Citation Nr: 21024428 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-38 087 DATE: April 22, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss disability is remanded. FINDING OF FACT The Veteran’s tinnitus is related to excessive noise exposure during service. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1966 to November 1968. This matter comes to the Board of Veterans’ Appeals (Board) from a decision of the Agency of Original Jurisdiction (AOJ). In May 2016, the AOJ issued a rating decision that denied the Veteran’s claim for service connection for bilateral hearing loss disability and tinnitus. The Veteran timely disagreed in a July 2016 Notice of Disagreement (NOD) and perfected his appeal in a July 2017 VA Form 9. In November 2018, the Board denied the Veteran’s entitlement claim. Then, the Veteran appealed the Board decision to the Court of Appeals for Veterans Claims (CAVC). In November 2020, the CAVC granted a Joint Motion for Partial Remand vacating the Board’s November 2018 decision. Thus, the Veteran’s claim for service connection for bilateral hearing loss disability was returned to the Board for readjudication. The Board notes the AOJ’s December 2019 Statement of the Case (SOC) is the last decision of record for the Veteran’s tinnitus claim. The claim was denied. So, entitlement to service connection for tinnitus remains an issue on appeal and is addressed below. In December 2020, the Veteran’s case was returned to the Board. 1. Entitlement to service connection for tinnitus. The Veteran contends his tinnitus is related to his service in the Army. See July 2016 NOD. The question for the Board is whether there is sufficient evidence to find the Veteran’s tinnitus is related to his service. For the reasons discussed below, the Board concludes that the evidence supports a grant of service connection. Entitlement to service connection requires evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (2007). Lay evidence, such as a claimant’s statement, can be competent and sufficient to establish a diagnosis of a condition when (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing the symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). A lay person’s statement is competent if he or she has personal knowledge which is gained through the senses, to include what is heard, felt, seen, smelled, and tasted. Layno v. Brown, 6 Vet. App. 465, 469 (1994). As to medical evidence, the probative value of a medical opinion is based on the medical expert’s personal examination of the patient, the physician’s knowledge, skill in analyzing the data, and the medical conclusion the physician reaches. Nievez-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2006). Also, whether the medical expert had sufficient facts and data to base an opinion relevant to the problem at hand. Id. at 302. If there is conflicting medical evidence, it is the Board’s responsibility to weigh them and reach a conclusion as to the grant of service connection. Id. at 300. In so doing, the Board may favor one opinion over another. Id In order to prevail on a claim for benefits, the Veteran need only demonstrate there is an approximate balance of positive and negative evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). This is because the Veteran is entitled to the “benefit of the doubt” when the evidence is approximately balanced. Id. at 53. Evidence on an issue is in “approximate balance” when the evidence for and against a finding on that issue is “almost exactly or nearly equal” or “too close to call.” Ortiz v. Principi, 274 F.3d 1361, 1364-65 (Fed. Cir. 2001). Beginning with the Veteran’s service, his entrance exam does not note any hearing problems. See January 1966 Report of Medical Examination. The Veteran’s DD214 shows he worked as a cook. It also shows he served in Vietnam. He reported that, during service, he worked near aircraft and, therefore, was around jet engine noise. He also reported he worked around generators that were constantly running. See July 2017 VA Form 9; August 2018 Statement in Support of Claim. Long after leaving service, in April 2016, the Veteran underwent his first VA tinnitus examination. Following that examination, the examiner concluded the Veteran’s tinnitus was less likely than not caused by his service. The examiner explained that there was an absence of medical evidence showing complaints or treatment for tinnitus. Also, his job as a cook is not likely to have exposed him to loud noises. See April 2016 VA DBQ at 6. In August 2019, the Veteran underwent another VA tinnitus evaluation. He reported he started observing symptoms of tinnitus during service. He described his symptoms as constant crickets in both ears. See August 2019 VA DBQ at 5. The examiner confirmed the presence of tinnitus and noted it impacts the Veteran’s ability to work by interfering with his ability to concentrate and communicate. Id. Then, the examiner concluded that the Veteran’s tinnitus was as likely as not caused by his service. The examiner explained that excessive noise can cause tinnitus. She added that the noises the Veteran heard during service, like generators that run constantly, constitute excessive noise. She opined that the excessive noise probably caused his tinnitus. Id. Turning to the Veteran’s claim for disability compensation, the first issue is whether he has a current disability. During the August 2019 VA disability examination, the examiner noted the presence of tinnitus. So, the record reflects a currently diagnosed disability. The next issue is whether there is an in-service incurrence. The Board finds the Veteran was exposed to excessive levels of noise during service. The Veteran has consistently reported he worked near generators and, at times, near jet engines. He has personal knowledge of the types of noises he heard during service. So, he is competent to report it. Layno, 6 Vet. App. at 470. The record reflects he has provided similar reports during his August 2019 disability examination. Considering reports to medical providers are generally found reliable, the Board finds his statements credible. The examiner who prepared the August 2019 disability examination evaluated the Veteran’s reports of noise exposure and found they constitute excessive noise levels. See VA DBQ at 5. Considering a medical professional who specializes in identifying