Citation Nr: 21074471 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 17-39 099 DATE: December 15, 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 all reasonable doubt in favor of the Veteran, the Veteran's tinnitus is causally related to his in-service noise exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303,3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served on active duty in the United States Navy from January 1964 to July 1966 and in the United States Air Force July 1966 to July 1970. This appeal comes to the Board of Veterans' Appeals (Board) from a February 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2021, the Veteran testified at virtual hearing held before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. During the hearing, the Veteran waived initial RO review of evidence received after the June 2017 statement of the case (SOC). 1. Entitlement to service connection for tinnitus. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disorder diagnosed after discharge may be service connected if all the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, to include tinnitus (as an organic disease of the nervous system), may be service-connected on a presumptive basis if manifested to a compensable degree within a specified period of time following separation (one year for organic disease of the nervous system). 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as 'chronic' in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent cause. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Furthermore, it is the responsibility of the Board to assess the credibility and weight to be given to the evidence. Hayes v. Brown, 5 Vet. App. 60 (1993). The Veteran asserts that his tinnitus is related to his loud noise exposure in service. During his military service, the Veteran worked as a jet engine technician and worked on the flight line, on aircraft carriers, and in the general aviation and engine field where he was exposed to loud noises every day. He asserts that his tinnitus began in service. The Veteran was told that the ringing in his ears would dissipate, but it never did. He had ringing in his ears continuously since service. See September 2021 Hearing Transcript. The Veteran's DD 214 for the Navy shows that his military occupational specialty (MOS) was Maintenance Mechanic, and the Veteran's DD 214 for the Air Force shows that the Veteran's MOS was Jet Engine Mechanic. The Board concedes loud noise exposure as the Veteran's MOS is consistent with the types, places, and circumstances of service which would have a high likelihood of exposure to loud noise during service. Service treatment records are silent for any complaints of, or treatment for, tinnitus. However, throughout the appeal period, the Veteran has indicated his tinnitus began in service and has had ringing in ears ever since service. Tinnitus is a condition that may be diagnosed by its unique and readily identifiable features, and the presence of the disorder is not a determination that is medical in nature and is capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002). A layperson also is competent to testify as to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). The Board finds the Veteran's statements are competent, credible, and probative of the presence of tinnitus in service and establish a continuity of relevant symptomatology of tinnitus. In January 2015, the Veteran was afforded a VA examination for hearing loss and tinnitus. The Veteran was diagnosed with recurrent tinnitus. The VA examiner opined that the Veteran had a diagnosis of clinical hearing loss, and his tinnitus was at least as likely as not (50 percent probability or greater) a symptom associated with hearing loss, as tinnitus was known to be a symptom associated with hearing loss. The examiner opined that the Veteran's current tinnitus was less likely than not a result of his active service because there was no documentation of threshold shifts or in-service complaints for tinnitus. In June 2017, the Veteran was afforded another VA examination for hearing loss and tinnitus. The Veteran was again diagnosed with tinnitus. The VA examiner opined that the Veteran's tinnitus was less likely than not caused by or a result of military noise exposure. The VA examiner explained that the Veteran's hearing was within normal limits bilaterally at separation. There were no reports of tinnitus in his service treatment records. He denied "ear, nose, or throat trouble," on his separation examination. The Board finds that the January 2015 negative VA medical opinion and the June 2017 negative VA medical opinion to both be inadequate because the VA examiners did not consider the Veteran's lay statements that he had ringing in his ears in service, and ever since service. Instead, the VA examiners rely on the absence of medical evidence as a basis for a negative medical opinion. 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; an examination must consider lay evidence of in-service incurrence or continuity of symptomatology since service). Additionally, the January 2015 VA examiner stated that the Veteran's tinnitus was a symptom associated with hearing loss. However, the Veteran is not currently service-connected for hearing loss and would not be able to be service-connected for tinnitus on a secondary basis. See Allen v. Brown, 7 Vet. App. 439 (1995) (holding that in order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) competent evidence establishing that the service-connected disability caused or aggravated the nonservice-connected disability). The Veteran was exposed to high levels of noise and is competent to report as to the onset and continuity of symptomatology of tinnitus. Upon review of all the evidence of record, the Board finds that the evidence is at least in equipoise on the question of a nexus between service and the current tinnitus. Accordingly, reasonable doubt must be resolved in favor of the Veteran, and entitlement to service connection for tinnitus is warranted. 