Citation Nr: 21014495 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 19-04 943 DATE: March 12, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMANDED The issue of entitlement to service connection for a lumbar spine disability is remanded. FINDINGS OF FACT 1. The evidence is at least in equipoise with regard to showing that the Veteran’s bilateral hearing loss disability is etiologically related to in-service noise exposure. 2. The evidence is at least in equipoise with regard to showing that the Veteran’s tinnitus disability is etiologically related to in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1111, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1111, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from October 1962 to April 1963. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in January 2021; a transcript of the hearing is of record. Service Connection 1. Entitlement to service connection for bilateral hearing loss is granted. 2. Entitlement to service connection for tinnitus is granted. The Veteran contends that he suffers from bilateral hearing loss and tinnitus due to noise exposure during his military service. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic diseases, including sensorineural hearing loss and tinnitus (as organic diseases of the nervous system), may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101,1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Hearing loss disability is defined by regulation. For the purpose of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. It is VA’s defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board concludes that the Veteran currently has bilateral hearing loss and tinnitus disabilities that are etiologically linked to acoustic trauma during his service. 38 U.S.C. §§ 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). To reach this conclusion, the Board finds that the evidence is at least in equipoise with regard to showing that the Veteran’s bilateral hearing loss and tinnitus are associated with his service. First, the Board finds that the Veteran has current disabilities corresponding to the claimed hearing loss and tinnitus. The Veteran has bilateral hearing loss for VA purposes, including as established by a VA examination report dated in February 2018. As to tinnitus, the February 2018 VA examiner accepted and documented the Veteran’s credible testimony describing his experience of tinnitus with associated functional impairment, and the Board accordingly finds that the Veteran has the disability of tinnitus. Next, in-service acoustic trauma is acknowledged based on the Veteran’s January 2021 hearing testimony regarding his service, and the February 2018 VA examiner’s statement that the Veteran’s duties as “a Wheeled Vehicle Mechanic [are] considered highly probable for hazardous noise exposure.” The Veteran’s testimony regarding his role in service and the VA examiner’s statement are consistent with documentation in his service records including his DD Form 214. The Board therefore finds that the Veteran has established the occurrence of such exposure. Finally, although the February 2018 VA examiner opined that the Veteran’s hearing loss and tinnitus are unlikely etiologically linked to his service, the opinion relied upon in-service audio examinations that included one that includes nothing more than whisper-voice testing (with no other manner of audiometry data) to assess the Veteran’s hearing acuity at the time of his March 1963 separation examination. This limitation in the data available from the cited service treatment records limits the extent of probative value in the conclusions the February 2018 VA examiner has drawn in reliance upon those service treatment records. A decision by the United States Court of Appeals for Veterans Claims has held that when data in an examination report does not include hearing threshold measurements at 3000 Hz, it is possible that the missing frequency’s hearing threshold could be at a level to establish a hearing loss disability for purposes of 38 C.F.R. § 3.385, and therefore cannot be used to establish the absence of a disability. See Highfill v. Wilkie, No. 17-3775, 2019 U.S. App. Vet. Claims LEXIS 273, at 6 (Vet. App. Feb. 25, 2019). The February 2018 VA medical opinion relies upon in-service hearing acuity testing significantly featuring whisper voice testing lacking the type and extent of detail necessary to adequately inform such an opinion. The Board finds the VA opinion lacks probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). In April 2020, in support of his claim, the Veteran submitted a private audiologist’s medical opinion that asserts: “[The Veteran]’s hearing loss and tinnitus are likely due to his military service, particularly his constant exposure to engine noise.” The opinion cites that the Veteran “was often exposed to engine noise from various large vehicles,” during service in the 1960s, and the opinion notes that there “is no family history of hearing loss.” The Board finds that there are no adequate probative medical opinions weighing against finding an etiological link between the Veteran’s in-service acoustic trauma and his current hearing loss and tinnitus disabilities. The Board finds that there is some reasonably supportive and probative medical evidence supporting such a link, featuring the private audiologist’s medical opinion submitted in April 2020. Therefore, the Board concludes that service connection for bilateral hearing loss and for tinnitus can be granted by affording the Veteran the benefit of the doubt in consideration of all of the evidence. Upon review of the record, the Board finds the evidence reasonably supports finding that the Veteran’s current hearing loss and tinnitus disabilities are etiologically related to his military service. Accordingly, resolving any reasonable doubt in favor of the Veteran, the Board finds that service connection for hearing loss and for tinnitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. The issue of entitlement to service connection for a lumbar spine disability is remanded. During the Veteran’s January 2021 Board hearing, discussion of the potential importance of records of the Veteran’s private treatment history for his back disability led to the Veteran identifying a number of private medical providers who have treated him for his back disability over time. Amidst discussion regarding the availability of various sources of pertinent records, the Veteran’s representative stated that “those records might be with that new doctor or there might be notations.” The record was held open for 30 days to afford the Veteran an opportunity to obtain and submit the records himself. When the discussion turned to the question of the Veteran’s preference for how the Board should proceed if the Veteran were unable to submit the referenced medical records, the Veteran’s representative stated: “I would suggest a remand” in which the Board directs VA to take appropriate action to assist the Veteran with obtaining the pertinent records. In February 2021, the Veteran submitted a January 2021 statement from a treating medical provider that described the current state of his back disability and his treatment. However, the Veteran has not submitted the medical records contemplated by the discussion during the January 2021 Board hearing. Neither the Veteran nor his representative have indicated that the contemplated records from the identified providers / sources have been determined to be unobtainable, nor have they otherwise withdrawn the standing request that the Board remand this case so that VA may assist the Veteran in efforts to obtain the pertinent records. Thus, remand is warranted for an attempt to obtain these identified records. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Ask the Veteran, in conjunction with his representative, to provide the MRI reports from the late 1990s he mentioned during his hearing and to complete the necessary authorization forms in order to obtain relevant private medical providers as to any treatment for a back / lumbar spine disability, to include treatment records from: (a.) D. J. Balar, D.O., with Princeton Brain, Spine, and Sports Medicine, from approximately 2015 to the present; and (b.) Dr. Newman, a pain management doctor in perhaps Brick, NJ. Make two requests for the authorized records from any identified medical provider, unless it is clear after the first request that a second request would be futile. 3. After the action in paragraphs 1 and 2 is complete, obtain an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) and a medical opinion from an appropriate clinician regarding the nature and etiology of the Veteran’s low back disability. The examiner should review the claims file. The examiner is requested to answer the following: (a.) Identify all back disabilities present. Please be aware that his private provider has stated that he has imaging studies showing hypertrophic spurring and narrowing of disc spaces at all level with facet hypertrophy at L5-S1. (b.) As to each back disability identified, is it at least as likely as not (50 percent probability or greater) that the Veteran suffers from a low back disability that is related to / proximately due to his active duty military service? The clinician must address the Veteran’s statements that he has had low back pain continuously since service when he had to take engines out of deuce and a half vehicles and that he was not treated in service. A full rationale is to be provided for all stated medical opinions. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The clinician is advised that the Board has not as yet made any credibility determinations with respect to the Veteran’s reports of pertinent history. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Barone, 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.