Citation Nr: 21071682 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 18-27 805 DATE: December 1, 2021 ORDER Service connection for tinnitus is granted. REMANDED Service connection for bilateral hearing loss is remanded. FINDING OF FACT The Veteran's has had tinnitus continuously since his discharge from service. CONCLUSION OF LAW The criteria to establish service connection for tinnitus have been 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 from September 1982 to September 1985. This matter comes before the Board of Veterans' Appeals (Board) from a May 2017 rating decision from a Department of Veterans Affairs (VA) regional office (RO). The Veteran had a hearing before the undersigned Veterans' Law Judge. A transcript of the hearing is part of the record. Service connection for tinnitus is granted. The Veteran has asserted that his tinnitus was caused by in-service noise exposure and a head injury. Generally, service connection may be granted for disability or injury incurred in, or aggravated by, active military service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for a claimed disorder, there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). For certain chronic disorders shown as such in service, so as to permit a finding that the disorder was incurred during service or within the presumptive period, subsequent manifestations of the same chronic disease at a later date, however remote, are service connected. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). Tinnitus is considered an "organic disease of the nervous system," and is among the chronic diseases listed under 38 C.F.R. § 3.309 (a); Fountain v. McDonald, 27 Vet. App. 258, 263 (2015). Therefore, a presumption of service connection for chronic diseases which manifest to a compensable degree within a year of discharge from active service applies to a claim for service connection for tinnitus. 38 C.F.R. § 3.307. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain at 263 (2015). At the May 2017 compensation and pension examination, the Veteran indicated that he had intermediate episodes of tinnitus since he was in service. At his May 2019 hearing, he testified that he had symptoms from the time of his discharge and that his wife had observed the symptom. The Veteran is competent to report symptoms of tinnitus. There is no evidence to contradict his account. The May 2017 examiner made no statement to indicate this account was contradicted by any evidence. Although the May 2017 examiner found tinnitus was not related to service, he did so based on the entrance and exit examination for hearing loss that are drawn into question based on the May 2020 statement from the Veteran's private audiologist. The May 2020 statement suggests that the testing was incomplete and is inadequate to determine if and to what extent the Veteran had hearing loss at the time. Therefore, the evidence is at least in equipoise as to whether the Veteran has had consistent symptoms of tinnitus since service. REASONS FOR REMAND The issue of service connection for hearing loss is remanded. The matters are REMANDED for the following action: 1. BACKGROUND FOR THE ADJUDICATOR: The Veteran alleges that either the hazardous noise exposure during service or a head injury in service caused his hearing loss. The May 2017 compensation and pension examiner stated that a comparison of the entrance and separation examinations showed persistent hearing loss with improvement. However, the May 2017 examiner did not comment on the fluctuating hearing loss ratings that showed both worsening and improvement during the Veteran's service in June 1984 and September 1984. Further, a May 2019 private audiologist indicated the in-service examinations were not reliable because that did not include a visual inspection or bone conduction testing. Therefore, the compensation and pension examiner's opinion was inadequate and does not satisfy VA's duty to assist the Veteran. Additionally, the May 2019 private audiologist stated the Veteran's hearing loss is at least as likely as not related to his service. However, this opinion does not provide any rationale to support this conclusion. It states the in-service examinations were not complete but does not state why hearing loss should be attributed to service. The May 2017 examiner made no comment on the head injury the Veteran has alleged his hearing loss is related to. In-service records indicate the Veteran sustained an injury to his head for which he received stitches. Therefore, a remand is necessary to obtain an addendum opinion that addresses the additional June and September 1984 audiological examinations, the 2019 examiner's opinion that the in-service examinations are not reliable, and in-service head injury. THE REMAND DIRECTIVES FOLLOW. 2. Return the claims file to the May 2017 VA clinician, and request s/he again review the entire claims file and respond to the inquiry below. If the examiner is not available, arrange for another appropriately-qualified VA examiner to provide an addendum medical opinion to assist in determining the etiology of the Veteran's hearing loss. All appropriate tests, studies and consultations must be accomplished, including a new medical examination if necessary, and all clinical findings must be reported in detail in the narrative portion of the examination report. The examiner must provide an opinion as to whether the Veteran's hearing loss is related to his in-service exposure to hazardous noise or an in-service head injury. Additionally, the examiner must address the May 2019 private audiologist's statements that the in-service audiological examinations were unreliable for determining hearing loss. THE EXAMINER MUST REVIEW THE ENTIRE RECORD IN CONJUNCTION WITH RENDERING THE REQUESTED OPINION, INCLUDING: A June 1984 treatment record of an audiology examination. A September 1984 treatment record of an audiology examination. September 1984 treatment records indicating the Veterans sustained an injury to his head. A July 1985 ENT consultation indicating the Veteran had bilateral thickened tympanic membranes. A May 2019 private audiologist's opinion noting the in-service examinations were unreliable to determine hearing loss. (CONTINUED ON THE NEXT PAGE) 3. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Reed, Counsel The Board's decision is only binding on this case. This action is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.