338 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran's asserts that his hearing loss is due to his loud noise exposure as a jet engine technician while in service. He asserts that his hearing problems began in service In January 2015, the Veteran was afforded a VA examination for hearing loss and tinnitus. The VA examiner noted that the puretone threshold frequencies in the right ear could not be tested because the right ear canal was completely atretic and therefore an ear insert could not be placed for air conduction testing; a circumaural earphone was not available. The Veteran was diagnosed with sensorineural hearing loss in the left ear. The VA examiner opined that the Veteran's hearing loss was not at least as likely caused by or a result of an event in military service. The Veteran served in the Navy from 1964 to 1966 and in the Air Force from 1966 to 1970. The Veteran's MOS was jet engine mechanic with a high probability of noise. The Veteran reported exposure to loud noise levels of machinery and jet engines. However, the exit hearing examination was within normal limits, dated 1970. Hearing examinations during the time of service were also within normal limits with no threshold shifts, so there was no evidence of trauma. The Veteran's post military occupation was a truck driver. A review of the medical reports revealed that the Veteran suffered middle ear pathology in the right ear that began after separation, and that was not typical of noise exposure. The VA examiner stated that whether or not that middle ear pathology in the right ear was due to events in the military service would be beyond her scope of practice, and there was no documentation to confirm this in the claims file. Further, the VA examiner opined that the Veteran had a diagnosis of clinical hearing loss, and his tinnitus was at least as likely as not (50 percent probability or greater) a symptom associated with hearing loss, as tinnitus was known to be a symptom associated with hearing loss. In June 2017, the Veteran was afforded a VA examination for hearing loss and tinnitus. The VA examiner noted that the Veteran could not be tested for hearing loss in the right ear due to surgical atresia in the right ear. However, the VA examiner diagnosed the Veteran with conductive hearing loss in the right ear and sensorineural hearing loss in the left ear. The Veteran reported that the right eardrum was removed, and the right ear canal was surgically closed off 10 to 15 years ago, due to recurrent ear infections that occurred in the late 1970s. The Veteran reported that he hit his head on a jet while in the Navy. The VA examiner opined that the Veteran's bilateral hearing loss was not related to his military service because the Veteran's hearing was within normal limits bilaterally at separation. In September 2021, the Veteran submitted a lay statement from his wife. The Veteran's wife said that she met her husband in April 1972. She said that during that time the Veteran had problems with his hearing, and that he told her it was because he was exposed to jet engine noise in service. A remand is warranted for a new VA addendum medical opinion. Neither the January 2015 nor the June 2017 VA examiners considered the lay statements from the Veteran's wife who stated that since the time she had known the Veteran, which was shortly after he separated from service, that he had been having problems with his hearing. Moreover, during the Veteran's September 2021 hearing before the Board, the Veteran testified that his right ear was seriously damaged in an automobile accident four years after he got out of service. The medical evidence related to the vehicle accident is not of record. Therefore, a remand is warranted to obtain additional medical evidence regarding the Veteran's hearing loss and to obtain a new VA addendum opinion regarding the nature and etiology of the Veteran's hearing loss. The matters are REMANDED for the following action: 1. Obtain all VA treatment records from July 1970 to July 2014 and from June 2017 to present. 2. Request the Veteran to complete and return a VA Form 21-4142, Authorization and Consent to Release Information to the VA, for any private medical treatment received for his bilateral hearing loss, including motor vehicle accident and right ear atresia. 3. Obtain a VA addendum medical opinion to determine the nature and etiology of the Veteran's bilateral hearing loss. If an opinion cannot be rendered without scheduling a VA examination, then a VA examination should be scheduled and conducted. A copy of this remand and claims file must be reviewed. The VA examiner must consider the following: 4. Is it at least as likely as not that the Veteran's bilateral hearing loss is related to his military service or occurred within 1 year of separation from service? The VA examiner should consider the Veteran's lay statements that he was exposed to loud jet engine noises while in service and the Veteran's wife's statements that she noticed that the Veteran had hearing problems after he separated from service. See September 2021 Hearing Transcript and September 2021 Buddy/Lay Statement. (Continued on next page) All opinions must be supported by a sufficient rationale. A negative opinion cannot be solely based on the absence of medical evidence. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Crawford, 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.