Citation Nr: 21074944 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-15 419 DATE: December 16, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT In affording the benefit of the doubt to the Veteran, the Board finds that he has tinnitus which is at least as likely as not attributable to in-service noise exposure. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1111, 1112, 1153, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from December 1980 to April 1981, with additional National Guard service. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). These matters were before the Board in January 2019, at which time they were remanded for further development. Following the issuance of a September 2020 supplemental statement of the case continuing the denial of both service connection claims, the case was returned to the Board for its adjudication. Entitlement to Service Connection for Tinnitus The Veteran acknowledges that his tinnitus manifested after service but contends that the condition is nevertheless attributable to his exposure to hazardous levels of noise while in service. Entitlement to service connection requires evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board concludes that the Veteran has a current diagnosis of tinnitus and that, granting the Veteran the benefit of doubt, the evidence is at least in equipoise as to whether it is related to in-service noise exposure. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303(a). Initially, the Board notes that the Veteran is competent to state that he has ringing in his ears, and thus the Board finds that he currently has tinnitus. Charles v. Principi, 16 Vet. App. 370 (2002). The only question that remains is whether the Veteran had in-service noise exposure that the tinnitus is attributable to. A review of the Veteran's DD Form 214 shows that his military occupational specialty was as a calvary scout and furthermore that he received a marksman badge in service reflecting regular usage of firearms during service. On this basis, the Board finds that there is a high probability that the Veteran was exposed to hazardous levels of noise in service. The nature and likely etiology of the claimed hearing disabilities, to include tinnitus, was evaluated in an April 2014 VA audiology examination, during which the Veteran reported that he began experiencing ringing in his ears in service. After a review of the claims file, the examiner found that it was less likely than not that the tinnitus was incurred in or otherwise attributable to service. In support thereof, the examiner relied on the fact that the Veteran reported that his tinnitus started while doing auto body work without hearing protection. Pursuant to the Board's January 2019 remand instructions, the nature and etiology of the tinnitus was evaluated in a September 2020 VA audiology examination, during which the Veteran reported that he experienced ringing in his ears two or three times per week. He also related that he did not recall when his tinnitus symptomatology began. After concluding a review of the claims file, the examiner found that the tinnitus was likely a symptom of the Veteran's hearing loss but that it was less likely than not that the condition was incurred in or otherwise attributable to service. In support thereof, the examiner noted that the Veteran reported the onset of his tinnitus symptoms occurred post-service; furthermore, the examiner detailed that medical literature did not support late onset noise-induced tinnitus. The Board acknowledges the negative etiology opinions of both the April 2014 and September 2020 VA examiners and the fact that they correctly noted that the Veteran did not report experiencing any tinnitus symptoms while in service. However, the examiner did not properly consider the Veteran's lay reporting of the onset and continuing symptomatology of his tinnitus. He has consistently reported that he developed ringing in the ears after service, and his symptoms correlate with the circumstances of his service. Moreover, the Board observes that ringing or buzzing in the ears, while annoying, may not be a complaint that is readily reported, and thus does not find significant probative value in the fact that the Veteran did not report experiencing any tinnitus symptoms while in service or that he only began noticing such symptoms after his discharge from service. In summation, the Veteran's statements are competent, credible, and probative, and notwithstanding the existence of evidence that does not support entitlement to the benefit sought, the Board finds that the record reasonably supports entitlement of the Veteran to service connection for tinnitus based on the Veteran's lay statements. The evidence of record demonstrates that the Veteran has tinnitus; that he was exposed to acoustic trauma in service; and that he has experienced tinnitus since service. Consequently, service connection for tinnitus is granted. 38 U.S.C. § 5107(b). REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss is remanded. The Veteran underwent a VA examination in April 2014, where he was confirmed to have hearing loss and tinnitus. The examiner stated that he could not provide a medical opinion regarding the etiology of the Veteran's hearing loss because no exit audiogram results were available to determine whether he had hearing loss when he separated from service. He also stated that the audiogram results from the April 2014 examination are invalid because of inconsistencies. He opined that his tinnitus is less likely than not related to his service because the Veteran reported that it started while doing auto body work without hearing protection. The Board remanded these matters in January 2019 for a new VA examination and for the RO to obtain the Veteran's outstanding service treatment records, including his exit audiogram results. In March 2020, it was determined that no other service treatment records could be located. A VA examination was performed in September 2020. The examiner opined that the Veteran's hearing loss is less likely than not related to his active duty service because his service treatment records showed no evidence of hearing loss and the Veteran did not notice symptoms until 2010. She also opined that the Veteran's tinnitus is at least as likely as not secondary to his hearing loss, but that it is less likely than not related to military noise exposure because his service treatment records are negative for complaints of tinnitus. The Board finds the September 2020 medical opinion inadequate because the examiner relied on an absence of service treatment records documenting hearing loss and tinnitus. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (examination inadequate where the examiner relied on the lack of evidence in service treatment records to provide negative etiology opinion). This is especially important because most of the Veteran's service treatment records, including his separation examination, cannot be located. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991) (benefit-of-the-doubt rule is heightened when service treatment records are unavailable). Accordingly, a new VA etiology opinion is warranted. Additionally, the Board notes that the precise dates of the Veteran's active duty for training (ACDUTRA), inactive duty training (IDT) and/or active duty for special work are unclear from the available record. These dates should be confirmed on remand. The matters are REMANDED for the following action: 1. Take all necessary steps to verify the Veteran's period(s) of active duty for training (ACDUTRA), inactive duty training (IDT), and/or active duty for special work. Reserve retirement point sheets are not adequate for this purpose; rather, the specific dates of the Veteran's ACDUTRA, IDT, and/or active duty for special work service are required. If this information or documentation is unavailable, this fact should be documented, and a formal finding of unavailability should be made. Notice should be given to the Veteran and his representative, and they should be given an opportunity to respond. 2. After completing #1, obtain an addendum opinion from the September 2020 VA examiner or, if she is unavailable then another similarly qualified examiner may respond instead. The entire claims folder, including a copy of this remand, must be made available for review by the examiner and such review should be noted in the examination report. A VA examination is only necessary if deemed so by the examiner. The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's bilateral hearing loss was incurred in, or is otherwise related to, his active duty service, to include conceded military noise exposure? The examiner must provide a comprehensive rationale for each proffered opinion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. (Continued on the next page) The Board notes that most of the Veteran's service treatment records, including an exit audiogram, could not be located. As such, any negative etiology opinion may not rest on an absence of documented hearing loss in his service treatment records. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. C. M. Collins Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Pratt 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.