Citation Nr: A21020459 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 191016-38595 DATE: December 22, 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 any reasonable doubt in the Veteran's favor, his tinnitus manifested during service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1968 to January 1970. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a September 2019 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), issued after the implementation of the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105, also known as the Appeals Modernization Act (AMA). Within the framework of the AMA, the Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) and elected Evidence Submission Review by a Veterans Law Judge (VLJ) in October 2019. As such, this decision is based on a review of the evidence of record at the time of the September 2019 rating decision and any evidence submitted within 90 days of the October 2019 appeal to the Board. 38 C.F.R. §§ 20.202(b)(3), 20.303. The Board recognizes that the September 2019 rating decision found that new and relevant evidence had been received to readjudicate the Veteran's claim of service connection for tinnitus and that new and material evidence had been received to reopen his claim of service connection for bilateral hearing loss. These are favorable findings by the agency of original jurisdiction (AOJ) and the Board will address these claims on the merits. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c). Entitlement to service connection for tinnitus is granted. The Veteran states that his tinnitus manifested after he was exposed to excessive noise from gunfire, artillery fire, explosives, and industrial ventilation fans, without hearing protection during service. He asserted that he was assigned to a basic training unit and explained that, in addition to his work in the base kitchen, he served meals to trainees at the firing range during weapons qualifications every five to six weeks. In addition, he reported that he continued to experience tinnitus since his in-service noise exposure. Here, the Veteran's service treatment records are silent for any findings or diagnoses related to his ears or drums, to include tinnitus. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). A review of the post-service treatment records shows that the Veteran initially underwent a VA examination for hearing loss and tinnitus in August 2016. The examiner diagnosed bilateral tinnitus. During the examination, the Veteran endorsed longstanding bilateral tinnitus which he described as a constant, high-pitched ringing that varied in intensity. After performing an examination and reviewing the evidence of record, the examiner opined that it was less likely than not that the Veteran's tinnitus was caused by or the result of in-service noise exposure. In support of her opinion, the examiner noted that hearing tests conducted in conjunction with the Veteran's August 1967 and January 1970 separation reports of medical examination revealed normal hearing bilaterally with no significant threshold shifts. The examiner further noted that there were many causes of tinnitus but explained that hearing loss was the most common factor associated with it. The examiner stated that, in the absence of hearing loss or changes in hearing, the etiology of tinnitus could not be determined to a reasonable degree of certainty based on the evidence. The examiner indicated that there was no evidence to support the onset of tinnitus in the absence of hearing loss. Thus, the examiner found that, as the Veteran's January 1970 separation report of medical examination revealed normal hearing bilaterally, it was less likely than not that his tinnitus was caused by in-service noise exposure. The Veteran submitted a private medical opinion from Dr. L. J. C. dated in May 2019. After performing an audiological evaluation, Dr. C. opined that it was at least as likely as not that the Veteran's bilateral tinnitus was caused by or the result of in-service noise exposure. In support of her opinion, Dr. C. noted that the Veteran served as a cook in a basic training unit during service and he was exposed to noise from shooting rifles, machine guns, bomb simulations, and exhaust kitchen fans without hearing protection. Dr. C. explained that the Veteran was exposed to impulse noise during service. She defined impulse noise as a short duration sound characterized by a shock wave having an instantaneous rise time that occurred as a result of a sudden release of energy such as an explosion or weapons fire. She further noted that, under military conditions and training, impulses usually occurred in a relatively quiet background. In July 2019, the Veteran underwent a VA examination and was diagnosed with tinnitus. During the examination, the Veteran described longstanding tinnitus with an unspecified date of onset. Following the examination, the examiner indicated that, as the Veteran's claims file was unavailable for review at the time of the examination, he could not offer a medical opinion as to the etiology of tinnitus without resorting to speculation. VA obtained an addendum medical opinion later in July 2019. After reviewing the evidence of record, the examiner opined that it was less likely than not that the Veteran's tinnitus was incurred in or caused by the claimed in-service injury, event, or illness. In support of this opinion, the examiner noted that the Veteran's DD 214 stated that his military occupational specialty (MOS) was Food Service Specialist which had a low probability of exposure to hazardous noise levels and there was no evidence of hearing loss in his service treatment records. The examiner explained that, although it was well understood that there were many causes of tinnitus, hearing loss was the most common factor associated with tinnitus and that, in the absence of hearing loss or changes in hearing, the etiology of tinnitus could not be determined to a reasonable degree of certainty based on the evidence. The examiner