Citation Nr: 21006186 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 15-05 424 DATE: February 3, 2021 ORDER Service connection for tinnitus is granted. REMANDED A claim for service connection for bilateral hearing loss is remanded. FINDING OF FACT The weight of the evidence shows that it is at least as likely as not that the Veteran’s tinnitus had onset in service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served on active duty from September 1970 to January 1972. In an October 2008 rating decision, the Regional Office (RO) denied service connection for his bilateral tinnitus and hearing loss, which became final. In an August 2013 rating decision, the RO reopened and again denied the claims. The Veteran appealed. In January 2021, he testified at a Board’s hearing. Of preliminary note, given the Veteran’s untimely disagreement with the October 2008 denial which thus had become final, the evidence received since that time is new and material and thus the claims are reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. At the hearing, the Veteran stated under oath that he was exposed to loud noise as a military policeman during his tour of duty in the Republic of Vietnam, to include flying on C-130 transports, and began to experience ringing in his ears, which has continued to the present day. This is wholly consistent with the evidence of record viewed as a whole, to include the Veteran’s service records and the circumstances of his service. The cases, like this, where the Veteran reports the onset of tinnitus in service, ultimately turn on the credibility of his statements. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Absent any affirmative evidence to the contrary, the Board finds the Veteran’s testimony as to the onset of his tinnitus in service to be credible and thus service connection for tinnitus is granted. REASONS FOR REMAND In July 2013, the RO obtained a nexus opinion which turned out negative. Of note, however, while acknowledging the Veteran’s service in Vietnam and noting that his hearing impairment meets the VA thresholds for hearing disability, the examiner summarily dismissed the likelihood of the Veteran’s military noise exposure solely based on his military occupational specialty. Based on the January 2021 Veteran’s sworn testimony found credible, but unavailable to the VA examiner, the Board has conceded that the Veteran had been exposed to loud military noises. Further, a comparison of the January 1972 and September 1970 audiometric data does suggest a shift in the Veteran’s hearing acuity, which the examiner has not discussed clearly. Given the Board’s concession that the Veteran had been exposed to loud noise in service, the evidence suggesting a positive shift in his hearing acuity at separation from service, and his current bilateral hearing loss, the Board finds a supplemental nexus opinion is necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the matter is REMANDED for the following action: Obtain a medical opinion as to the etiology of the Veteran’s hearing loss. If an in-person examination is necessary, one should be provided. The examiner is asked to answer the following question: Is it at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral hearing loss began in or was otherwise caused by his active military service, to include as a result of his military noise exposure (as discussed at his January 2020 Board hearing including exposure to rocket attacks and flying on loud planes such as C-130s). In so doing, the examiner should discuss the relevance, if any in the shift in decibel loss between enlistment in September 1970 and his evaluation in January 1972. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alex Bardin, 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.