Citation Nr: 21025983 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-13 295 DATE: April 29, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral 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, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from March 1969 to February 1971. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In March 2020, the Board issued a decision denying the Veteran’s claims for service connection. The Veteran appealed the Board’s denial decision to the United States Court of Appeals for Veterans Claims (CAVC), resulting in the November 2020 Joint Motion for Remand (JMR), which vacated the March 2020 decision, and remanded for re-adjudication consistent with its decision. Regrettably, the Board finds that a remand is needed prior to readjudication of the claim for entitlement to service connection for bilateral hearing loss. 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). 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 June 2013 VA examination. The Board notes the Veteran’s competent and credible reports of exposure to acoustic trauma during active service, specifically, from noise at the rifle range during basic training, airplane engines while working as a cook in the mess hall across the street from the Base, and from being onboard C-123 planes and firing M-16s on a gun range. See BVA Letter, April 2016. 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 June 2013 VA examination, the examiner noted the Veteran’s reports of recurrent tinnitus, with an onset while on active duty service. However, the examiner noted that she could not provide a medical opinion regarding etiology without resorting to speculation, as the Veteran’s audiogram results were not valid for rating purposes. See VA Examination, June 2013. However, the Board finds this opinion to have little probative weight, as the examiner failed to provide a rationale explaining why the Veteran’s audiogram results are indicative or determinative of whether the Veteran’s tinnitus is related to his service. 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 the ringing in his ears first occurred during basic training after being on the rifle range, which had continued throughout service and gotten worse, and has continued even after returning home from service. See BVA Letter, April 2016. 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 bilateral hearing loss is remanded. The Veteran contends that he currently has bilateral hearing loss that is directly related to the acoustic trauma he experienced on active duty service. As noted above, the CAVC issued a JMR for vacatur of the prior Board decision due to the Board failing to ensure that the duty to assist was fulfilled with regards to providing the Veteran with an adequate VA hearing loss examination, pursuant to Barr v. Nicholson, 21 Vet. App. 3030, 311 (2007). Thus, additional development of the medical evidence of record is required in accordance with VA’s duty to assist. In June 2013, the Veteran was afforded a VA examination to assess the current nature and etiology of his claimed condition. After examination, the examiner indicated that the Veteran’s hearing could not be tested (CNT) and the test results were not valid for rating purposes, as the Veteran’s pure tone responses did not match SRT (speech recognition threshold) or speech discrimination scores. Additionally, the examiner noted that a medical opinion regarding the etiology of the Veteran’s hearing loss could not be provided without resorting to speculation due to the audiogram results being invalid for rating purposes. Nevertheless, the Board finds this VA examination and medical opinion to be inadequate, as even though the examiner indicated she could not test the Veteran’s hearing, she failed to provide an explanation as to why. Furthermore, the Board notes that examiner failed to review the Veteran’s claims file in conjunction with this examination and rendering an opinion. Therefore, the Board finds that a new examination and opinion is necessary to adequately determine whether the Veteran’s currently has bilateral hearing loss, and whether it is related to his in-service noise exposure. Moreover, the Board notes that a review of the Veteran’s service treatment records (STRs) revealed the Veteran had left ear hearing loss at 500 Hertz during his enlistment examination in January 1969. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (the Court indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss). However, even though this left ear hearing loss would not constitute hearing loss for VA purposes (McKinney v. McDonald, 28 Vet. App. 15 (2016) held that for a hearing defect to be noted at service entrance, it must meet the criteria set forth in 38 C.F.R. § 3.385), and thus, is not a pre-existing left ear hearing loss disability at service entrance; the Board finds that this degree of hearing loss should be addressed by a VA examiner prior to readjudication of the claim. Accordingly, a remand is necessary to address the matters discussed above. 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 bilateral 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, schedule the Veteran for a VA examination and provide a medical opinion by an appropriate clinician to determine the nature and etiology of the Veteran’s bilateral 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. Following complete review of the record, the examiner must address the following: (a) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral hearing loss had its onset during any period of active duty service, or is otherwise etiologically related to service, to include the conceded in-service acoustic trauma. Please note: the examiner must discuss the left ear hearing loss at 500 Hertz during enlistment examination in January 1969. (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. See Jones v. Shinseki, 23 Vet. App. 382. (2010). 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.