Citation Nr: 21020711 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 17-01 109 DATE: April 8, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for hearing loss is remanded. FINDING OF FACT The Veteran has credibly and competently asserted that his tinnitus began in service and has continued since. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. § 1110 ; 38 C.F.R. §§ 3.102, 3.303, 3.04, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the United States Air Force from February 1984 to February 1988. This matter comes to the Board of Veterans’ Appeals (Board) on appeal of an August 2015 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). In February 2021, the Veteran presented testimony in a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims folder. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) 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 in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases, including tinnitus, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service (typically one year); or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 1. Entitlement to service connection for tinnitus The Veteran contends he is entitled to service connection for tinnitus due to his military service. Specifically, he asserts he experienced traumatic noise exposure as an engine mechanic. He reports working in close proximity to running jet engines and encountering weapons fire. The Veteran contends he began to experience high-pitch ringing in the ears while on active duty, which became noticeable once he separated from service and has continued since. The question for the Board is whether the Veteran’s tinnitus is related to his military service, either directly or by presumption. The Board finds the evidence of record is sufficient to grant the claim of tinnitus. The Board finds the Veteran has a current tinnitus disability and is presumed to have experienced acoustic trauma due to his military occupational specialty (MOS). Tinnitus is readily observable by laypersons, and medical expertise is not required to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). It is considered an organic disease of the nervous system and is subject to service connection if it manifests to a compensable degree within one year of separation. See Fountain v. McDonald, 27 Vet. App. 258 (2015). The Veteran has consistently and credibly stated his tinnitus disability began in-service and has continued ever since. Unlike other disabilities, which are medically complex, the Veteran is competent to speak to when he first experienced symptoms of tinnitus, and whether he believes his current tinnitus is related to his service. The Board finds his statements credible, given that they are consistent throughout the record. Additionally, no medical reason has been offered to reject the Veteran’s credible lay reports concerning continuity of symptomatology. The Board notes the negative nexus opinion provided by the July 2015 VA examiner but finds the examiner’s rationale to be inadequate. The examiner did not adequately consider the Veteran’s competent and credible lay statements supporting that his tinnitus began in service and has continued ever since. The examiner reasoned the Veteran’s tinnitus was not related to service because his hearing did not worsen during active duty. This is an insufficient basis to reject the Veteran’s contentions and accordingly, the opinion is given no probative value. As such, the Board finds service connection for tinnitus is warranted on a presumptive basis. 38 U.S.C. § 1112; 38 C.F.R. § 3.303, 3.307. REASONS FOR REMAND 1. Entitlement to service connection for hearing loss is remanded. The Veteran contends he is entitled to service connection for hearing loss resulting from his military service. As stated above, he contends he experienced acoustic trauma as a result of his MOS as a jet engine mechanic. He contends the 2015 examination was inadequate and believes his hearing has worsened such that he has a disability for VA compensation purposes. Alternatively, the Veteran contends his exposure to JP-8 jet fuel may have caused auditory processing dysfunctions. He asserts he is unable to understand spoken words without watching the speaker’s mouth, making communicating more difficult given the necessity of facemasks during the ongoing COVID-19 health emergency. The Veteran reports having difficulty discerning sound location and direction and often asks speakers to repeat themselves. See Statement, 2/9/16. He has submitted literature reflecting the existence of a separate condition of hearing dyslexia and believes his symptoms warrant an examination. See Correspondence, 2/9/16; Hearing Transcript, 2/5/21. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability for which service connection may be granted when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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. The results of the Veteran’s July 2015 audiometric testing did not produce results sufficient to establish a hearing loss disability. However, the Board finds the medical opinion inadequate and must remand to provide the Veteran with a new examination. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The examiner concluded the Veteran’s hearing loss was not related to service based on a lack of documented hearing loss between 1983 and 1990. An opinion based solely on the absence of documented symptoms is inadequate if it does not consider the Veteran’s report of history and symptoms. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006). As the examination is inadequate, a new examination is required to assess the nature and etiology of the Veteran’s hearing loss and fully address his contentions. Accordingly, the matters are REMANDED for the following action: 1. Obtain updated or outstanding pertinent VA treatment records and associate them with the claims file. 2. Schedule the Veteran for a VA examination by an examiner with the appropriate expertise and who has not previously examined the Veteran, to determine the nature and etiology of his hearing loss. Following review of the claims file, including this Remand, the examiner should opine as to whether: (a.) What are the hearing related diagnoses estbalihsed through testing for this Veteran – e.g., is hearing loss present, and is there a hearing dyslexia and/or other audio processing disorder to account for his stated symptoms of not being able to discern words without reading lips. (b.) Is it at least as likely as not (50 percent or greater) that the Veteran’s current hearing loss is related to his military service, including noise exposure as a jet engine mechanic? Note that service connection for hearing loss is not precluded where hearing was within normal limits at separation. The lack of diagnosed hearing loss in service cannot serve as the sole basis for a finding against a current relationship to service. (c.) If there is a hearing dyslexia and/or other audio processing disorder diagnosed, is it at least as likely as not (50 percent or greater) related to his military service, including noise exposure and jet fuel exposure. The examiner is asked to provide the underlying reasons for all opinions expressed, and is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.N. Chapman, 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.