hearing impairments concluded he was exposed to excessive noise levels, the Board finds the Veteran’s reports are supported by medical evidence. So, the evidence favors finding the Veteran was exposed to loud noise during service. The next issue is whether there is a nexus between the Veteran’s tinnitus and his service. Here, the examiner who conducted the August 2019 VA disability concluded there is a nexus. The examiner explained that excessive noise exposure can cause tinnitus and probably did in the Veteran’s case. Id. Because the examiner is qualified to opine on a nexus and she provided a reasoned explanation for her conclusion, the Board assigned her opinion significant weight in favor of a nexus. Nievez-Rodriguez, 22 Vet. App. at 301. The Board recognizes the examiner who prepared the April 2016 disability examination concluded there is no nexus; however, the Board finds that opinion inadequate to evaluate the issue of a nexus. The examiner appears to have based her opinion on the assumption that a cook in the Army is not likely to be exposed to loud noises during service. See VA DBQ at 6. Assuming that assumption was generally accurate, the Veteran’s lay observations of excessive noise exposure show it does not apply to this case. So, the Board finds it inadequate and did not assign it any probative value. Nievez-Rodriguez, 22 Vet. App. at 301. The Board finds the evidence is at least approximately balanced in favor of a nexus. Although there were two opinions with conflicting conclusions on the issue, the Board favored the more probative August 2019 opinion that concluded there is a nexus. So, the Veteran is entitled to the benefit of the doubt on this issue. Gilbert, 1 Vet. App. at 54. Since the Veteran has a current disability that was incurred in service and a found to be related to his service, the Veteran has established entitlement to service connection under 38 C.F.R. § 3.303. Accordingly, service connection is granted for tinnitus. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss disability is remanded. The Veteran contends his bilateral hearing loss disability is related to his service. See July 2017 VA Form 9. Although the Board regrets the delay, the Veteran’s claim must be remanded before it is able to decide on the merits. That is because the Board cannot decide the claim until AOJ has determined whether there are SSA records that are relevant to the Veteran’s disability on appeal and, if so, try to get them. The VA has a duty to assist claimants and must make “reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for benefits.” 38 U.S.C. § 5103A(a)(1). That includes a duty to attempt to obtain SSA records when it has actual notice that the Veteran is in receipt of SSA disability benefits. 38 C.F.R. § 3.159(c). But that duty is limited to obtaining relevant SSA records. Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010). They are relevant to a claim when either (1) there is a SSA decision pertaining to a medical condition related to the one for which the veteran is seeking service connection or (2) there are specific allegations “giv[ing] rise to a reasonable belief” that the SSA records may pertain to the claimed disability. Id. In August 2019, the AOJ conducted an SSA Inquiry that confirmed the Veteran was receiving SSA disability benefits since March 2004. The SSA inquiry does not provide information about the disability or disabilities that Veteran receives SSA benefits for. Nor does it show whether the Veteran sought a claim for SSA benefits based on a hearing loss disability. The Board notes that, a search of the record did not provide any additional information as to the disability or disabilities the Veteran was awarded SSA benefits for. Also, there is no indication that the AOJ has conducted any follow-up requests for his records or determined that further efforts to obtain them would be futile. Turning to the Veteran’s claim for disability compensation, since the Veteran’s SSA records have not been incorporated into the claims file, it is unclear if they are relevant to his bilateral hearing loss claim. If they are, they have a possibility of helping substantiate the claim. So, the VA should try to determine whether they are relevant. If the answer is yes, the AOJ should then help the Veteran obtain his SSA records before deciding on the merits of his claim. Golz, 590 F.3d at 1323. Accordingly, this appeal will be remanded so that the AOJ can try to clarify if the Veteran’s SSA records are relevant to the appeal and, if so, try to get them. The matter is REMANDED for the following actions: 1. Ask the Veteran to clarify the nature of his SSA benefits, to include whether he applied for SSA benefits due to a hearing loss disability. If he is receiving SSA benefits for a hearing loss disability or the SSA has evaluated a hearing loss disability claim, the AOJ should try to get those relevant records. Document all requests for information as well as all responses in the claims file. If no SSA records are available or do not exist, a response to that effect must be documented in the claims file as well. 2. If the AOJ obtains relevant records from the SSA, obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s hearing loss disability is at least as likely as not related to working near generators and jet engines during service. The examiner is asked to provide a response to the following: a. Is the Veteran’s bilateral hearing loss disability at least as likely as not (50 percent or greater probability) related to service, including working near generators and jet engines? b. Is it at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral hearing loss disability (1) began during active service, (2) manifested within one year from leaving service? c. Is it at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral hearing loss disability (1) began during service, (2) was noted during service wit, and (3) he has manifested continuous symptoms of a bilateral loss hearing disability since service? Provide a rationale to support the opinion(s). The examiner, in coming to his or her conclusion, is asked to comment on the following: i. Discuss the relevant SSA records. In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the   currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dean, Michael S. 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.