Citation Nr: 21016224 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 17-36 765 DATE: March 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 The evidence is in relative equipoise as to whether the Veteran’s tinnitus is related to in-service acoustic trauma. 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. §§ 1101, 1110, 1112, 1113, 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 February 1962 to June 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision. The Veteran requested a video-conference hearing before a Veterans Law Judge. See July 2017 VA Form 9, Appeal to the Board of Veterans’ Appeals. The Veteran was informed of the date, time, and location of the video-conference hearing in correspondence dated August 21, 2019. Without explanation, the Veteran did not attend the hearing, nor did he request to reschedule the hearing. Accordingly, the Veteran’s hearing request is deemed withdrawn. 38 C.F.R. § 20.704(e). 1. Entitlement to service connection for tinnitus is granted. The Veteran maintains that he suffers from tinnitus, which is a direct result of in-service noise exposure. Specifically, the Veteran reports that he has recurrent tinnitus and that his auditory symptoms started as a result of aircraft engine noise during his active service while working as an Aviation Electrician Mate. See July 2017 VA Form 9. The Veteran further provides that his tinnitus began in 1963, during his active service. See November 2013 Hearing Loss and Tinnitus Disability Benefits Questionnaire. For the reasons discussed below, the Board finds that service connection for tinnitus is warranted. Service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical “nexus” requirement). See 38 C.F.R. § 3.303(a); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)). For the chronic diseases listed in 38 C.F.R. § 3.309(a), including tinnitus as an organic disease of the nervous system, if the chronic disease manifested in service, then subsequent manifestations of the same chronic disease at any date after service, no matter how remote, will be entitled to service connection without having to show a causal relationship or medical nexus, unless the later manifestations are clearly due to causes unrelated to service (“intercurrent cause”). See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that § 3.303(b) only applies to the chronic diseases listed in § 3.309(a). If the evidence is not sufficient to establish chronicity of the disease at the time of service, then a continuity of symptoms after service must be shown to grant service connection under this provision. See 38 C.F.R. § 3.303(b); Walker, 708 F.3d at 1338-39. In addition, where a veteran served continuously for 90 days or more during a period of war, or after December 31, 1946, there is a presumption of service connection for organic diseases of the nervous system, including tinnitus, if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). Tinnitus is defined as “a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type.” Dorland's Illustrated Medical Dictionary, 1956 (31st ed. 2007). Because tinnitus is “subjective,” its existence is generally determined by whether the veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. Charles v. Principi, 16 Vet. App. 370 (2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran maintains that his current tinnitus has been ongoing since his exposure to aircraft engine noise while working as an Aviation Electrician Mate during his active service. The Veteran is competent under the law to describe what he experienced while in military service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran’s Certificate of Release or Discharge from Active Duty (DD Form 214) and military personnel records demonstrate that his military occupational specialty was Aviation Electrician Mate, which is consistent with his reported exposure to acoustic trauma. The Board finds the Veteran’s account of experiencing in-service acoustic trauma and auditory symptomatology to be credible and consistent with the circumstances of his service. See 38 U.S.C. § 1154; Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board notes that the Veteran has also reported, as he is competent to do, a continuity of symptomatology of tinnitus, since his active service. See July 2017 VA Form 9. The Board finds the Veteran credible in this regard. This report of a continuity of symptomatology suggests a link between the Veteran’s current tinnitus symptomatology and service. See Duenas v. Principi, 18 Vet. App. 512 (2004). As noted above, the Veteran was afforded an November 2013 Hearing Loss and Tinnitus Disability Benefits Questionnaire. The examination report indicates that the Veteran reports recurrent tinnitus and that his tinnitus began in 1963, which is during his active service and that he sustained in-service acoustic trauma from firearms and aircraft engines. The Board acknowledges the negative evidence of record in the form of the corresponding November 2013 medical opinion indicating that the Veteran reports experiencing tinnitus but disassociating it from his in-service noise exposure. The medical opinion provides that the Veteran’s tinnitus is related to his current bilateral hearing loss, but did not provide any supporting rationale. The Board declines to accept the November 2013 medical opinion, however, as it fails to account in any meaningful way for the Veteran’s competent and credible assertions of onset and continuity of symptomatology, and therefore lacks probative value. