Citation Nr: 21074226 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 18-09 538 DATE: December 14, 2021 REMANDED Entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1960 to October 1963. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in October 2019. A transcript of the hearing was prepared and associated with the claims file. This case was previously before the Board in November 2019, at which time the Board remanded the matter on appeal to schedule the Veteran for a VA examination for his tinnitus and bilateral hearing loss disability. In September 2020, the Board denied the service-connection claims for bilateral hearing loss disability and tinnitus. The Veteran appealed the Board's decision as to the tinnitus claim to the United States Court of Appeals for Veterans Claims (Court). The Veteran did not challenge the portion of the Board's decision that denied entitlement to service connection for a bilateral hearing loss disability. In a July 2021 Joint Motion for Partial Remand (Joint Motion), the Veteran and the Secretary of VA (parties) agreed that the September 2020 decision should be vacated because the parties found the Board failed to provide an adequate statement of reasons or bases for its decision and its reliance on an inadequate VA medical opinion to deny the claim. In a July 2021 Order, the Court vacated the Board's September 2020 decision in part and remanded the matter on appeal to comply with the Joint Motion. The case has been returned to the Board for further development. Entitlement to service connection for tinnitus As part of the July 2021 Joint Motion, the parties agreed that the rationale provided by the December 2019 VA examination was inadequate and a new VA examination was necessary. First, the parties noted that in relying on the fact that there was no documentation of tinnitus during service, the December 2019 VA examiner failed to consider Veteran's statements made in his Notice of Disagreement (NOD), VA Form 9, Appeal to the Board, and at his Board hearing that his tinnitus started in service. While the Board determined the Veteran's statements regarding tinnitus in service were not credible, the parties determined it did not support such a finding with an adequate statement of reasons or bases. Therefore, on remand, the examiner must consider these statements. Second, in relying on the Veteran's normal hearing at separation, the parties determined the examiner failed to acknowledge that hearing loss and tinnitus are separate and distinct disabilities. As a result, the parties found that the VA examiner's suggestion that normal hearing automatically forecloses the possibility that tinnitus existed at the time of separation renders the December 2019 VA opinion inadequate. Thus, the Board finds a remand for a new VA examination is warranted. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination in connection with his claim for service connection for tinnitus. The claims file must be made available to the examiner for review, and the examination report should reflect that such review was accomplished. The agency of original jurisdiction should provide the examiner with a copy of the below facts. To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, when applicable: The Veteran served on active duty from October 1960 to October 1963. See VBMS entry with document type, "Certificate of Release or Discharge from Active duty," receipt date 03/27/2015. The Veteran's military occupational specialties during service was a movements specialist until June 1961 and a chaplain's assistant thereafter. See VBMS entry with document type, "Military Personnel Record," receipt date 01/20/2016, with "#3" in the subject field, p. 3 (item 32). The Veteran contends that he developed tinnitus while in service due to excessive noise exposure. A September 1960 Report of Medical Examination performed at enlistment into service shows that only a whispered voice test was performed, which was documented as 15/15 for both ears. See VBMS entry with document type, "STR Medical," receipt date 01/20/2016, pp. 1-2. An August 1963 Report of Medical Examination performed at service discharge shows that an audiometer examination was performed, and puretone thresholds were documented to be 15 decibels at all frequencies. See VBMS entry with document type, "STR -Medical," receipt date 01/20/2016, at pp. 5-6. The October 1963 Report of Medical History from service discharge shows that the Veteran documented a positive history of ear, nose or throat trouble, and described a history of a deviated septum. See VBMS entry with document type, "STR -Medical," receipt date 01/20/2016, at pp. 9 10. A November 2017 medical opinion shows that an audiologist contacted the Veteran via telephone to interview him regarding his service-connection claims. At that time, the Veteran was claiming he had developed both hearing loss and tinnitus due to in-service noise exposure. The audiologist acknowledged the Veteran's military occupational specialty of chaplain's assistant and commented that it had a low probability for hazardous noise exposure. The Veteran reported that he had noise exposure from various weapons fire in basic training, as well as being near the area where Howitzers and recoilless rifles were being fired in basic training. The Veteran reported he took part in yearly weapons qualifications on the range. He reported being involved in skeet shooting and was exposed to firing of missiles. The Veteran told the audiologist he mainly worked in transportation during his military service and it was not until near the end of his time in the military when he became a chaplain assistant. Occupationally, he reported working as a concrete truck driver, a delivery truck driver, and working for US Forest Service (used hearing protection when operating chain saws). The Veteran also reported a history of recreational noise exposure from using lawn mowers (uses hearing protection). The examiner noted that hearing thresholds were not obtained on the September 1960 enlistment examination and that hearing thresholds were within normal limits, bilaterally, on the August 1963 discharge examination. The examiner concluded that it was less likely than not that the Veteran's hearing loss was the result of military noise exposure, stating that there was evidence of hearing thresholds within normal limits, bilaterally, on the August 1963 discharge examination. When addressing tinnitus, the audiologist documented that the Veteran reported recurrent tinnitus. When asked to state the date and circumstance of the onset of tinnitus, the audiologist wrote, "He reports having non-localized tinnitus. The tinnitus sounds like a steam foundry. He has no idea as to an approximate time frame of tinnitus onset. He was not able to even offer a guess." The audiologist stated that she could not provide an opinion because the Veteran had "no idea as to an approximate time frame of tinnitus onset." She reiterated that he was not able to "even offer a guess. With no time frame of tinnitus onset, a history of both military and some post-miliary noise exposure, an opinion on tinnitus cannot be provided without resorting to mere speculation." See VBMS entry with document type, "C&P Exam," receipt date 11/08/2017, pp. 3-6. In the December 2017 rating decision on appeal, the adjudicator wrote that service connection for tinnitus was denied because this condition did not occur or was not caused by service. The adjudicator noted there was nothing in the service treatment records documenting a disease or injury in service, and that the service treatment records did not document tinnitus. The adjudicator wrote, "The VA medical opinion found no link between your diagnosed medical condition and military service. You were not able to offer a time frame of the onset of your tinnitus. The examiner indicated that she could not provide a medical opinion regarding the etiology of your tinnitus without resorting to speculation. As there was no evidence of this condition in service, and as you have a history of both military and post-military noise exposure, with no time frame of the onset of tinnitus, the examiner was not able to determine the etiology of your tinnitus." See VBMS entry with document type, "Rating Decision Narrative," receipt date 12/06/2017, p. 3. In December 2017 correspondence, the Veteran then wrote that he first noticed tinnitus while he was on active duty. He wrote he was exposed to gunfire when he qualified for on the M-1 rifle, he fired the 45 Cal pistol, the M-1 carbine, and the browning automatic rifle. He also wrote he shot skeet in the summer with a 12-guage shotgun for the Army and was not issued any hearing protection. The Veteran described being required to be on station during missile and rocket launches and was never issued any hearing protection. He wrote he was confused when he received the call from the audiologist, as he was unsure whether she was from the regional office or the hospital. He wrote that when she asked him about when he first noticed his hearing loss and tinnitus, that he told her he had had it since he was in the service, which seemed like forever. See VBMS entry with document type, "Notice of Disagreement," receipt date 12/18/2017, pp. 3-4. In February 2018 correspondence, the Veteran stated that he first noticed his hearing loss and tinnitus while he was in the service. He also stated he told the 2017 VA audiologist that he first noticed his hearing loss and tinnitus while he was in the service and because he had been out so long, it seemed like forever. He re-listed the weapons he used while in service to point out the in-service noise exposure. See VBMS entry with document type, "VA 9 Appeal to Board of Appeals," receipt date 02/20/2018, page 1. During the October 2019 Board hearing, the Veteran testified that he first noticed he was having problems with ringing in his ears during basic training after he "went out and qualified." He testified he first sought treatment for tinnitus three years ago. The Veteran stated that he was never offered hearing protection at the range and that he had to qualify with the M1 rifle and grenade launchers. See VBMS entry with document type, "Hearing Transcript," receipt date 10/08/2019, pp. 3-4. In November 2019, the Board sent the claim back to the regional office so that the Veteran could be provided with an in-person examination. See VBMS entry with document type, "BVA Decision," receipt date 11/25/2019. A December 2019 VA examination report shows the audiologist tested the Veteran's hearing, which showed he did not have a bilateral hearing loss disability for VA purposes. As to the tinnitus portion of the examination, the audiologist documented that the Veteran reported having tinnitus in both ears, which he noticed after basic training. The audiologist acknowledged what the 2017 audiologist documented in the examination report about the Veteran being unable to provide a time from when tinnitus began. The audiologist wrote, "With normal hearing at time of separation, inconsistent history of onset of tinnitus, noise exposure post service as well as in the service, no documented report of tinnitus in the military, (ENT in the military was related to deviated septum), hearing loss post service in onset, it is less than likely that the tinnitus is the result of his military noise exposure." See VBMS entry with document type, "C&P Exam," receipt date 12/19/2019, pp. 1 5. One of the concerns with the December 2019 opinion is that it is unclear why normal hearing at separation would be a fact that would contribute to the finding that it was less likely that tinnitus is the result of military noise exposure, as hearing loss and tinnitus are separate and distinct disabilities. See VBMS entry with document type, "CAVC Decision," receipt date 07/09/2021. The Board finds that the Veteran's subsequent allegations of having noticed tinnitus in service are not credible. The Board finds no reason to question what the audiologist documented in the November 2017 VA medical opinion regarding the Veteran's answer as to when he first noticed tinnitus. As a reminder, the audiologist wrote, "He has no idea as to an approximate time frame of tinnitus onset. He was not able to even offer a guess." The wording used by the audiologist leads the Board to believe she wrote down what the Veteran reported in that he was unable to provide an approximate time frame and that she pressed him on providing an approximate date in the hope of getting an estimated time frame for the onset of tinnitus. This conclusion is based on her sentence of, "He was not able to even offer a guess" The Veteran was claiming tinnitus as a result of in-service noise exposure, and the fact that he was unable to state when it started, leads to the undersigned to conclude that it did not start in service; otherwise, he would have stated such. This is the undersigned's belief. It does not have to be the examiner's belief as well. The examiner's review of the record is NOT restricted to the evidence listed above. This list is provided to assist the examiner in locating potentially relevant evidence. Following a review of the claims file and the above facts, the examiner is asked to offer the following opinions: 1. Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's tinnitus was incurred in or is otherwise related to in-service noise exposure that occurred while on active duty from October 1960 to October 1963? Please state upon what facts, medical principles, and/or medical literature the opinion is based. 2. If the examiner finds the evidence of normal hearing at separation to be relevant to the question of whether tinnitus, a separate and distinct disability, is related to in-service noise exposure, the examiner must support such a finding with a full rationale. A full rationale must be provided for any medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Griffin, 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.