing complaints or treatment for hearing loss. For example, the opinion notes that the Veteran's separation examination report reveals "hearing was within normal limits with thresholds at or below zero at time of separation." Although the Veteran, as a lay person, is not competent to opine on the etiology of the delay onset of his disability; he is, however, competent to report signs and symptoms of his disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Further, the absence of in-service evidence of hearing loss disability is not fatal to a claim for service connection for hearing loss disability. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155 (1993). Second, certain chronic diseases, such as organic diseases of the nervous system (e.g., hearing loss), will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Thus, the applicable regulation requires continuity of symptomatology, not continuity of treatment. Wilson v. Derwinski, 2 Vet. App. 16 (1991). In this regard, the Veteran testified that while in service he would experience symptoms of hearing loss. See Hearing Transcript 8-9 (June 2021). The opinion, however, does not reveal a rationale or explanation discounting the Veteran's competent observations; rather, as evidenced in the opinion, the clinician seems to have, mostly, relied on the absence of documented treatment during service without considering the Veteran's testimony. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) ("the VA examiner's failure to consider [a veteran's] testimony when formulating her opinion renders that opinion inadequate"). The Board observes that the clinician is not required to accept the Veteran's theory that his military service caused his current hearing loss, or that he had symptoms associated with the disability during or following military service if this is incongruous with the record; however, the clinician is required to fully explain why he or she disagrees with the Veteran's theory of causation, and provide a discussion of the relevant or significant medical history, clinical findings, medical knowledge or literature, etc., that support the negative medical opinion or conclusions. If another etiology is the more likely cause, the clinician must provide a complete explanation of his or her reasoning. Next, with regard to the claim for service connection for tinnitus, the July 2017 VA examination report shows that the clinician found that the Veteran did not have a current tinnitus disability. This finding, however, is absent a rationale or medical explanation. The finding, further, is not shown to be based on an accurate factual premise with consideration of the Veteran's prior medical history. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). In this regard, private treatment records show that the Veteran has reported intermittent tinnitus. The Board also observes that tinnitus is readily observable by laypersons, and medical expertise is not required to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). Therefore, the Veteran's assertion that he currently has tinnitus constitutes competent evidence of a current disability of tinnitus. Given the above, the Board finds that remand is required to obtain adequate VA medical opinions in these matters. Where VA provides an examination or obtains an opinion, it must be adequate. Barr, 21 Vet. App. 303. In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for signs and symptoms for his bilateral hearing loss disability and tinnitus, to include Costco and Kaiser Permanente. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 2. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's (1) bilateral hearing loss disability and (2) tinnitus. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. NOTE (1): The opinion should reflect consideration of the pertinent evidence of record (e.g., the Veteran's documented relevant history and assertions). In other words, consider and expressly address the Veteran's theory that his disability stems from acoustic trauma associated with his service. NOTE (2): The clinician is not required to accept the Veteran's theory that his military service caused his disabilities, or that he had symptoms associated with either disability during or following military service if this is incongruous with the record; however, the clinician is required to fully explain why he or she disagrees with the Veteran's theory of causation, and provide a discussion of the relevant or significant medical history, clinical findings, medical knowledge or literature, etc., that support the negative medical opinion or conclusion(s). An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. The clinician must opine on: (a) Whether the Veteran's bilateral hearing loss disability at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) is related to an in-service injury, event, or disease. Explain. (b) Whether the Veteran's tinnitus at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) is related to an in-service injury, event, or disease. Explain. 3. Ensure that the medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Griffey, 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.