Citation Nr: 21072171 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 18-47 857 DATE: December 2, 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 favor of the Veteran, his tinnitus began during active service and has been continuous since then. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(3), 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from March 1967 to March 1969. These matters come to the Board of Veterans' Appeals (the Board) on appeal from an August 2018 rating decision denying entitlement to service connection for tinnitus and bilateral hearing loss. The Veteran participated in a videoconference hearing before the undersigned Veterans Law Judge in August 2021. A transcript of this hearing is of record. 1. Entitlement to Service Connection for Tinnitus The Veteran states that he has constant bilateral tinnitus that began during service and has persisted since then. He contends that his tinnitus is due to noise exposure during service. Service connection may be granted for disabilities resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. Entitlement to service connection requires evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for an injury or disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including organic diseases of the nervous system, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C. §§ 1112, 1113; see also 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Tinnitus qualifies as a chronic disease, as it is considered an organic disease of the nervous system. See Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013). As tinnitus is a chronic disease, the Veteran can show entitlement to service connection by demonstrating continuity of symptomatology. VA treatment records from October 2016 and a July 2018 VA examination show that the Veteran has a current diagnosis of tinnitus. The first Shedden element has therefore been met. 381 F.3d at 1166-67. As to an in-service event, service treatment records are negative for complaints, treatment, or diagnosis of tinnitus. However, the Veteran reports that he first noticed/experienced his tinnitus in service. He also provided lay statements, including statements made during his July 2018 VA examination and August 2021 hearing, related to noise exposure from firing weapons due to his military occupational specialties (MOS) as a gunner, cannon crewmember, and special weapons instructor. He also states that he was exposed to a grenade explosion in his barracks. He is competent to provide such a history and the Board finds no basis to question his credibility. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). The second element of Sheddenan in-service eventis met. 381 F.3d at 1166-67. Regarding the third element of service connection, the Veteran reported during his July 2018 VA examination that he first began experiencing tinnitus during service in 1968. Again, he is competent to provide evidence that his tinnitus began during active service because lay observation is adequate to establish the presence and onset of tinnitus. Charles, 16 Vet. App. at 374. The Veteran testified during his August 2021 hearing that his tinnitus has been persistent since its onset during active service. The Veteran's reports that he has experienced tinnitus since active service are consistent. Therefore, the evidence competently and credibly shows that the Veteran's tinnitus symptoms have been continuous since active service. 38 C.F.R. § 3.303(b); see also Walker, 708 F.3d at 1339. Thus, the Board concludes that continuity of symptomatology has been established, further supporting entitlement to service connection for tinnitus. The Board notes the negative etiological opinion from the July 2018 VA examination. This opinion is insufficient for two reasons. First, the examiner relied too heavily on objective evidence from in-service audiological evaluations. His rationale discusses audiological examinations performed upon enlistment and separation from active service that showed normal hearing acuity and no significant threshold shift from enlistment to separation. The examiner also noted that the Veteran's service treatment records lack evidence of complaints of tinnitus. This rationale is inadequate because an audiological examination showing normal hearing at separation does not foreclose entitlement to service connection for tinnitus. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Second, the medical opinion fails to address the Veteran's lay statements that he experienced tinnitus since active service. See Miller v. Wilkie, 32 Vet. App. 249, 257 (2020) (holding that an examiner's failure to consider a veteran's testimony when forming a medical opinion renders it inadequate). Although the examiner noted that the Veteran began experiencing tinnitus in 1968, simply noting the Veteran's statements without actual discussion of them is insufficient. In light of these errors, the July 2018 medical opinion is entitled to limited probative weight. See Miller, 32 Vet. App. at 257; see also McKinney v. McDonald, 28 Vet. App. 15, 30 (2016). Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's tinnitus arose during service and has continued since his separation. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. (REMAND NEXT PAGE) REASONS FOR REMAND 1. Entitlement to Service Connection for Bilateral Hearing Loss The Veteran also contends that he is entitled to service connection for bilateral hearing loss. He states that hearing loss had its onset during service and was also caused by noise exposure during service. A hearing loss disability for Department of Veterans Affairs (VA) compensation purposes is defined by regulation, and impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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. The Veteran received a VA examination to determine the nature and etiology of his hearing loss in July 2018. The examiner concluded that the pure tone test results were not valid for rating purposes and not indicative of organic hearing loss. On examination, the Veteran's hearing could not be tested at all relevant pure tone thresholds, nor could speech discrimination scores be tested. The examiner explained that there was poor agreement between his pure tone thresholds and his speech discrimination scores. Furthermore, he stated that when compared to the October 2016 audiological evaluation, the Veteran's pure tone thresholds had decreased by 15-60 decibels even though his speech recognition remained unchanged. In sum, the examiner found that the results were suggestive of a functional, non-organic overlay to previously diagnosed sensorineural hearing loss. The findings made by the VA examiner are unclear. Notably, the examiner did not explain the finding of "functional, non-organic" hearing loss as opposed to sensorineural hearing loss. The examiner seemingly suggests that the Veteran was over-endorsing his hearing loss during the testing, which resulted in unreliable testing data. Such a finding would be speculative on the Board's part. For that reason, a remand is necessary because the evidence of record is insufficient to determine whether the Veteran has hearing loss for VA purposes. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination to obtain an opinion regarding the nature and etiology of his bilateral hearing loss. The Veteran's claims file must be made available to the examiner. Following review of the claims file, with any necessary examination and testing, the examiner should opine on the following: (a.) Does the Veteran have bilateral hearing loss for VA purposes? If tests cannot be conducted, an explanation should be provided. An explanation/definition should also be provided if a diagnosis of "functional, non-organic hearing loss" is made. (b.) If the Veteran does have a diagnosis of bilateral hearing loss for VA purposes, is it at least as likely as not (a 50 percent probability or greater) related to service, including noise exposure from firing weapons and a grenade explosion? (c.) If the Veteran does have a diagnosis of hearing loss for VA purposes, is it at least as likely as not (a 50 percent probability or greater) that the hearing loss: 1. Began during service; 2. Manifested within one year from discharge; or 3. Was noted during service with continuity of the same symptomatology since service? The examiner must consider (1) the Veteran's testimony that his hearing loss had its onset during service and has persisted since then and (2) the December 2011 and October 2016 audiological evaluations showing bilateral hearing loss. Provide a rationale for all opinions proffered. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M. Sachs, 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.