Citation Nr: 21069073 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 17-23 046 DATE: November 17, 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 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 April 1991 to April 1994. This case comes to the Board of Veterans' Appeals (Board) on appeal from a July 2014 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. The Veteran was scheduled to attend a Board hearing on September 17, 2021. However, he did not appear for the Board hearing and did not provide good cause for his failure to appear. Therefore, his hearing request is deemed to have been withdrawn. 38 C.F.R. § 20.704(d). 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 A June 2014 VA examination report reflects a diagnosis of tinnitus. As such, the first element required to establish service connection, a current disability, has been satisfied. In service, the Veteran's Military Occupational Specialty (MOS) was armor crewman. In a May 2017 statement, the Veteran stated that his MOS required that he work with loud tanks. He additionally described his noise exposure stating that he drove tanks, loaded the guns, and stood next to the tanks as they were fired. Therefore, noise exposure during service has been conceded, and the second element for service connection, an in-service incurrence, event, or injury, has been established. As to the final element required to establish service connection, a nexus between the in-service incurrence and the current disability, service treatment records contain no treatment, complaints, or a diagnosis of tinnitus while in service. Nonetheless, a Veteran may still establish service connection for current hearing disability and tinnitus by submitting medical evidence that the current disability is casually related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). The Veteran was afforded a VA examination in June 2014, and the VA examiner did not specifically opine as to whether the Veteran's tinnitus was a result of military noise exposure. Instead the examiner stated that the Veteran's tinnitus is at least as likely as not a symptom associated with hearing loss, as tinnitus is known to be a symptom associated with hearing loss. 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 June 2014 medical opinion is of little probative value concerning the Veteran's tinnitus. While the examiner stated that the Veteran's tinnitus is due to his hearing loss, the examiner stated that the Veteran's enlistment examination indicated the Veteran had normal hearing in the right ear and mild loss in the left. The examiner also documented that a March 1994 medical examination indicated the Veteran's hearing thresholds were within normal limits in the right ear, and a moderate loss in the left. The examiner also indicated that there were no records to examine between 1994 and 2014. While the examiner stated that the Veteran's tinnitus is most likely due to his hearing loss, the examiner appears to have relied on a lack of in-service complaints and treatment contained in the Veteran's service treatment records. The Board finds that the examiner's assertion that the Veteran had normal hearing at the time of discharge, without more, was an insufficient basis for the negative opinions. Service connection for a current hearing loss disability under 38 C.F.R. § 3.385 is not precluded where the Veteran's hearing was found to be within normal limits on audiometric testing at separation from active military service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Even if disabling loss is not demonstrated at the time of separation, evidence of a current hearing loss disability under 38 C.F.R. § 3.385 and a medically sound basis sufficient to attribute that disability to service (as opposed to after-service causes) may serve as a basis to grant entitlement to service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). 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 hearing loss and tinnitus must be considered in the service-connection analysis. As the Board finds the October June 2014 medical opinion inadequate, it is given little evidentiary weight. As already noted, the Veteran is considered competent to testify as to the observable symptoms such as ringing in his ears. Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran has consistently and credibly maintained the circumstances in which he was exposed to noise in service and his tinnitus. As the Board finds that the Veteran is competent and credible with respect to his continuing symptoms of tinnitus, 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). Tinnitus, as a chronic disorder of the nervous system, can also be linked to service by way of the Veteran's credible statements with respect to 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's June 2014 VA medical examination indicates that the Veteran has bilateral hearing loss for VA purposes. 38 C.F.R. § 3.385. The Veteran was provided with a VA medical examination in June 2014. The examiner noted that the Veteran's enlistment examination indicated normal hearing in the right ear and mild loss at the left. The examiner also noted the March 1994 examination indicated that there were hearing thresholds within normal limits for the right ear and at a moderate loss in the left. Further, the examiner documented that the Veteran had left ear surgery, a month prior to the June 2014 VA examination. Finally, the examiner found a lack of medical records between 1994 and 2014. In addressing the etiology of the Veteran's hearing loss, the examiner concluded that the hearing loss is less likely than not related to in-service noise exposure. The examiner noted the configuration of hearing loss, severe to profound at the left ear, and moderate loss at the right, are not consistent with excessive noise exposure. Additionally, the examiner stated that there were inconsistencies in testing. While the examiner stated that the configuration of hearing loss is inconsistent with excessive noise exposure, the Veteran's in-service noise exposure was not addressed. Specifically, the Veteran has elaborated that his left ear hearing loss being different than the right could be due to his MOS requiring the loading of guns on tanks, specifically that the gun is always on the left-hand side of the loader. Additionally, the examiner did not address the March 1994 medical history, in which the Veteran indicated "don't know" for hearing loss, indicating that hearing loss may have begun in service. As the VA examiner failed to adequately address the Veteran's lay statements, the opinion is inadequate for the purpose of adjudicating the Veteran's appeal. The Board notes that 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 (issued in March 2010) 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 and tinnitus must be considered. See Training Letter 10-02 (issued in March 2010). The Board concludes that June 2014 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 remains inadequate for the purpose of readjudicating the Veteran's appeal. 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 from an appropriate examiner, other than the June 2014 examiner, 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 loss is at least as likely as not (i.e., a 50 percent probability or greater) 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.