Citation Nr: 21075186 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 16-63 575 DATE: December 17, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT The Veteran has competently and credibly reported that his tinnitus had its onset during service and has been recurrent since. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1974 to June 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran requested a Board hearing via videoconference on his December 2016 VA Form 9. The Board hearing was scheduled for July 2021 at the Houston RO. In light of the COVID-19 pandemic, VA sent the Veteran and his representative a June 2021 letter notifying him of his right to a virtual hearing from a location other than the RO or to withdraw his hearing request. The Veteran submitted a letter in June 2021 withdrawing his hearing request. Therefore, the hearing request is deemed withdrawn and the Board may proceed with adjudication of this appeal. The Board remanded this matter for further evidentiary development in August 2021. The case has returned to the Board for appellate review. The Board notes that the issues of service connection for a back disability and bilateral knee disabilities were also remanded by the Board in August 2021. In September 2021, the agency of original jurisdiction (AOJ) granted service connection for these disabilities. As these claims for service connection have been granted in full, they are not before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Entitlement to service connection for tinnitus Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for 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). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing an in-service disease or injury and a nexus for chronic diseases is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (1999) (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303 (b). The Veteran seeks entitlement to service connection for tinnitus. He contends that his current tinnitus disability is related to his military occupational specialty (MOS) as an Infantryman and his exposure to acoustic trauma without hearing protection. See December 2009 Veteran's Statement in Support of Claim. The Veteran further contends that he has had ringing in his ears since his military service. Id. The Veteran, as a layperson, is competent to report current tinnitus, its incurrence in service and a connection between events in service and the current disability. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Given the nature of the disability at issue, the Veteran's lay statements are sufficient to establish tinnitus as a current disability. Additionally, the April 2010 and September 2021 VA examination reports both reflect the Veteran's complaints of tinnitus. There is evidence of a current tinnitus disability. Regarding an in-service occurrence, the Veteran's in-service MOS is listed as a Rifleman. See DD-214. As such, in-service noise exposure is conceded with an MOS with a high probability for hazardous noise. As to the question of whether there exists a nexus between the Veteran's current tinnitus disability and the conceded in-service noise exposure, the Veteran was afforded VA examinations in April 2010, September 2021, and a VA addendum opinion in October 2021. The April 2010 VA audiometric evaluation revealed complaints of tinnitus. The April 2010 examiner provided a negative nexus opinion; however, she did not consider the Veteran's assertions of continuity of symptoms from service to the present time in rendering this opinion. The Board remanded this matter in August 2021 to afford the Veteran a new VA examination that includes an opinion reflecting consideration of his assertions of continuity of tinnitus symptoms from service to the present time. Pursuant to the August 2021 Board remand, the Veteran was afforded a VA examination in September 2021. The September 2021 examiner opined that the Veteran's tinnitus is at least as likely as not a symptom associated with the Veteran's hearing loss disability and not due to his military service. The examiner noted that the Veteran's tinnitus presentation is within range of normal experience for a person with hearing loss. In September 2021, the AOJ requested an addendum opinion from the September 2021 examiner to address the Veteran's contentions, as requested by the August 2021 Board remand. The examiner submitted a VA addendum opinion in October 2021 noting that he did not agree that there was a deficiency in his examination or opinion. The examiner still did not address the Veteran's contentions and relied on the lack of a significant threshold shift in the Veteran's STRs. This error significantly diminishes the probative value of these opinions. The Board notes that the Veteran has consistently and competently reported tinnitus throughout the course of this appeal. Additionally, as described above, the VA examinations are inadequate for rating purposes. On review of the entire evidentiary record, the Board finds no reason to question the veracity of the Veteran's assertions of an in-service onset of tinnitus. Moreover, the Board highlights that the credibility of lay statements may not be refuted solely by the absence of corroborating medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). In this regard, the Board notes that the Veteran has provided lay statements as to the onset of his tinnitus. As discussed above, tinnitus is a rare type of disability that may be established on the basis of lay evidence alone when there is credible evidence of continuity of symptomatology since service. See Charles, 16 Vet. App at 374. Therefore, the Veteran is competent to state that his tinnitus began during service, and that he has continued to experience recurrent tinnitus from service to the present. The Board, therefore, concludes the evidence is balanced and resolves reasonable doubt in the Veteran's favor. The claim for service connection for tinnitus is granted. