Citation Nr: 21022647 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 14-08 452 DATE: April 16, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his bilateral hearing loss is at least as likely as not related to acoustic trauma experienced during his active service. 2. Resolving reasonable doubt in the Veteran’s favor, his tinnitus is at least as likely as not related to acoustic trauma experienced during his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2019).  2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2019).  REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1960 to June 1963. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in May 2020. A transcript of the hearing is associated with the electronic claims file. The Board issued a prior remand on these claims in October 2020. Service Connection Generally, to establish service connection a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d).  VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. The Veteran filed an application for service connection for bilateral hearing loss and tinnitus in October 2011. The Veteran was given a VA examination for his bilateral hearing loss and tinnitus in December 2011. At the time the Veteran’s c-file was not available for review, thus the examiner was not able to provide an opinion regarding the etiology of the Veteran’s bilateral hearing loss. Nevertheless, the examiner did opine that the Veteran’s tinnitus was an associated symptom of his hearing loss, and that it was less likely than not related to the Veteran’s military noise exposure because he denied tinnitus in 2010. In January 2012 a second examiner reviewed the Veteran’s service and private treatment records and opined that the Veteran’s hearing loss and tinnitus were not caused by or the result of military noise exposure, noting as rationale “Although [the Veteran] served as an infantryman, records indicated normal hearing on enlistment and separation from the Army. So there is no nexus indicating noise exposure and hearing loss or tinnitus.” He noted that the Veteran passed a whisper test at enlistment in June 1960 and that his separation hearing exam in April 1963 indicated normal thresholds from 500-4kHz bilaterally. The examiner went on to note the Veteran’s history of medical problems with his ears and listed the Veteran’s various treatments but found that the Veteran’s medical conditions were beyond his scope of practice and opined that an ENT should review this issue. In February 2012 the Veteran’s claim file was reviewed by an otolaryngologist. He provided a lengthy explanation of the Veteran’s past ear treatment history and surgeries, then opined that the ear problems the Veteran experienced in the Army were not responsible for his current bilateral hearing loss and tinnitus. Specifically, the examiner wrote “It is this examiner’s opinion that the ear problem, that is, hearing loss and tinnitus, specifically the marked profound sensorineural hearing loss in the right ear and the hearing loss in the left ear and the tinnitus which is again in the examiner’s opinion secondary to the hearing loss, this Veteran’s hearing problems experienced in the Army are not responsible for his current ear problems in the right ear while there was the documented externa otitis and no evidence of hearing loss or complaints of some or tinnitus in the military, and that it was several years later when he was seen for a diagnosis of otosclerosis and underwent a right stapendectomy... and subsequent revision surgeries in the right ear and now has profound hearing loss in the right ear. It is less than likely that the Veteran’s current ear problems in the right ear incurred in the military or was caused by the aforementioned externa otitis infections documented in the claims file.” In April 2012, the Veteran provided an opinion from his private treating ENT dated March 26, 2012. The Veteran’s private ENT wrote “Pt has noise induced hearing loss which is accompanying tinnitus.” At his May 2020 hearing, the undersigned VLJ explained to the Veteran that the problem with this opinion was that the physician did not provide any rationale for his conclusion. The undersigned specifically encouraged the Veteran to obtain another opinion that included a rationale for the opinions and conclusions reached and provided the Veteran with a 90-day extension of time to do so. However, no additional opinion was submitted. Nevertheless, the Board remanded the claim in October 2020 in light of the additional relevant evidence added to the Veteran’s electronic file and to provide the Veteran with another addendum opinion regarding the etiology of his bilateral hearing loss and tinnitus from an otolaryngologist. The Veteran was given another VA examination for his hearing loss in January 2021. The Board notes that this examination was provided by an audiologist, rather than an otolaryngologist. The audiologist acknowledged that the October 2020 Board remand requested an addendum opinion from an otolaryngologist but that “VA has reportedly given their approval to have this case assigned to an audiologist.” The audiologist went on to say “any opinion regarding causation of the conductive component of hearing loss due to otitis externa during military service provided by this audiologist examiner would be purely speculative, as a medical specialist in ear disease has already rendered a negative opinion regarding causation of otosclerosis from otitis externa, and ear disease is beyond my scope of practice.” Nevertheless, the audiologist rendered an opinion that the Veteran’s bilateral hearing loss and tinnitus were both at least as likely as not due to acoustic trauma experienced during his active service. In formulating this opinion, the audiologist provided a thorough explanation of the Veteran’s lay statements, his MOS as an armor crewman, and his service treatment records, including the missing data and use of a whisper test. Specifically, the audiologist wrote “because the evidence of record cannot refute a threshold shift occurred during service due to not having frequency- or ear-specific hearing thresholds properly documented, because the Veteran’s MOS and military badges indicate a high probability for hazardous noise exposure, and because the lay evidence indicates that he experienced periods of hearing loss following exposure to hazardous military noise exposure, consistent with acoustic trauma, the sensorineural component of the Veteran’s hearing loss is deemed to meet a 50% threshold of probability of having been caused by acoustic trauma, and the Veteran’s hearing loss is at least as likely as not (50% probability or greater) caused by or the result of an event in military service.” The audiologist gave the same reasoning when opining that the Veteran’s tinnitus was at least as likely as not related to his active service as well. Despite this opinion, the RO deferred a rating decision and requested another opinion from an otolaryngologist as previously instructed in the October 2020 remand. In January 2021 two additional addendum opinions were added to the Veteran’s electronic file, both completed by an otolaryngologist. He opined that it was less likely than not that the Veteran’s hearing loss was related to his active service offering as rationale “The Veteran’s right sided hearing loss was first diagnosed in 1984 as otosclerosis. This is an inherited, congenital, condition not caused by noise exposure or otitis externa. The Veteran had normal hearing at separation. Significant left sided hearing loss was not documented until more than 45 years following separation and is less likely than not related to military noise exposure.” The otolaryngologist also opined that the Veteran’s tinnitus was less likely than not related to his active service writing “There is no documentation of tinnitus until 2012, 49 years following separation, and was denied by the Veteran in 2010. There is no relationship of tinnitus with otitis externa.” The Board finds these opinions to be inadequate as they did not consider the Veteran’s lay statements, the absence of data on his service treatment hearing records, or the opinion provided by the Veteran’s private physicians as instructed in the October 2020 remand instructions. Instead, the Board assigns significant probative weight to the January 2021 opinions provided by the VA audiologist as all of the evidence of file was included and discussed in the rendering of these opinions. Accordingly, resolving reasonable doubt in favor of the Veteran, entitlement to service connection for bilateral hearing loss and tinnitus is granted. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Ruiz, 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.