Citation Nr: 21071652 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 16-44 495 DATE: December 1, 2021 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. REMANDED Service connection for a cervical spine disability is remanded. Service connection for a seizure disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to August 15, 2012 is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his bilateral hearing loss is at least as likely as not related to in-service noise exposure. 2. Resolving reasonable doubt in the Veteran's favor, his tinnitus is at least as likely as not related to in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. 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 FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1988 to March 1990 in the U.S. Air Force. This matter comes before the Board of Veterans' Appeals (Board) from September 2013 and September 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. This case was most recently before the Board in October 2020, at which time the issues on appeal were remanded for further development. This case has now returned to the Board for appellate consideration. Service Connection 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. To establish service connection for a disability, a Veteran 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. Bilateral Hearing Loss and Tinnitus The Veteran contends that his bilateral hearing loss and tinnitus are related to in-service hazardous noise exposure. For VA purposes, impaired hearing is considered disabling when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or, when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In this case the Board finds that the first two elements of service connection are satisfied. The May 2021 VA examination shows that the Veteran has a diagnosis of bilateral hearing loss for VA purposes and tinnitus. See 38 C.F.R. § 3.385. In addition, the Veteran's military occupational specialty (MOS) was airlift aircraft maintenance specialist, which has a high probability of noise exposure. Regarding the third element, medical nexus, the evidence consists of a May 2021 VA examination. The examiner indicated that the claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. However, the rationale stated that an opinion could not be provided regarding the etiology of the Veteran's bilateral hearing loss and tinnitus without resorting to speculation. The examiner noted that the Veteran's MOS was aircraft maintenance specialist, which has a high probability for hazardous noise exposure. Additionally, the Veteran reported that during service, he was exposed to noise from the shooting range, weapon fire, aircraft mechanic, flight lines, jet engines, and engine runs. He also reported recreational noise exposure after service, including weapon fire with intermittent use of hearing protection. The examiner stated that based on the evidence available, he is unable to say whether tinnitus is the result of exposure to fireworks as a child (pre-service), from military noise exposure, or the result of recreational noise exposure post service. The examiner stated that without a separation audiogram available for review, the presence or absence of hearing loss at separation or threshold shift during service cannot be established. The Board finds that the evidence is at least in equipoise as to whether the Veteran's hearing loss and tinnitus are related to service. Although the May 2021 VA examiner stated that an opinion could not be offered without resort to speculation, the explanation provided by the examiner essentially states that hearing loss was equally likely due to service noise or civilian noise. Such an explanation meets the equipoise standard. Moreover, there are no other opinions of record. Additionally, the Board notes that seeking to obtain negative evidence against the Veteran is prohibited by VA law. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). For these reasons, the Board finds that the evidence is at least in equipoise as to whether the Veteran's bilateral hearing loss and tinnitus are related to service, and service connection is therefore granted. REASONS FOR REMAND Cervical Spine Disability The Veteran was afforded a VA examination in May 2021. The VA examiner opined that the Veteran's cervical spine disability was less likely than not incurred in or caused by service. However, the Board finds the opinion inadequate for adjudication purposes because it relies on the lack of documentation in the Veteran's service treatment records. Additionally, the Board finds the March 2016 VA opinion regarding secondary service connection inadequate for adjudication purposes because it does not address aggravation. Accordingly, a new VA medical opinion should be obtained on remand. Seizure Disability With respect to the Veteran's claim of service connection for a seizure disability, the claim is inextricably intertwined with the remanded issue of service connection for a cervical spine disability. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). TDIU Prior to August 15, 2012 With respect to the Veteran's claim of entitlement to a TDIU prior to August 15, 2012, the claim is inextricably intertwined with the remanded service connection claims and is therefore remanded. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Obtain an addendum opinion from an appropriate clinician regarding the nature and etiology of the Veteran's claimed cervical spine disability. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. After complete review of the claims file, the clinician should opine as to the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's cervical spine disability had its onset during service or is otherwise related to active service. The clinician should specifically review and address the complaints and medical treatment related to the Veteran's cervical spine during service and shortly after service. See STR received January 1991; see also November 1992 Medical Treatment Record. The clinician should also consider the claimed in-service injury that the Veteran testified to during the December 2012 Board Hearing. The clinician is advised that an opinion based solely on lack of documentation in service and since service is not sufficient. (b.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's cervical spine disability was (1) caused or (2) aggravated by his service-connected lumbar spine degenerative disc disease with loss of lumbar lordosis. The clinician is advised that aggravation is defined as any increase in severity beyond the natural progress of disability. Separate rationales must be provided for each question listed above. The clinician should consider the lay statements of record and the Veteran's medical history. A complete rationale should be provided for all opinions and conclusions expressed. 3. If the Veteran's claimed cervical spine disability is determined to be service-connected, obtain an opinion, with a complete rationale, as to whether is it at least as likely as not (50 percent probability or greater) that a seizure disorder is (1) caused or (2) aggravated by his service-connected cervical spine disability. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Kernen, 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.