Citation Nr: 21025584 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 21-00 402 DATE: April 28, 2021 ORDER Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran has a current diagnosis of tinnitus. CONCLUSION OF LAW The criteria to establish service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020) REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service in the Army from March 1954 to March 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2018 rating decision, which denied service connection for both bilateral hearing loss and tinnitus. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (c) (2020). In cases where a veteran's service records are unavailable through no fault of his or her own, there is a “heightened duty” to assist a veteran in development of claims. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Veteran’s service records are deemed unavailable. Efforts to locate the records, including an attempt to reconstruct the Veteran’s service records, were largely unsuccessful, with the exception of one personnel record. See May 2018 National Archives and Records Administration response: Personnel Information Exchange System and National Personnel Records Center responses. The Veteran was accordingly notified of the fire-related destruction of service records. Further attempts to secure any additional records would therefore be futile. Service Connection Claim for Tinnitus Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C. § 7104 (a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2020). The Veteran seeks service connection for tinnitus. His military occupational specialty (MOS) was Infantryman, a position that had a high probability of hazardous noise exposure. On review however, the Board finds that the Veteran does not meet the threshold requirement of a current disability as the preponderance of the evidence is against a finding that the Veteran has a current diagnosis of tinnitus. There is no evidence of a diagnosis of tinnitus in the Veteran’s medical records. With regard to the lay evidence, the Veteran is competent to report tinnitus, as it is a condition capable of lay observation; however, his statements are inconsistent. The Veteran filed a claim for tinnitus in March 2018, in which he stated that he had tinnitus, but at his July 2018 VA examination, he did not report recurrent tinnitus and there was no diagnosis of tinnitus. In his August 2018 notice of disagreement (NOD), he reported that although he had tinnitus for many years, it ceased in the past year, which was prior to the date of claim. Moreover, in a December 2019 statement in support of claim, he stated that he had no “noise” in his ears. To the extent the Veteran reported that he had tinnitus when filing his claim back in March 2018, the Board finds that more remote assertion made for VA compensation purposes to be less credible, because it is contradicted and outweighed by the more contemporaneous lay evidence, including the Veteran’s own statements in August 2018 and December 2019 that he no longer had noise in his ears and at the July 2018 VA medical examination. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (Board decision properly assigned more probative value to a private hospital record that included lay history that was made for treatment purposes than to subsequent statements made for compensation purposes). The Board concludes that the Veteran in this case does not have a current diagnosis of tinnitus. Absent a current disability during the pendency of the claim, service connection cannot be granted. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, the appeal for service connection for tinnitus is denied. There is no reasonable doubt to be resolved in this case. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND A remand is necessary to obtain outstanding records and provide the Veteran with an adequate VA audiology examination to ascertain the likely etiology of his hearing loss. The Veteran underwent a VA audiology examination in July 2018, at which time the VA examiner confirmed a diagnosis of bilateral hearing loss. The VA examiner opined that the Veteran’s hearing loss was less likely than not related to his service. The examiner noted that that the Veteran’s MOS had a high probability of hazardous noise exposure but explained that the shape of the Veteran’s audiogram is not consistent with noise-induced hearing loss, and is rather characteristic of presbycusis. However, the Board observes that, in his substantive appeal, the Veteran reported wearing hearing aids for approximately 60 years; this statement dates the initial wearing of hearing aids to the 1960’s, shortly after service, or when the Veteran was in his late 20’s or early 30’s of age, which appears to contradict audiogram results characteristic of presbycusis (age-related hearing loss). Further, the Veteran reported operating an overhead crane for Weyerhaeuser after service and it is therefore possible that he underwent medical and audiological examinations for Weyerhaeuser in order to operate an overhead crane which could be helpful to the Veteran’s claim. On remand, attempts to secure any such records should be made. Accordingly, the matter is REMANDED for the following action: 1. Contact the Veteran and ask him to identify any information relating to his claim for bilateral hearing loss, to include any private treatment records or employment examinations, particularly when working at Weyerhaeuser (see July 2018 VA examination report). Then provide him VA Forms 21-4142, Authorization and Consent to Release Information to the VA, for any identified outstanding and relevant private treatment records. Advise him that he may submit such records if he so chooses. 2. Regardless of whether new evidence is received, obtain an addendum medical opinion from an appropriate VA examiner with regard to the likely etiology of the Veteran’s bilateral hearing loss. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. After a review of the record, the examiner is asked to respond to the following: Provide an opinion as to whether it is at least as likely as not (a 50 percent or higher probability) that the Veteran’s bilateral hearing loss had its onset during service or is otherwise related to it, to include exposure to acoustic trauma stemming from his MOS as an Infantryman. **In doing so, please address: (a) the Veteran’s competent reports that he had hearing aids since his late 20’s and (b) further explain the July 2018 diagnosis of presbycusis given the Veteran’s reports of having had hearing aids since his late-20’s. A complete rationale should be provided for all opinions. 3. Thereafter, readjudicate the remanded claim. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Beach, 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.