Citation Nr: 21072172 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 19-32 274 DATE: December 2, 2021 ORDER Entitlement to service connection for bilateral tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT The appellant's bilateral tinnitus at least as likely as not began while he was in active service and has at least as likely as not persisted from his period of active service to the present. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral 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 appellant served on active duty in the United States Army from June 1965 to August 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied the claims for service connection. This decision was appealed in a notice of disagreement (NOD) received by VA in July 2018. A Statement of the Case (SOC) was issued by VA in September 2019. VA received the appellant's Substantive Appeal (Form 9) in October 2019, perfecting the appeal and requesting a hearing before a member of the Board. The appellant appeared before the undersigned Veterans Law Judge for a hearing in October 2021. A transcript of that hearing has been added to the record on appeal and was considered by the Board in the adjudication of these claims. 1. Entitlement to service connection for bilateral tinnitus is granted. The appellant contends that he developed symptoms of ringing in his ears while he was in active service with the United States Army, with symptoms beginning after significant noise exposure in his roles as a missile crewman and drill sergeant. He reported not wearing hearing protection during the course of these duties. The Board finds that duties in these roles are consistent with high probabilities for significant noise exposure. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. To establish a right to compensation for a present 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' the so-called nexus' requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including other organic diseases of the nervous system, such as tinnitus, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Because of the inherently subjective nature of tinnitus, it is readily capable of lay diagnosis. See Charles v. Principi, 16 Vet. App. 370 (2014); see also Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (stating the [l]ay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection' (quoting Layno v. Brown, 6 Vet. App. 465, 469 (1994)). Thus, the appellant is competent to report when he began experiencing tinnitus and the history of his symptoms. To that end, the appellant has consistently reported, in his statements in support of his initial claim, at his April 2018 VA examination, and at his October 2021 Board hearing, that he developed tinnitus while he was in active service and that the symptoms have persisted since his period of active service. The Board finds these statements are credible after observing the appellant's demeanor during the October 2021 Board hearing and considering the consistency of the statements across the period of time the claim has been pending. Further, the Board finds his assertions credible, as his statements are consistent with his duties as a missile crewman, which has a high probability for exposure to hazardous noise. The appellant's military occupational specialty, as noted on his DD 214, was as a Missile Crewman which has a high probability of noise exposure. The appellant reported significant unprotected noise exposure in this role. He also reported significant noise exposure, firing automatic weapons without hearing protection as part of his duties as a drill sergeant during the latter stages of his active service. As the appellant is competent to report symptoms of ringing in his ears and the Board has found his testimony on this point is at least as likely as not credible, the Board affords his reports of his onset of tinnitus symptoms and the nature and progression of those symptoms over the years substantial probative weight. The April 2018 VA examination determined the appellant's bilateral tinnitus was not at least as likely as not due to his military noise exposure because audiological testing did not find the appellant with hearing loss for VA purposes. The Board has discussed additional problems with this finding below, but notes the examiner did not consider other audiological testing to determine whether the appellant had hearing loss. Because of these findings, the examiner determined that his bilateral tinnitus could not have been due to military noise exposure because, in order for his tinnitus to be related to military noise exposure during active service, he would also need to show signs of hearing loss either in service or since service. The appellant's service treatment records are silent for reports of tinnitus; however, the lack of corroborating medical evidence, in and of itself, is not a basis to deny a claim. See Dalton v. Nicholson, 12 Vet. App. 23 (2007) (holding that the lack of documentary evidence during or after service cannot be the sole basis for an opinion against the claim); Buchannan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (addressing lay evidence as potentially competent to support presence of disability even when not corroborated by contemporaneous medical evidence). The VA medical opinion did not present any rationale which would contradict the appellant's lay reports that he began experiencing ringing in his ears while on active service and that these symptoms continued to the present. Considering this, the Board finds that the record establishes both a current disability of tinnitus, and an in-service incurrence of the disability. While the appellant's service treatment records are silent regarding complaints of tinnitus in service, for the reasons discussed above, the Board finds the appellant is competent to state that he has had tinnitus since his period of active service. The Board has also found his reports regarding his symptoms at least as likely as not credible. In weighing the evidence, the Board has determined that the appellant is competent to report his onset of symptoms and finds no reason to determine the appellant is not credible on this issue. Considering this, the Board finds the evidence is at least in equipoise on the question of whether the appellant's tinnitus began during his period of active service and continued with the same symptomatology since service. As such, granting the appellant the benefit of the doubt, the Board finds that the appellant's tinnitus disability had its onset while he was on active service and that symptoms of that disability have been recurrent since service. Gilbert v. Derwinksi, 1 Vet. App. 49, 54 (1990). Therefore, the Board concludes that the criteria for service connection are met for this claim. