Citation Nr: 21068837 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 16-59 432 DATE: November 15, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his tinnitus began during active service. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1987 to November 1987, September 1990 to December 1990 and September 29, 2001 to September 30, 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing conducted by the undersigned Veterans Law Judge in August 2021. A transcript of the hearing has been associated with the Veteran's VA claims file. 1. Entitlement to service connection for tinnitus Laws and regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, the evidence must show: (1) the existence of a present disability; (2) 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, 1166-67 (Fed. Cir. 2004). The Board also notes that certain chronic diseases are subject to a grant of service connection on a presumptive basis when present to a compensable degree within the first post-service year. 38 C.F.R. §§ 3.307, 3.309(a). Organic diseases of the nervous system, including sensorineural hearing loss and tinnitus, are considered by VA to be chronic diseases. 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Veteran contends that his tinnitus began during active duty service and has continued since. Tinnitus was diagnosed during the September 2015 VA examination. Thus, the first element of service connection has been established. With respect to an in-service-incurrence, the Veteran testified that his tinnitus began during service while on deployment. See August 2021 Board hearing transcript. He testified that he was exposed to loud noise from working with high-powered electronic equipment, working near generators, being in close proximity to the flight line, and from 10 to 18 hour convoys in diesel engine trucks. Id. The Veteran is competent to report the events that occurred during service and the Board notes that his description of noise exposure from being in close proximity to the flight line and spending long periods of time in convoys in diesel engine trucks is consistent with the places, types, and circumstances that would be expected to occur when deployed. See 38 U.S.C. § 1154(a) (due consideration must be given to the places, types, and circumstances of a veteran's service). The Veteran's assertions regarding his in-service noise exposure and the onset, nature, and progression of his tinnitus are considered competent and credible lay evidence of such exposure sufficient to establish in-service-incurrence of such. Therefore, the second element of service connection has been established. The remaining question is whether there is a nexus, or link, between his diagnosed tinnitus and active duty service. The September 2015 VA examiner opined that the Veteran's tinnitus is less likely than not caused by or a result of an event in military service, considering the significant association between noise induced hearing loss and tinnitus. The examiner noted the Veteran had normal hearing on enlistment and normal hearing during an examination performed while the Veteran was with the National Guard, with no permanent positive threshold shift. Given that tinnitus is the type of condition that is capable of lay observation and the Veteran has provided competent and credible lay evidence establishing that his tinnitus began during service and has been constant since service, the Veteran's lay statements are considered probative evidence sufficient to support the grant of service connection. The Board acknowledges the unfavorable nexus opinion provided by the September 2015 VA examiner. However, the VA examiner did not provide an opinion concerning the contended causal relationship between tinnitus and active service, relying instead on the association between noise induced hearing loss and tinnitus. As such, the Board accords the examiner's opinion no greater probative weight than the Veteran's lay statements of record. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Under these circumstances, the Board finds the evidence is in equipoise as to whether the Veteran's tinnitus was incurred in or caused by his service. Therefore, the Board resolves all reasonable doubt in the Veteran's favor and finds the preponderance of the evidence establishes his current diagnosis of tinnitus first manifested in service and has continued since that time. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, entitlement to service connection for tinnitus is warranted. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends that his bilateral hearing loss is due to noise exposure during active duty service and that his hearing loss has worsened since his last VA examination. The Veteran was afforded a VA audiological examination in September 2015. The examination report shows that the Veteran's hearing loss rose to the level of a left ear hearing loss disability as defined by 38 C.F.R. §3.385, as the Veteran's auditory threshold at 4000 Hertz was 40 decibels. However, the examination report also shows the Veteran does not have right ear hearing loss to a degree considered disabling under 38 C.F.R. § 3.385. The VA examiner concluded that the Veteran's hearing loss is less likely than not caused by or a result of an event in military service. In support of his conclusion, the examiner compared the Veteran's January 1987 audiometric testing results at entrance with an April 1998 examination performed while the Veteran was with the Army National Guard and found no permanent positive threshold shift greater than normal measurement variability. However, the examiner did not address whether an in-service injury could have led to post-service hearing loss. In this regard, the Board notes that service connection may be granted for any injury or disease diagnosed after discharge when the evidence establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303(d). Furthermore, during the August 2021 Board hearing, the Veteran testified that his hearing loss has worsened since his September 2015 VA examination. He testified that he has had no civilian occupational noise exposure and that he is a high school teacher in his 26th year. He testified that it's mainly voice interaction which he notices especially with his students because he always must lean in and ask them to repeat themselves. Considering that the Veteran's last audiological examination occurred 6 years ago and given the possibility that the Veteran may now have right ear hearing loss to a degree considered disabling under 38 C.F.R. § 3.385, the Board finds the current evidence of record does not adequately reveal the present state of the Veteran's hearing loss. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Accordingly, the Veteran should be afforded another VA examination on remand. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and likely of his bilateral hearing loss. The Veteran's claims file must be made available to the examiner. Following examination and review of the Veteran's claim file, the examiner should provide an opinion as to: (a.) Whether the Veteran has right ear hearing loss to a degree considered disabling under 38 C.F.R. § 3.385. (b.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's diagnosed hearing loss had causal origins in service or is otherwise related to the Veteran's active duty service. (c.) In rendering an opinion, the examiner should discuss the possibility of delayed onset hearing loss due to in-service noise exposure. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion. If there is a medical reason to doubt its veracity, the examiner should explain why the Veteran's recollection is inconsistent with principles of medical science and/or the evidence in this case. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran's pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Aston, 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.