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss is remanded. The Veteran seeks entitlement to service connection for bilateral hearing loss. The Veteran contends that his current bilateral hearing loss disability is due to his MOS as an Infantryman and his exposure to acoustic trauma without hearing protection. See December 2009 Veteran's Statement in Support of Claim. Regarding a current disability, the September 2021 VA examiner confirmed the Veteran's diagnosis of bilateral sensorineural hearing loss. There is evidence of a current hearing loss disability. Regarding an in-service occurrence, as previously mentioned, excessive in-service noise exposure has been conceded due to the nature of the Veteran's MOS. The Board observes that the Veteran's January 1974 entrance audiogram showed his pure tone thresholds were: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 5 10 5 5 Left 5 10 5 0 The Veteran's May 1975 audiogram showed his pure tone thresholds were: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 5 5 5 5 Left 0 10 5 5 A January 1976 STR reveals that the Veteran was seen with an impression of flu syndrome. His ears were plugged with cerumen and the examiner could not see the Veteran's eardrums. The Veteran's June 1976 separation audiogram showed his pure tone thresholds were: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 0 0 0 0 Left 0 0 0 0 The Board notes that the Veteran's in-service audiograms do not contain findings indicative of hearing loss for VA purposes. However, there exists an insignificant downward threshold shift that can be addressed while on appeal as the downward shift indicates improvement in the Veteran's hearing although he was exposed to excessive noise. As previously mentioned, the Veteran was afforded VA examinations in April 2010, September 2021, and a VA addendum opinion in October 2021. The April 2010 VA audiometric evaluation did not reveal hearing loss disability in either ear as defined by 38 C.F.R. §3.385. The April 2010 examiner provided a negative nexus opinion; however, she did not consider the Veteran's assertions of continuity of symptoms from service to the present time in rendering this opinion. The Board remanded this matter in August 2021 to afford the Veteran a new VA examination that includes an opinion as to whether the Veteran's bilateral hearing loss is due to service and that reflects consideration of his assertions of continuity of hearing problems from service to the present time. Pursuant to the August 2021 Board remand, the Veteran was afforded a VA examination in September 2021. The September 2021 examiner provided a negative nexus opinion with the rationale that the Veteran's STRs are absent complaints of or treatment for bilateral hearing loss and his hearing loss presentation is within the range of normal experience for a person with hearing loss. The AOJ requested an addendum opinion, which was obtained in October 2021. The examiner appears to misunderstand the request. Instead of addressing the Veteran's contentions about continuity of symptoms, he noted that what happens in the time after a veteran leaves the military does not factor into disability decisions and he points to the 2010 VA opinion that also did not address the Veteran's contentions. An addendum audiological opinion is warranted. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from a VA examiner of appropriate expertise to ascertain the etiology of the Veteran's current bilateral hearing loss disability. (If it is determined that additional examination is needed, it should be scheduled in accordance with applicable procedures.) The claims file should be made available to and be reviewed by the examiner. The examiner should address the following: (a.) Whether it is at least as likely as not (50 percent or greater likelihood) that the Veteran's current bilateral hearing loss disability had its onset during the Veteran's military service; this should include whether the type of hearing loss now shown is consistent with the conceded in-service acoustic trauma, advancing age, infection, or some other cause. This should also include a discussion of the Veteran's January 1974, May 1975, and June 1976 audiogram results as well as the January 1976 STR note showing that the Veteran's ears were so plugged with cerumen that the examiner could not see his eardrums. (b.) The examiner should provide a detailed rationale for the opinion, including a discussion of the evidence of record and medical principles which led to the conclusions reached. If an opinion cannot be provided without resort to speculation, the examiner should explain why it is not possible to provide an opinion. (Continued on the next page) (c.) It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. Specifically, with regard to his MOS, the lack of hearing protection provided during his military service, and his complaints of bilateral hearing loss since his military service. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Frazier, Associate Attorney 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.