Citation Nr: 21009945 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 18-55 117 DATE: February 23, 2021 ORDER Service connection for tinnitus is granted. REMANDED The issue of service connection for bilateral hearing loss is remanded. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran’s tinnitus began during active service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 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 June 1982 to October 1982 and August 1983 to December 1985. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2018 rating decision. In June 2020, the Veteran testified at a Board videoconference hearing; a transcript of the hearing is associated with the claims file. 1. Service connection for tinnitus The Veteran contends that his current tinnitus is related to military noise exposure associated with his military occupational specialty (MOS) as an indirect fire infantryman. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish direct service connection, there must be the existence of a present disability; in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases, including other organic diseases of the nervous system (such as tinnitus), may be established on a presumptive basis by showing that such a disease manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). The Veteran’s report of experiencing hazardous noise during military service is supported by his service personnel records and his service treatment records. In June 1984, he underwent audiometric testing following exposure in noise duties approximately seven hours earlier to establish a reference audiogram. He reported using triple flange earplugs that had previously been issued. At that time, his hearing was normal bilaterally for VA purposes and was generally consistent with audiometric testing data from enlistment examination in November 1982. See 38 C.F.R. § 3.385 (defining when impaired hearing will be considered to be a disability for VA purposes). In a November 1985 separation report of medical history, he denied any perceived hearing loss or ear trouble and listed his usual occupation as mortar gunner/driver. On separation examination the same day, audiometric testing, which was performed twice, demonstrated bilateral hearing loss for VA purposes. A summary of defects and diagnoses noted mild to moderate hearing loss. Prior to claiming service connection for tinnitus in January 2018, the Veteran had claimed service connection for bilateral hearing loss. In July 2017, he was afforded a VA audiological examination. He described his military noise exposure as a mortar gunner and occupational noise exposure as a welder and ironworker for 30 years. He reported experiencing constant bilateral tinnitus that began about one year earlier (2016). Among post-service VA treatment records dating since July 2001, the Veteran first endorsed experiencing tinnitus during a September 2017 primary care visit. In connection with his January 2018 claim of service connection for tinnitus, he was afforded a VA audiological examination in February 2018. He reported that his tinnitus began “a few years ago.” The examiner opined it was less likely as not that the current tinnitus was caused by service because the onset of perceived tinnitus “a few years ago” would indicate that his tinnitus was more closely related to his occupational noise exposure for 30 years than to his military noise exposure. During the June 2020 hearing, the Veteran testified that he had had tinnitus for “so long, it’s like I almost can’t even remember” when he first noticed it. He explained that he did not know what tinnitus was until his mother, who has tinnitus, told him about it. He estimated that his tinnitus began during his military service or right after separation from service. Considering the medical and lay evidence of record, the evidence is at least in equipoise as to whether the Veteran’s current tinnitus had its onset during military service. Although he reported an onset of tinnitus around 2015 or 2016 during VA examinations in July 2017 and February 2018, his service records document his exposure to hazardous noise and an upward shift in hearing acuity (representing a decrease in hearing) between enlistment, reference, and separation examinations. In addition, his testimony provides a reasonable explanation as to why he had previously not endorsed experiencing tinnitus. As the reasonable doubt created by the relative equipoise in the evidence must be resolved in favor of the Veteran, service connection for tinnitus is warranted. 38 U.S.C. § 5017; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. The issue of service connection for bilateral hearing loss is remanded. As detailed in the decision above regarding service connection for tinnitus, the Veteran’s service personnel records document his military occupational specialty (MOS) as indirect fire infantryman and his service treatment records further verify his exposure to hazardous noise during military service. The issue of whether he was exposed to excessive noise during military service is not in dispute. In addition, although he denied any perceived hearing loss in a November 1985 separation report of medical history, audiometric testing, which was performed twice, on the same day demonstrated a current bilateral hearing loss for VA purposes as defined by 38 C.F.R. § 3.385 with significant upward threshold shifts most notably at 500 and 1000 Hertz bilaterally as compared to audiometric testing at enlistment examination in November 1982 and at reference testing in June 1984. Audiometric testing performed during VA examinations in July 2017 and February 2018 demonstrated that the Veteran’s current hearing impairment did not meet the regulatory criteria of 38 C.F.R. § 3.385 for a hearing loss disability in either ear. Both examining audiologists, however, provided favorable medical opinions, concluding it was at least as likely as not that the Veteran’s bilateral hearing loss was incurred in or caused by his military noise exposure. The examiners observed that the Veteran’s MOS was highly probable for noise exposure and that the significant shift in hearing acuity, bilaterally, between enlistment and separation examinations was sufficient to establish a nexus between current hearing loss and his military service. The AOJ should arrange for the Veteran to undergo an additional VA examination to determine whether he has a current bilateral hearing loss disability as defined by 38 C.F.R. § 3.385 and to obtain a supplemental medical opinion. The matter is REMANDED for the following action: 1. Obtain any ongoing VA treatment records dating since May 2019 and any private treatment records the Veteran identifies that may be pertinent to his claim for service connection for bilateral hearing loss. 2. Schedule the Veteran for a VA examination with an audiologist to determine whether he has a current bilateral hearing loss disability as defined by 38 C.F.R. § 3.385. Provide the Veteran’s electronic claims file and a complete copy of this remand to the designated audiologist for review. Following a review of the claims file and examination, the audiologist should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any current right or left hearing loss disability had its onset in service, manifested to a compensable degree within one year of separation from service, or is otherwise related to the Veteran’s military noise exposure associated with his duties as an indirect fire infantryman. A medical rationale must be provided for all opinions expressed. If the Veteran does NOT have a current hearing loss disability as defined by 38 C.F.R. § 3.385, the audiologist should address the audiometric tests performed at separation examination in November 1985, which each demonstrated a bilateral hearing loss for VA purposes, in comparison to audiometric testing data from post-service VA examinations, including in July 2017 and February 2018. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura Kirscher Strauss 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.