also explained that this did not rule out tinnitus as a symptom of other conditions associated with military service, to include acquired psychiatric disorders. The examiner found that there was no compelling scientific evidence to support the onset of tinnitus in the absence of hearing loss, however. Thus, the examiner opined that it was less likely than not that the Veteran's tinnitus was caused by in-service noise exposure. Having reviewed the record evidence, the Board finds that service connection for tinnitus is warranted. There is sufficient evidence that the Veteran meets the threshold criterion for service connection of a current disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Specifically, the August 2016 and July 2019 VA examination reports revealed diagnoses for tinnitus. Accordingly, the remaining question is whether the Veteran's tinnitus is related to service. With respect to an in-service injury or disease, the Board finds that, although the service treatment records do not show any complaints, symptoms, signs, or diagnoses of tinnitus, the Veteran has stated consistently that his tinnitus manifested during service. Specifically, he reported that his tinnitus began after he was exposed to noise from gun fire, artillery fire, explosives, and industrial ventilation fans without hearing protection during service. Thus, the Board finds that the second Shedden requirement for service connection has been satisfied. As to whether the Veteran's current bilateral tinnitus is related to service, the Board finds that he has reported credibly that he began to experience ringing in his ears during service and continued to experience such symptoms since that time. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding that ringing in the ears is capable of lay observation). The Board recognizes that the August 2016 and July 2019 VA examiners opined that it was less likely than not that the Veteran's tinnitus was caused by in-service noise exposure. These examiners based their opinions on the absence of evidence of hearing loss in service. As noted above, the absence of evidence does not preclude granting service connection for a claimed disability. See Buchanan, 451 F.3d at 1337, and Barr, 21 Vet. App. at 303. The absence of evidence also is insufficient support for a medical nexus opinion. Id. In addition, neither of these VA examiners addressed the Veteran's credible reports that his tinnitus manifested in service. The Board also finds the May 2019 private medical opinion from Dr. C. speculative as it appears to be based solely upon the Veteran's lay statements. The Board notes in this regard that Dr. C. did not address the absence of complaints or treatment for hearing loss or tinnitus during service. And there is no indication that she reviewed the Veteran's service treatment records prior to offering her medical opinion. The Court has held that the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). A bare conclusion, even one reached by a medical professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). The Court also has held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). Having reviewed the VA medical opinions dated in August 2016 and July 2019 and the May 2019 opinion from Dr. C., the Board finds that none of this evidence is probative on the issue of whether tinnitus is related to active service. Although there are no other medical opinions of record, the Board notes that a probative medical nexus opinion is not necessarily required in this case. Tinnitus is defined as "a noise in the ear, such as ringing, buzzing, roaring, or clicking." See Dorland's Illustrated Medical Dictionary 1714 (28th ed. 1994). Tinnitus also is considered a rare type of disability for which the Veteran is competent to establish the onset, continuity, and presence of a current disability on the basis of his own lay assertions. See Barr, 21 Vet. App. at 303, and Charles, 16 Vet. App. at 374. Thus, the Board finds that the Veteran is competent to state that he began experiencing tinnitus during service and it has continued to the present. In summary, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that service connection for tinnitus is warranted. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends that he incurred bilateral hearing loss during active service and experienced continuous post-service disability. The Board finds that the AOJ committed a pre-decisional duty to assist error by failing to obtain private medical records identified by the Veteran prior to the September 2019 rating decision. To this end, an August 2016 audiology note shows that the Veteran received hearing aids from Henry Ford, private sector amplification, three years prior (or in approximately August 2013). In an August 2015 private medical opinion, a Physician Assistant at the Henry Ford Health System noted that the Veteran had been diagnosed with significant hearing loss and opined that it was at least as likely as not that the Veteran's hearing loss was attributable, at least in part, to regular exposure to noise from firearms during service. With the exception of the August 2015 private medical opinion, no private medical records from the Henry Ford Health System have been associated with the claims file, to include any audiometric testing results. Thus, the Board finds that a remand is required to obtain any outstanding treatment records from the Henry Ford Health System to cure the duty to assist error with regard to obtaining private medical records. The matter is REMANDED for the following action: Ask the Veteran to complete a VA Form 21-4142 for all records which may be available from the Henry Ford Health System, to include all audiometric testing records. A copy of any request(s) sent to the Veteran, and any reply, to include any records obtained in response to this request, should be associated with the claims file. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Justis, Associate 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.