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The appellant contends that he has bilateral hearing loss which at least as likely as not is due to his exposure to loud noise while in active service. While the Board regrets further delay in adjudicating this claim, remand is necessary to obtain a new VA examination and medical opinion. The Board notes that this claim was previously denied by the Agency of Original Jurisdiction (AOJ) because the April 2018 VA examination did not show that the appellant's measured hearing acuity met the minimum criteria for hearing loss. See 38 C.F.R. § 3.385 (setting out specific guidelines for what levels of hearing acuity are considered "hearing loss" for VA purposes). The examiner did not provide an opinion regarding whether the appellant's reported hearing loss was related to his period of active service because the examiner found no evidence of hearing loss for VA purposes. However, after reviewing the examination record along with the other evidence of record, the Board finds the examination inadequate. As such, remand is necessary so that a new VA examination can be conducted, and a new medical opinion can be obtained. In concluding the appellant did not have hearing loss for VA purposes, the April 2018 VA examination failed to consider the results of a private audiogram which was submitted by the appellant in February 2018, which shows the appellant with levels of hearing acuity that would meet the criteria to establish hearing loss for VA purposes under 38 C.F.R. § 3.385. The examinations were conducted about 2 months apart and show wildly different results on measurable, objective testing. What complicates the matter is the test that shows worse hearing acuity is the older of the tests, and therefore the results indicate an improvement in symptoms rather than a worsening. No notes were included with the private February 2018 audiogram so it is difficult to determine whether the appropriate testing methods were used. Even so, the Board finds that the private audiogram at least raises an indication the April 2018 VA examination recorded inaccurate results. This is further buttressed by the April 2018 results themselves, which measured pure tone thresholds in decibels at 20 dB in every single frequency tested in both ears. As such, the Board finds that additional testing is necessary to confirm which set of testing results is more accurate. If the new VA examination shows hearing acuity in pure tone thresholds that does not rise to the level of hearing loss for VA purposes under 38 C.F.R. § 3.385, the examiner should address the February 2018 private audiogram and offer an opinion regarding whether those testing results are valid. Additionally, the Board finds that a nexus opinion should be obtained by VA addressing the etiology of the reported hearing loss. The Board has reviewed the private medical opinion submitted by the appellant in July 2018 which does attribute his current hearing loss to his active service noise exposure. While this opinion might have warranted a grant of the benefit sought on appeal in this case, the Board notes that this private opinion though does not provide any rationale in support of that opinion. As such, the Board finds it inadequate and does not afford it any probative weight. See Nieves - Rodriguez v. Peake, 22 Vet. App. 295 (U.S. 2008) (explaining that most of the probative value of a medical opinion comes from its reasoning). Considering this, the Board finds that remand is necessary so that a new VA medical opinion can be obtained addressing whether the appellant's claimed hearing loss, if hearing loss for VA purposes is confirmed by diagnostic testing, began while he was in active service, or is otherwise related to his in-service noise exposure. Any VA medical opinion offered must account for the fact that the appellant's separation physical does not include any audiological testing which is considered valid for VA adjudication purposes. As a final note, the Board makes no findings at this time regarding the credibility of the appellant's reports regarding his developing loss of hearing acuity while in active service or that he has experienced loss of hearing acuity in the years since his separation from active service. Credibility regarding this issue will be addressed if the issue is returned to the Board for further adjudication. The matters are REMANDED for the following action: 1. Schedule the appellant for a new audiological examination with an appropriate clinician to determine the nature and severity of any bilateral hearing loss disability. All necessary diagnostic testing should be performed. The examiner should comment on the divergent audiological findings from February 2018 and from April 2018, one of which shows hearing loss for VA purposes under 38 C.F.R. § 3.385 and one of which does not. The examiner should answer the following and provide all necessary supporting rationale: Has the appellant at least as likely as not (50 percent probability or greater) had a bilateral hearing loss disability, for VA purposes under 38 C.F.R. § 3.385, during any of the period currently on appeal? If the examiner cannot confirm a hearing loss disability for VA purposes after the additional diagnostic testing, the examiner should offer an opinion addressing the validity and significance of the February 2018 private audiogram. Did the appellant's claimed bilateral hearing loss at least as likely as not begin while he was in active service? An opinion on this question should be provided regardless of the results of the new, additional diagnostic testing. The examiner must consider the appellant's reports of experiencing a loss of hearing acuity while in active service in providing a rationale for this opinion. If the appellant's hearing loss did not at least as likely as not begin during active service, is it otherwise related to his reported in-service noise exposure? In other words, is any current hearing loss a "delayed-onset" type hearing loss? (Continued on the next page) In answering the above questions, the examiner must discuss the fact that there are no adequate, reliable audiological testing results from the appellant's separation, as he was only afforded a whisper voice test at that time. The examiner must discuss the appellant's reports that he began experiencing loss of hearing acuity while in active service, and that this loss of hearing acuity has persisted or worsened to the present day. In providing the requested opinion, consider the appellant's description of his in-service injury (as described by the appellant at his October 2021 Board hearing) and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the appellant's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the appellant's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the appellant's reports generally inconsistent with medical knowledge or implausible? K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kleponis, 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.