Citation Nr: 21007887 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 17-50 630 DATE: February 11, 2021 ORDER Service connection for tinnitus is granted. REMANDED The issue of service connection for bilateral hearing loss is remanded. FINDING OF FACT The competent and probative evidence is at least in equipoise as to whether current tinnitus had its onset in or is otherwise related to the Veteran’s period of active service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1971 to March 1972. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran filed an initial claim for the issues on appeal in May 2016 and identified Harvard Vanguard as a treatment provider. In August 2016, the RO issued a rating decision denying the issues on appeal without making any reasonable efforts to obtain the Harvard Vanguard private treatment records. In April 2017, the Veteran filed a second claim identifying Harvard Vanguard as a treatment provider, along with a few other providers. The RO obtained the Harvard Vanguard records in June 2017 and issued a rating decision in August 2017 denying the claims based on a lack of new and material evidence. As the RO failed to obtain the Harvard Vanguard records prior to issuing its denial in August 2016, that rating decision remained pending. See 38 C.F.R. § 3.159. In January 2020, the Veteran testified at a Board videoconference hearing. A transcript of the hearing has been associated with the virtual file. Service Connection Service connection for tinnitus. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. As the disability in question, tinnitus, is a chronic disease under 38 C.F.R. § 3.309(a), an award of service connection may be established based on continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015) (classifying tinnitus as organic diseases of the nervous system under 38 C.F.R. § 3.309(a)). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). After review of the record, the Board finds that the criteria for service connection for tinnitus have been met. The record contains a competent diagnosis of tinnitus. See August 2016, VA examination. The Board, accordingly, finds competent evidence of a current disorder. Military personnel records indicate the Veteran was a pavement management specialist. His daily duties included maintaining and repairing runways, roads, and related drainage systems; cutting and hauling dead trees from the flight line and housing areas; operating grass cutting equipment; and pruning trees and shrubs. See July 2016, DD-214; July 2016, Military personnel records (emphasis added). In August 2016, VA examiner noted the Veteran’s statements that tinnitus has been present for a long time. The VA examiner found the Veteran had brief exposure to landscaping or construction noise and opined it was less likely than not that tinnitus had its onset in or is otherwise related to active service because the Veteran left the military with normal hearing; rather, tinnitus could be related to normal aging. The Board accords little probative weight to the VA examiner’s negative opinion because the examiner failed to address the Veteran’s lay statements of the onset and continuing symptoms of tinnitus, as he did not have the opportunity to discuss the Veteran’s January 2020 testimony. Additionally, the VA examiner inaccurately found the Veteran was only briefly exposed to landscaping and construction noise because he did not consider the Veteran’s daily duties required him to work on the flight line. See August 2016, VA examination; see also Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (a medical opinion is inadequate if it does not take into account the Veteran’s reports of symptoms and history); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinions based on an incomplete or inaccurate factual premise are not probative). In January 2020, the Veteran testified that he first noticed tinnitus during service, and it has been continuous since discharge from service. The Veteran stated that his daily duties required him to work on the flight line which exposed him to loud noise. Specifically, flight line noise included air compressors and jackhammers from patching holes; generators running 24 hours per day; B-52, big bombers, and C-135 aircrafts landing and taking off—about 17 or 18 aircrafts per day; and trucks coming and going. Approximately seven years after discharge from service, the Veteran began working at the Boston Fire Department. January 2020, Hearing transcript. In light of the foregoing, the Board finds that the competent and probative evidence is at least in equipoise as to whether current tinnitus had its onset in or is otherwise related to the Veteran’s period of active service. See 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). The Board finds the Veteran’s lay statements regarding the onset and continuous symptoms of tinnitus since discharge from service to be competent and credible and accords high probative weight to same. Resolving all reasonable doubt in the Veteran’s favor, the Board finds service connection for tinnitus is warranted. REASONS FOR REMAND The issue of service connection for bilateral hearing loss. The Veteran contends that he first noticed hearing loss during service and his symptoms have been continuous since discharge from service. The Veteran further stated that his military occupational specialty (MOS) required him to work on the flight line which regularly exposed him to loud noises. Specifically, flight line noises included air compressors and jackhammers from patching and repairing holes (on the runway); generators running 24 hours per day; B-52, big bombers, and C-135 aircrafts landing and taking off—about 17 or 18 aircrafts per day; and trucks coming and going. In 1979, seven years after discharge from service, the Veteran stated he began working at the Boston Fire Department. See January 2020, Hearing transcript. Military personnel records indicate the Veteran’s MOS was a pavement management specialist. His daily duties included maintaining and repairing runways, roads, and related drainage systems; cutting and hauling dead trees from the flight line and housing areas; operating grass cutting equipment; and pruning trees and shrubs. See July 2016, DD-214; July 2016, Military personnel records (emphasis added). The Board finds the August 2016 VA examination for hearing loss inadequate because the examiner failed to address the Veteran’s lay statements of the onset and continuing symptoms of hearing loss, as he did not have the opportunity to discuss the Veteran’s January 2020 testimony. Further, the examiner inaccurately found that the Veteran had brief exposure to landscaping and construction noise when military personnel records indicate the Veteran’s MOS required him to work daily on the fight line. See August 2016, VA examination; see also Dalton, 21 Vet. App. 23 (a medical opinion is inadequate if it does not take into account the Veteran’s reports of symptoms and history); Reonal, 5 Vet. App. at 460-61 (medical opinions based on an incomplete or inaccurate factual premise are not probative). The Board, accordingly, remands this issue for a new examination. The Board notes the claims file only has VA treatment records to August 2016. On remand, any previously unobtained records should be procured and associated with the Veteran’s claims file. The matter is REMANDED for the following action: 1. Obtain all outstanding VA evaluation and/or treatment records of the Veteran since August 2016, then associate them with the claims file. 2. After competing directive #1, schedule the Veteran for a VA audiological examination to determine the nature and etiology of bilateral hearing loss, if any. The VA examiner should render an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current hearing loss manifested during or is otherwise related to the Veteran’s period of active service. The examiner should consider and address the Veteran’s lay statements that he first noticed hearing loss during service which continued after discharge. See January 2020, Hearing transcript. The Veteran is competent to report his symptoms, experiences, and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, he or she must provide a reason for doing so. All indicated tests and studies, including a puretone audiometry test and a speech recognition test (Maryland CNC test), shall be conducted, and the results of such testing shall be included in the examination report. The examiner must also fully describe the functional effects of the Veteran’s hearing disability. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Straughn, 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.