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992) (The Board is free to assess medical evidence and is not obligated to accept a physician's opinion.). Thus, the medical opinion is an inadequate basis upon which to base a denial of entitlement to service connection. Accordingly, the Board finds that the evidence for and against the Veteran’s claim for service connection for tinnitus is at least in equipoise. When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Therefore, the benefit of the doubt must be resolved in favor of the Veteran and entitlement to service connection for tinnitus is granted. REASONS FOR REMAND Unfortunately, the Veteran’s claim for service connection for bilateral hearing loss must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim, so he is afforded every possible consideration. 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran’s claims folder contains a November 2013 Hearing Loss and Tinnitus Disability Benefits Questionnaire. However, the Board finds that a new examination and opinion should be provided as the corresponding medical opinion is inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Board finds that the corresponding November 2013 medical opinion is inadequate because it fails to provide any meaningful discussion of the in-service acoustic trauma sustained by the Veteran. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”); see also Wilson, 2 Vet. App. at 618. In finding that the Veteran’s current bilateral hearing loss is less likely than not related to his active service, the November 2013 medical opinion states that his last hearing examination in August 1999 showed minimal hearing loss in high frequencies and that he worked as an electrician in noisy environments throughout his civilian career. However, the Veteran later explained that during his post-service career as an electrician he was required to wear hearing protection. See VA Form 9, dated July 11, 2017. Further, no medical opinion was provided as to whether the Veteran’s current bilateral hearing loss was caused by his in-service earaches documented throughout service. Therefore, the Board finds another examination is necessary so that an appropriate clinician may reassess the Veteran’s bilateral hearing loss, adequately addressing the etiology of his bilateral hearing loss and taking into consideration the latest research concerning delayed onset hearing loss from Dr. Sharon G. Kujawa. The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from March 2017 to the present. 2. After the above development is completed, schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of his bilateral hearing loss. The clinician must review the Veteran’s claims folder. The clinician should render an opinion as to the following: (a.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s current bilateral hearing loss was caused by his in-service acoustic trauma, including from his duties as an Aviation Electrician Mate, and/or his in-service earaches. In providing this opinion, the examiner must consider the following: • The in-service hearing test dated in January 1962 at entrance onto active duty (15/15 bilaterally, whispered voice), and the in-service audiograms dated in August 1963, March 1964 and May 1966 (separation examination). The in-service audiograms must be converted from ASA to ISO-ANSI units, and the examiner should explain the significance of any threshold shift(s) demonstrated on the audiograms; • The in-service treatment for a swollen left ear canal with complaints of diminished hearing in August 1962, left earaches in July 1963 and July 1965, and a right earache in July 1964; • The Veteran’s statement that during service while he performed maintenance on extremely loud aircraft, he was only a few feet away from them when they were running on “full max” and there were many times that he could not hear as a result of this noise exposure; • The Veteran’s statement that during his post-service career as an electrician, he was required to wear hearing protection; • The information cited from Occupational Safety and Health Administration (OSHA) in the February 2021 Written Brief Presentation; and • The line of research concerning delayed onset hearing loss conducted by Dr. Sharon G. Kujawa, including the below: “Acceleration of Age-Related Hearing loss by Early Noise Exposure: Evidence of a Misspent Youth” by S. Kujawa, M.D., and M. C. Liberman (2006). J Neurosci. 2006 Feb 15; 26(7): 2115-2123. Kujawa SG, Liberman MC (2009) Adding insult to injury: cochlear nerve degeneration after “temporary” noise-induced hearing loss. J Neurosci. 2009 Nov 11;29(45):14077-85. Lin HW, Furman AC, Kujawa SG and Liberman MC (2011) Primary neural degeneration in the guinea pig cochlea after reversible noise-induced threshold shift. JARO 12:605-616. Furman AC, Kujawa SG, Libermann MC (2013) Noise-induced cochlear neuropathy is selective for fibers with low spontaneous rates. J. Neurophysiol.110, 577-586. (Continued on the next page)   All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean Mussey, 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.