Citation Nr: 21025744 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 17-19 808 DATE: April 28, 2021 ORDER Entitlement to service connection for tinnitus is granted. FINDING OF FACT Resolving all reasonable doubt in the Veteran’s favor, his tinnitus is at least as likely as not the result of in-service noise exposure.  CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.  REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1966 to March 1968. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified before the undersigned Veterans Law Judge at a video conference hearing. A transcript of the hearing is of record. The Board remanded these matters in November 2019 and January 2021 for additional development. The case is now returned to the Board. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic disorders, to include tinnitus, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In such cases, the disease is presumed under the law to have had its onset in service even if there is no evidence of such disease during service. 38 C.F.R. § 3.307(a); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Gilbert, 1 Vet. App. at 53-56. Entitlement to service connection for tinnitus The Veteran seeks entitlement to service connection for tinnitus, which he contends was incurred in or caused by military service. The Board notes that the Veteran’s military occupational specialty (MOS) was power plant operator, an MOS that is highly probable for hazardous noise exposure. The Veteran has stated that he performed his military duties, which included maintaining and repairing diesel generators, without the use of hearing protection. The Veteran testified at his August 2019 Board hearing that he noticed changes to his hearing during service. He described hearing a “dull sound” that “would come and go,” particularly after finishing his daily shift working near the generators. As an initial matter, the Board notes that the Veteran is competent to describe the nature and extent of his in-service noise exposure. See C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Therefore, based on his lay testimony, the Veteran’s exposure to excessive military noise during service is conceded by the Board. Moreover, the Board notes that tinnitus is a type of disability that may be established on the basis of lay evidence alone. Charles v. Principi, 16 Vet. App. 370 (2002). As such, there is no dispute that the Veteran has a current diagnosis of tinnitus. The question remaining before the Board is whether the Veteran’s current tinnitus is etiologically related to his in-service noise exposure. Based on a careful review of the subjective and clinical evidence of record, the Board resolves all reasonable doubt in favor of the Veteran and finds that service connection for tinnitus is warranted. The Board notes that four VA medical opinions have been obtained during the course of this appeal to attempt to resolve the etiology of the Veteran’s tinnitus. An October 2016 VA examiner opined that tinnitus is less likely than not caused by or a result of military noise exposure. The examiner based this conclusion on an absence of complaint for tinnitus in the service treatment records and the Veteran’s statement during the examination that he is “unsure” when he first noticed his tinnitus. In January 2020, a different VA examiner also provided a negative nexus opinion for similar reasons, noting that on examination the Veteran had reported that his tinnitus began sometime after service, but he was unsure when. Thereafter, in a February 2021 addendum, the same VA examiner who performed the January 2020 examination changed her opinion and found that it is at least as likely as not that the Veteran’s tinnitus “could be” related to his military noise exposure, stating that “it is possible that his tinnitus started within one year of separation.” When the RO requested another addendum a few days later, the same VA examiner stated, “I return to my previous opinion that his tinnitus is less likely than not a result of military noise exposure and more likely a result of his mixed hearing loss.” The Board does not find any of the abovementioned VA opinions to be adequate to fairly resolve the Veteran’s claim. The October 2016, January 2020, and (second) February 2021 opinions do not contain adequate rationales. They rely almost exclusively on the absence of documented tinnitus in the Veteran’s service treatment records without consideration of the Veteran’s MOS duties and exposure to hazardous noise during service. Moreover, the first February 2021 opinion, although favorable, is too speculative for the Board to rely on as a basis to grant service connection. The Board recognizes that the record does not contain an adequate medical opinion with regard to the etiology of the Veteran’s tinnitus. Nonetheless, the Board finds that there is sufficient evidence in the record to decide the claim. In the absence of an adequate medical opinion to the contrary, the Board accepts the Veteran’s hearing testimony that he first noticed changes to his hearing during service, especially after finishing his daily shift working around power generators. Although the Veteran did not specifically identify his hearing changes as “tinnitus,” he described hearing a “dull sound” that “would come and go.” The Board is satisfied that the Veteran has described experiencing symptoms of tinnitus during service. See Layno, 6 Vet. App. at 469-70. Based on the Veteran’s competent and credible testimony regarding the onset of his symptoms of tinnitus, the Board finds that the evidence is at least in equipoise that the Veteran’s tinnitus was caused by his in-service noise exposure. Accordingly, resolving all reasonable doubt in the Veteran’s favor, the appeal as to entitlement to service connection for tinnitus is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. REASONS FOR REMAND Although further delay is regrettable, the Board finds that additional development of the Veteran’s remaining claim is necessary prior to appellate review. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran seeks service connection for bilateral hearing loss, which he contends was incurred in or caused by military service. The Veteran asserts that he performed his military duties of power plant operator, which included maintaining and repairing diesel generators, without the use of hearing protection and that he first noticed changes to his hearing acuity after his daily shifts working near the generators. The Veteran’s exposure to acoustic trauma during military service has been conceded. The Board notes that at his March 1966 entrance examination, the Veteran was found to have a hearing loss impairment in his right ear. This was noted on the examination report; nonetheless, he was found qualified for entry onto active duty. However, at his October 1967 separation examination, his hearing acuity was noted to be within normal limits in both ears. Service department audiometric readings prior to October 31, 1967 are presumed to be in American Standards Association (ASA) units and must be converted to International Standard Organization (ISO) units to be compared with later results. Since the Veteran’s entrance and separation examinations were performed prior to October 31, 1967, the audiometric testing performed at both examinations must be converted from ASA units to ISO units. The Board notes that none of the three VA medical opinions that have been obtained during the pendency of the Veteran’s appeal consider the Veteran’s in-service audiometric testing under the proper conversion to ISO units. As such, remand is required to obtain a medical opinion that adequately considers the converted audiometric results. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to obtain a medical opinion when developing a service connection claim, it must provide one that is adequate for the purposes of the determination being made). To facilitate data comparison, the entrance and separation audiometric test results have been converted to ISO units below. Upon conversion from ASA to ISO, the results of the Veteran’s March 1966 entrance examination audiometric study are as follows (with conversion show in parentheses below): HERTZ 500 1000 2000 3000 4000 RIGHT 25 (40) 25 (35) 35 (45) 35 (45) 15 (20) LEFT 15 (30) 5 (15) 5 (15) 5 (15) 10 (15) Upon conversion from ASA to ISO, the results of the Veteran’s October 1967 separation examination audiometric study are as follows (with conversion show in parentheses below): HERTZ 500 1000 2000 3000 4000 RIGHT 10 (25) 10 (20) 10 (20) - 10 (15) LEFT 10 (25) 10 (20) 10 (20) - 10 (15) Moreover, the Board notes that, as hearing loss in the right ear was noted upon the Veteran’s entry onto active duty, the Veteran’s claim with regard to his right ear must be considered based on a theory of aggravation of a preexisting disability. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) (explaining that “if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder”). However, a medical opinion has not yet been obtained to address this theory of entitlement. As such, the medical opinion obtained on remand must also properly assess whether the Veteran’s preexisting right ear hearing loss disability was aggravated during service before the Board can render an informed decision on the claim. See Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). Accordingly, the matter is REMANDED for the following action: Forward the Veteran’s claims file, including a copy of this REMAND, to a VA audiologist to provide an addendum medical opinion addressing the nature and etiology of the Veteran’s bilateral hearing loss. A full audiological examination should not be scheduled unless it is deemed necessary by the examiner or otherwise required by the evidence. The examiner must review the claims file in its entirety and that review should be noted in the examination report. Thereafter, the examiner is asked to provide a fully-articulated medical opinion addressing the following: (a) Is it clear and unmistakable (i.e. obvious, manifest, and undebatable – a very high burden of proof) that the Veteran’s preexisting right ear hearing loss WAS NOT aggravated (worsened in severity beyond the normal progression of the disease) during service? (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s left ear hearing loss had its onset during active service, within one year of separation, or is otherwise related to an in-service disease, event, or injury, to include conceded military noise exposure? In providing responses to the above, the examiner must consider the conversion from ASA standards to ISO standards for all in-service audiometric testing. The examiner must also attempt to explain how the apparent improvement in the Veteran’s hearing acuity between entry and separation would be possible, especially in light of the Veteran’s MOS and his conceded exposure to significant acoustic trauma during service. The opinion must adequately consider and discuss the relevant evidence of record, to specifically include: • Service treatment records: (i) March 1966 entrance examination noting the Veteran to have impaired hearing; (ii) March 1967 medical record showing diagnosis and treatment for otitis externa of the right ear; (iii) October 1967 separation examination noting the Veteran to have normal hearing; • The Veteran’s MOS of power plant operator and his description of duties during service; • The Veteran’s hearing testimony that he noticed a change in hearing acuity during service, particularly after completing his daily shift working near the power generators; • The Veteran’s hearing testimony that he does not remember having performed a hearing test at the October 1967 separation examination, and the Veteran’s representative’s argument at the hearing questioning the reliability and/or authenticity of the audio test results noted on the Veteran’s separation examination report; • August 2019 private audiology record from Northwest Hearing, in which the audiologist opined that the Veteran’s hearing loss is due to loud noise exposure and finding the Veteran’s hearing tests in service to be “unreliable.” The examiner is reminded that the absence of complaint or diagnosis of hearing loss or injury to the ear during service cannot serve as the sole basis for a negative finding. The lay statements and other evidence of record must be considered and weighed in making the determination as to whether a nexus exists between the claimed disability and the Veteran’s military service. The examiner must set forth a complete rationale for any conclusion reached, citing to the examiner’s clinical experience, medical expertise, and established medical principles, as well as evidence in the Veteran’s claims file, as necessary. If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why that is so. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Melissa Barbee, 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.