Citation Nr: 21071223 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 19-26 247A DATE: November 30, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a right ankle disability is remanded. FINDING OF FACT The Veteran's tinnitus was shown as chronic in service and is not clearly attributable to intercurrent causes. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1952 to May 1954. The Board thanks the Veteran for his service. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision. In November 2021, the Veteran and a witness testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of that hearing has not yet been added to the file, as this decision is being processed under the Board's "One Touch" hearing program. A copy of this transcript will be added to the Veteran's claims file in the ordinary course of business. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c). The claims file shows that responses were received to VA requests for information in May and August 2018, stating that the Veteran's record was fire related, there were no service medical records saved from the fire, and there were no pertinent morning or sick reports found. The Board notes that VA has a heightened duty to assist a claimant where records are deemed fire related or otherwise lost. 1. Entitlement to service connection for tinnitus The Veteran testified that he first experienced ringing in his ears following discharge of 90mm guns while serving as a tank driver in service. The Veteran is competent to report symptom experiences. Certain chronic diseases will be presumed related to service 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, 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). When a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, no matter how remote in time from the period of service, will be service connected unless clearly attributable to causes unrelated to service ("intercurrent" causes). 38 C.F.R. § 3.303(b). The Veteran has a current diagnosis of tinnitus as evidenced by a May 2018 VA examination. Tinnitus, as an organic disease of the nervous system, is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. The May 2018 VA examiner recorded that the "Veteran reports first noting tinnitus after service, does not recall exact date or circumstance of onset." However, the Veteran testified that he first experienced ringing in his ears following discharge of 90mm guns while serving as a tank driver in service. The Board interprets the Veteran's collective statements as reporting that he first experienced ringing ears in service but that it became more noticeable after service. Resolving reasonable doubt in the Veteran's favor, the Board finds the Veteran's statements credible based on the circumstances of his service as a tank driver who served in combat during the Korean War. As a chronic condition, any subsequent manifestations are service-connected unless clearly attributable to intercurrent causes. The Veteran testified that after service he farmed, worked in a service station and worked in a textile mill. With respect to his work in the textile mill, he stated that special ear plugs were required that were molded to the ears. He indicated that he always wore ear protection in that job as employees were fired if they were written up for lack of hearing protection more than a couple of times. As tinnitus has not been found to be clearly attributable to intercurrent causes, the Veteran's tinnitus, first experienced in service, is attributable to service. Entitlement to service connection for tinnitus is granted. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss The May 2018 VA examiner opined that the Veteran's bilateral hearing loss is less likely than not related to service because "[r]ecords lack evidence of threshold shifts or hearing loss during service and veteran was only in service for 2 years." The opinion is inadequate for two reasons. First, the Veteran's entrance and separation examinations are the only service treatment records that were able to be added to the file. The Veteran's hearing evaluations were performed using the whispered voice test, and the examiner did not address the reliability of such subjective methods. Second, it is unclear why the duration of the Veteran's service is relevant in this case. The record shows that the Veteran served as a tank driver in Korea during the Korean War. Based on his service history, the Veteran is presumed to have military noise exposure. Thus, a remand is required to obtain a supplemental opinion. 2. Entitlement to service connection for a right ankle disability is remanded. At the Veteran's November 2021 hearing, he reported that he sprained his right ankle in service when he jumped for a tank in Korea. The Veteran also reported that he "hopped around" for approximately six to eight weeks following the injury, and that his ankle continued to hurt after service but for several decades he self-treated the condition by taking aspirin. As noted above, VA has a heightened duty to assist the Veteran in this case because his service records were destroyed. As the Veteran has not yet been offered a VA examination for his right ankle, and as there is evidence of persistent symptoms and an indication they are related to an inservice injury, a remand is required to obtain an examination in this case. The matters are REMANDED for the following action: 1. Attempt to associate with the record all outstanding VA and non-VA treatment records. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's bilateral hearing loss is at least as likely as not related to his conceded noise exposure in service as a tank driver in Korea during the Korean conflict. The clinician should note that, as the Veteran's entrance and separation examinations utilized the whispered voice test, any reference to those tests must thoroughly explain why such a subjective measurement is probative to the question at hand. 3. Schedule the Veteran for a VA examination for his claimed right ankle disability. The examiner must review the claims file. The examiner is asked to provide a response to the following: a. Please identify all right ankle disability by diagnosis or by identifying functional impairment in earning capacity. The Veteran has reported right ankle pain since service. b. As to each identified right ankle disability, is it at least as likely as not related to service, including spraining his ankle when jumping from a tank in service? The Veteran's report should be taken as fact. Provide a rationale to support the opinions. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Beeler, C. 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.