Citation Nr: 21023896 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 15-11 856 DATE: April 21, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for right ear hearing loss is remanded. Entitlement to service connection for left ear hearing loss is remanded. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, the Veteran’s tinnitus first manifested in service and has been continuous since. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from February 2002 to June 2002, and from January 2003 to April 2004. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In October 2017, the Veteran testified before a Veterans Law Judge (VLJ). However, in November 2018, VA sent the Veteran a letter informing him that a transcript of the October 2017 hearing was unable to be produced due to technical difficulties encountered by VA; and offered the Veteran an opportunity to testify at another hearing pursuant to 38 C.F.R. § 20.717. Subsequently, the Veteran responded in a December 2018 correspondence noting that he wanted to appear for another Board Hearing. In February 2021, the Veteran testified before the undersigned VLJ at a virtual hearing. A transcript of the hearing is of record. Service Connection Generally, to prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Certain “chronic diseases” may be presumed to have been incurred in service if they manifest to a compensable degree within one year of separation from service; however, if the evidence of the record is insufficient to establish a disease was chronic in service, and/or manifested within the specified time period, then there must be a continuity of disease symptoms shown after discharge in order to warrant service connection. 38 C.F.R. § 3.303(b). Hearing loss and tinnitus, organic disease of the nervous system, are a “chronic disease” under 38 C.F.R. § 3.309(a). 1. Entitlement to service connection for tinnitus. The Veteran contends that he currently has tinnitus that is directly related to the acoustic trauma he experienced on active duty service. After review of the record, the Board finds that service connection for the Veteran’s tinnitus is warranted. The record includes findings the Veteran has been diagnosed with recurrent tinnitus, as shown in the July 2013 VA examination and April 2016 private examination. The Board notes the Veteran’s competent and credible reports of exposure to acoustic trauma during active service, specifically, from working as a motor transport specialist with exposure to weapons fire. Additionally, the Veteran’s military personnel records confirm his military occupation of that in motor transport. See NOD, December 2013; see also Hearing Transcript, February 2021; see also DD214. Therefore, with no evidence to the contrary, and resolving any doubt in favor of the Veteran, the Board finds that in-service noise exposure (acoustic trauma) is conceded. In a July 2013 VA examination, the examiner noted the Veteran’s reports of recurrent tinnitus, with an onset between 2003 and 2004 while on active duty service. The examiner opined that the Veteran’s tinnitus was at least as likely as not a symptom associated with his hearing loss. See VA Examination, July 2013. However, the Board finds this opinion to have little probative weight, as the examiner failed to provide an etiology opinion on direct service connection or address the Veteran’s lay statements regarding the onset of his tinnitus. In an April 2016 private examination, the examiner diagnosed the Veteran with tinnitus, bilaterally; however, failed to provide an etiology opinion. See Private Treatment Records, April 2016. Therefore, given this, the Board also assigns this private examination little, if any, probative weight. Nevertheless, the Board notes that, the Veteran’s lay statements regarding the nature and onset of his tinnitus symptoms is sufficient to establish service connection. See 38 C.F.R. § 3.309(a); see also Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). A review of the record reflects that the Veteran has stated that his tinnitus first occurred during active duty service, with his ears buzzing ever since. See Form 9, February 2015; see also Hearing Transcript, February 2021. As the Veteran is competent to report his symptoms, the Board finds that the probative evidence of record is in support of the Veteran’s claim, or at the very least in relative equipoise, and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990); 38 U.S.C. § 5107. Accordingly, the claim is granted. REASONS FOR REMAND 1. Entitlement to service connection for right ear hearing loss is remanded. 2. Entitlement to service connection for left ear hearing loss is remanded. The Veteran contends that he currently has right ear hearing loss that is directly related to the acoustic trauma he experienced on active duty service. As an initial matter, the Board notes that the record includes findings that the Veteran has been diagnosed with right ear hearing loss for VA purposes under 38 C.F.R. § 3.385, as shown in the July 2013 VA examination of record. However, the VA and private examinations of record do not show a left ear hearing loss disability for VA purposes. See January 2011, July 2013 VA examination, April 2016 private examination. Additionally, as noted above, the Board concedes to the in-service noise exposure (acoustic trauma). In a July 2013 VA medical opinion, the examiner noted that he cannot provide an etiology opinion without resorting to speculation, reporting the decibel drop in the right ear since the previous VA examination in January 2011, but noted that it cannot be explained by the noise exposure during service. Nevertheless, the Board finds this opinion to be inadequate for adjudicative purposes, as the examiner failed to consider the Veteran’s competent and credible lay statements regarding the nature and onset of symptoms. Therefore, the Board finds that the Veteran should be provided an addendum VA medical opinion, prior to adjudication of the claim. Regarding the left ear hearing loss, the Veteran claims that the VA examinations do not accurately reflect his left ear hearing thresholds because he “guessed” on some of his answers during the examinations. Given this assertion, as well as his testimony suggesting worsening hearing, the claim for left ear hearing loss must be remanded for a new examination. The matters are REMANDED for the following action: 1. Request the Veteran to identify all medical providers (VA and private) from whom he has received treatment for his right ear hearing loss and obtain any outstanding records and associate them with the Veteran’s claims file. 2. After associating all newly acquired records with the claims file, provide the Veteran with a VA examination by an appropriate clinician to determine the nature and etiology of the Veteran’s right and left ear hearing loss. The entire claims file, including a copy of this remand, must be made available to the examiner, and note review of the record in the examination report. Any indicated tests or studies should be performed, and all material relevant evidence should be discussed. All pertinent medical complaints, symptoms, and clinical findings must be reported in detail. Based on review of the claims file and the examination results, the examiner is asked to address the following: (a) Indicate whether the Veteran has a hearing loss disability in accordance to 38 C.F.R. § 3.385 for the left ear. If left ear hearing loss is not shown for VA compensation purposes, the examiner is asked to address the validity of the test results. (b) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed right ear hearing loss and left ear hearing loss, if shown, had its onset during any period of active duty service, or otherwise related to his active duty service, to include the conceded in-service noise exposure. (b) Any opinion should include a detailed rationale. The examiner should consider the entire claims file, and discuss the Veteran’s lay statements regarding the nature, onset, and chronicity of symptoms. The examiner is advised that the Veteran is competent to report symptoms, and that his reports must be considered in formulating the requested opinion. (c) If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rational for the conclusion that an opinion could not be provided without resorting to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Hodges, 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.