Citation Nr: 21077244 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 18-37 370 DATE: December 29, 2021 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. REMANDED Service connection for lumbar spine degenerative arthritis is remanded. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss was reasonably shown to be related to acoustic trauma during active service. 2. The Veteran's tinnitus was reasonably shown to be related to acoustic trauma during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303(b), 3.307, 3.309. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303(b), 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Air Force from October 1972 to April 1975. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision. In December 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. Service Connection To establish service connection on a direct basis, the evidence must show: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link between the current disability and the disease or injury incurred or aggravated in service (the "nexus" element). Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). For the chronic diseases listed in 38 C.F.R. § 3.309(a), including sensorineural hearing loss and tinnitus as organic diseases of the nervous system, service connection may alternatively be established with evidence of chronicity of the disease during service or during a presumptive period following service separation. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015). For conditions noted during service (or in the presumptive period) but not shown to be chronic at the time, a continuity of symptoms after service is required to support the claim. 38 C.F.R. § 3.303(b). 1. Service connection for bilateral hearing loss Hearing loss is a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores utilizing recorded Maryland CNC word lists are less than 94 percent. 38 C.F.R. § 3.385; see also Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007). The possible left ear hearing loss documented in the Veteran's August 1972 entrance examination audiogram and referenced by the April 2016 VA examiner does not meet these criteria for a hearing loss disability. As such, the Veteran is entitled to the presumption of soundness under 38 U.S.C. § 1111. See McKinney v. McDonald, 28 Vet. App. 15 (2016). The April 2016 VA examination report established that the Veteran has a current bilateral hearing loss disability as defined in 38 C.F.R. § 3.385. The Veteran's competent and credible testimony during his December 2020 Board hearing established that he was exposed to acoustic trauma during service as a jet fighter mechanic. The Veteran's service treatment records (STRs), including a June 1973 record showing the Veteran's report of a plugged ear and ear canal drainage, an August 1973 record showing right ear canal drainage and partial loss of hearing, and September 1973 and January 1974 hearing conservation forms showing threshold shifts necessitating re-testing and the Veteran's reports of poor and fair hearing establish, that he experienced hearing and other ear-related concerns during service. Thus, the critical issue before the Board is the causal link (nexus) between the in-service noise exposure and reported ear and hearing loss symptoms and the current hearing loss disability. During his December 2020 Board hearing, the Veteran testified that his hearing loss symptoms started during service and that these symptoms have continued since then. He is competent to report these symptoms, including their onset and duration. Layno v. Brown, 6 Vet. App. 465 (1994). The Board also finds the Veteran to be credible. In contrast, the Board finds the April 2016 VA examiner's negative nexus opinion is of little probative weight. The examiner cited the 2006 Institute of Medicine (IOM) Report on noise exposure in the military as the basis for concluding that "given that the [V]eteran's hearing thresholds in both ears were within normal limits at time of his separation exam with no standard threshold shift evident in comparison to entrance thresholds, there is no evidence on which to conclude that any hearing loss that the [V]eteran may presently have in either ear, is caused by, or a result of, military noise exposure." In McCray v. Wilkie, the U.S. Court of Appeals for Veterans Claims explained that the apparently qualifying or contradictory statements in the IOM report impact the probative value and adequacy of a VA medical opinion that relied on such report. 31 Vet. App. 243, 256 (2019). Here, the examiner did not explain how those qualifying statements in the IOM study impact their opinion. See also Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (the absence of hearing loss disability in service is not in and of itself fatal to a claim for service connection for bilateral hearing loss disability). Furthermore, the opinion does not address the September 1973 and January 1974 hearing conservation data forms showing (apparently temporary) threshold shifts in the Veteran's audiogram necessitating re-tests, along with the Veteran's reports of poor and fair hearing. Most importantly, the medical opinion did not address the Veteran's competent and credible reports that he experienced hearing loss starting in service. With these limitations, the Board does not find the April 2016 VA medical opinion persuasive. Therefore, Board finds the competent evidence is at least in relative equipoise as to whether the Veteran's reduced hearing started during service and has continued since then. Service connection is warranted for bilateral sensorineural hearing loss, and the claim is granted. 2. Service connection for tinnitus The April 2016 VA examination establishes currently diagnosed tinnitus. During his December 2020 Board hearing, the Veteran reported first noticing tinnitus during his active service. As noted above, the evidence, including the hearing conservation forms, the VA examination report, and the Veteran's Board hearing testimony, establish in-service noise exposure and associated hearing loss symptoms. The VA examiner provided a negative nexus opinion for tinnitus citing the Veteran's report that the tinnitus started during the 1980s. In an August 2018 written statement, the Veteran reconciled the different reports of onset. He stated that his tinnitus started around August 1973 (during active service) when he noticed reduced hearing but became more burdensome in his daily life by the 1980s. The Veteran is competent to report symptoms of tinnitus, and the Board finds his statement and testimony to be credible. Resolving reasonable doubt in the Veteran's favor, his competent and credible statements reporting recurrent tinnitus incurred during service establish that service connection is warranted for tinnitus, and the claim is granted. 3. Service connection for lumbar spine degenerative arthritis The Veteran contends his current back disability is related to a in-service back injury. Specifically, the Veteran contends he slipped and fell approximately 7 feet onto his back in 1974 from the wing of an aircraft while performing duties as an aircraft mechanic. He was treated at the hospital and prescribed pain medication. He testified his back symptoms were present when he left the service in April 1975 and continued thereafter, including chiropractic care for his back for many years after service. See December 2020 Board hearing and January 2017 VA Form 21-0958. The April 2016 VA examiner stated that the Veteran did not have any residuals from the reported in-service back injury. However, during his December 2020 Board hearing, the Veteran stated that his back was not the same after his in-service back injury. A remand is required for the examiner to elicit and opine on the Veteran's symptoms since service and provide an updated nexus opinion. The matter is REMANDED for the following action: 1. Obtain all updated records of VA treatment. 2. Send the Veteran a letter asking him to identify all treatment providers for his back condition and to authorize VA to obtain available records for association with the claims file, to include any available chiropractor treatment records that are not already in the claims file. 3. After the above development is completed, arrange for a telehealth interview (preferred) or VA examination (only if the examiner finds that a physical examination is required to provide the opinion requested below) of the Veteran to determine the nature and likely cause of any lumbar spine disability. Based on review of the record and the interview of the Veteran, the examiner should provide an opinion with a detailed rationale that responds to the following: a.) Please identify, by diagnosis or functional impairment, all lumbar spine disabilities present during the appeal period (from August 2015 to present). b.) For each lumbar spine disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran's military service, to specifically include the muscle strain diagnosed in the November 1973 service treatment record and the Veteran's report of falling seven feet from an icy airplane wing documented in the April 2016 VA examination report and in the Veteran's December 2020 Board hearing testimony? [The Board notes the November 1973 service treatment record where the Veteran reported seeking care for back pain prior to service. Because the August 1972 entrance examination does not reflect a notation of any back or spine defect, the Veteran is presumed sound and, as directed above, the examiner should provide a nexus opinion for direct service connection, i.e., whether any diagnosed disability is related to the Veteran's in-service back symptoms or injury.] Please note that the Veteran is able to report observable symptoms, and, for the purposes of this examination only, please assume the Veteran's reports to be credible. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. A detailed explanation (rationale) is required for all opinions provided and is very much appreciated. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Robinson, Nell E. 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.