Citation Nr: 21075832 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 18-54 402 DATE: December 21, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for restless leg syndrome is remanded. FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether the Veteran's current bilateral hearing loss is related to in-service noise exposure. 2. The evidence is in relative equipoise as to whether the Veteran's current tinnitus is proximately due to the now service-connected bilateral hearing loss. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1112, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1112, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from February 1969 to February 1971, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2017 rating decision of the Department of Veterans Affairs (VA) regional office (RO), which denied entitlement to service connection for bilateral hearing loss, tinnitus, and restless leg syndrome. The Veteran timely appealed. In August 2021, the Veteran testified before the undersigned Veterans Law Judge in a virtual hearing. A copy of the hearing transcript is of record. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.§§ 1110, 1131; 38 C.F.R. § 3.303. Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addition, certain diseases, such as sensorineural hearing loss, are presumed to have been incurred in service if manifested to a compensable degree within one year after service. The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303 (b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for a disability which is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 1 Vet. App. 439 (1995). To establish secondary service connection, there must be (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) nexus evidence establishing a connection between a service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.§ 5107; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for bilateral hearing loss is granted. 2. Entitlement to service connection for tinnitus is granted. The Veteran maintains entitlement to service connection for bilateral hearing loss as the result of noise exposure during active duty service. He specifically asserts that he developed this disability as a result of in-service exposure to the hazardous noise created by boat engines, 50- and 60- caliber weapons, and grenades. The VA audiological examination conducted in March 2017 shows a bilateral hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. Thus, the first element of entitlement to service connection has been satisfied. Further, the Veteran's military personnel records show that he served as an amphibian engineer mechanic. As such, the Board has no reason to dispute his credible reports of in-service noise exposure, as his service riding in and repairing patrol boats containing large caliber weapons and grenades would reasonably include exposure to loud noises. See 38 U.S.C. § 1154 (a). Accordingly, the Board finds that the Veteran was exposed to noise during his active duty service, and the second element has been satisfied. The Board now turns to the issue of whether there is a nexus between the Veteran's bilateral hearing loss and his in-service noise exposure. There are two medical opinions of record. The first follows the March 2017 audiological examination. A VA examiner determined that it was less likely than not that the Veteran's diagnosed bilateral hearing loss was the result of military noise exposure. She reasoned that the Veteran's enlistment and separation examinations showed hearing within normal limits bilaterally at all test frequencies and that there was no evidence that the Veteran acknowledged difficulty with hearing or had complaints of tinnitus when he separated from service or in the years afterward. Given the amount of time that elapsed since the Veteran's discharge in 1971, his normal discharge audiometric results, and the lack of evidence that he reported hearing loss or tinnitus in the years following discharge, she concluded that the Veteran's current bilateral sensorineural hearing loss was less likely than not caused by or the result of noise exposure while in the military. The Board finds that the March 2017 VA medical opinion is inadequate to decide the claim. In particular, the VA examiner based the negative etiological opinion solely upon the lack of evidence of complaints of or treatment for auditory symptoms in the Veteran's service treatment records (STRs). See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied entirely on the absence of evidence in the STRs to provide a negative opinion). In this regard, the absence of evidence of an auditory pathology in the service treatment records does not preclude service connection. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (holding that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (finding that the lack of documented hearing loss while in service is not fatal to a claim for service connection.). The second opinion was proffered by the Veteran and dated in October 2017. His private audioprosthologist indicated that chances were 50 percent or more likely that the Veteran's bilateral hearing loss and tinnitus were related to his active duty service, to include his duties as a PVA boat operator which exposed him to constant noise and the detonation of a grenade on the boat where he served. The Board acknowledges that the private opinion is positive; however, there is no evidence that the private audioprosthologist had access to the claims file for review prior to providing this opinion. Additionally, his opinion is conclusory; it is not supported by detailed rationale. As such, this opinion is also inadequate to decide the claim. The Board could remand this issue for an additional opinion. However, this is unnecessary because the probative evidence reveals a currently diagnosed hearing loss disability for VA purposes, establishes in-service noise exposure based on the Veteran's military operational specialty, and the Veteran competently and credibly testified that he first started noticing hearing difficulties at separation or soon thereafter, and that in his post-service work at the Rockwell Factory he used adequate hearing protection and had annual hearing examinations until retirement in 2001. 38 C.F.R. § 3.159 (c)(4); cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). Thus, the Board finds the evidence is at least in relative equipoise as to whether the Veteran's bilateral hearing loss is related to service. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Likewise, the Board is also granting the Veteran's claim for service connection for tinnitus. Tinnitus is, by definition "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." Dorland's Illustrated Medical Dictionary, 1914 (30th ed. 2003). As such, tinnitus is "subjective," as its existence is generally determined by whether the Veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). If a veteran reports ringing in his or her ears, then a diagnosis of tinnitus is generally applied without further examination. As the Veteran has competently and credibly reported experiencing tinnitus since service, the first element of service connection is met. Further, as previously discussed, the Board finds that the Veteran was exposed to noise during his active duty service, and the second element has been satisfied. Although the March 2017 VA examiner opined that the Veteran's tinnitus was not related to service, the examiner noted that tinnitus is most often a symptom of hearing loss. The Veteran's bilateral hearing loss disability has been service-connected herein and the Board finds that the evidence is in equipoise regarding whether there is an etiological relationship between tinnitus and his service-connected bilateral hearing loss. See 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (stating that establishing secondary service connection requires evidence showing that a current disability was caused or aggravated by a service-connected disability). Therefore, again resolving doubt in the Veteran's favor, service connection for tinnitus is granted. REASONS FOR REMAND Entitlement to service connection for restless leg syndrome is remanded. The Veteran maintains entitlement to service connection for restless leg syndrome. He avers that this disability began during his active duty service and is due to Agent Orange exposure. VA is obligated to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability; the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to decide the claim. 38 U.S.C. § 5103A (d). The Veteran has a current diagnosis of restless leg syndrome and he is presumed to have been exposed to Agent Orange during his active duty service. The Veteran's service treatment records do not contain complaint, treatment, or diagnosis of the disability. However, he reports being told by his doctor that the disability is related to Parkinson's disease (or in the same family of diseases) and Parkinson's disease is presumptively related to Agent Orange exposure. Although restless leg syndrome is not an enumerated disease for which service connection be can presumed based on Agent Orange exposure, service connection can still be warranted on a direct basis. As there is competent, credible evidence of a current diagnosis of restless leg syndrome and evidence that may be indicative of an etiological relationship between this disability and hazardous exposures during service, the Board finds that there is sufficient evidence to trigger the duty to assist under McClendon, and a remand is needed for a VA examination. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following action: Schedule the Veteran for a VA examination to determine the nature and etiology of his current bilateral restless leg syndrome. The claims folder must be made available to and reviewed by the examiner prior to completion of the examination report, and the examination report must reflect that the claims folder was reviewed. All necessary tests and studies should be conducted. The examiner should first indicate all current diagnoses with regard to the Veteran's legs. Then, the examiner should offer an opinion addressing whether it is at least as likely as not (50 percent probability or more) that restless leg syndrome or any related disorder is related to service, to include exposure to Agent Orange. A complete rationale should accompany any opinion provided. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Bush 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.