Citation Nr: 21027171 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 17-47 795 DATE: May 4, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT Affording the Veteran the benefit of the doubt, he has a current tinnitus disorder which had its onset during his active duty. CONCLUSION OF LAW Tinnitus was incurred during the Veteran's active duty service. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1970 to September 1973, including service in the Republic of Vietnam. This case comes to the Board of Veterans' Appeals (Board) from a February 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office. In November 2020, the Veteran attended a virtual Board hearing before the undersigned Veterans Law Judge. Tinnitus The Board finds that there is adequate evidence to establish that the Veteran has credibly reported having symptoms of tinnitus which began during his military service, and entitlement to service connection for tinnitus is warranted. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). The Veteran's DD Form 214 shows that his last assignment was with an artillery battalion, and his personnel records show that he took part in the Vietnam counteroffensive, phase 7. The Veteran testified at a November 2020 Board hearing that while in service, he worked as a vehicle driver supporting artillery, and therefore he was frequently around artillery, including when they were fired. He stated that he noticed the buzzing in his ears immediately after leaving service. The Veteran also reported to the VA examiner in February 2016 that his tinnitus may have first begun while he was still in service. The Board finds that there is evidence demonstrating that the Veteran was in an environment in service where he would be exposed to significant acoustic trauma. The Veteran has also credibly asserted that he experienced ringing in his ears in service and continuously since just after getting out of service to the present, and he is competent to identify ringing in his ears as a symptom of tinnitus. See Charles v. Principi, 16 Vet. App. 370 (2002); see also Fountain v. McDonald, 27 Vet. App. 258 (2015). As the Veteran has reported having tinnitus in and immediately after service, and continuing to the present day, the Board accepts that the Veteran incurred a chronic tinnitus disorder in service, and entitlement to service connection for tinnitus is granted. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("By requiring only an 'approximate balance of positive and negative evidence' the Nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding... benefits."). REASONS FOR REMAND Bilateral Hearing Loss The Veteran has also applied for service connection for bilateral hearing loss. The Veteran testified in November 2020 that he was exposed to frequent, close-by artillery firing in service, and that he believes he currently has hearing loss that is related to that noise exposure. The Veteran attended a VA examination in February 2016. The VA examiner found that the Veteran's bilateral hearing loss was less likely than not related to service because his hearing did not have significant threshold shifts in service. The examiner stated that "Electronic hearing testing conducted at enlistment and at discharge shows the veteran did not have a significant threshold shift beyond normal variability while in service." The examiner did not actually reference any specific dates for the supposed testing results that he reviewed, or what the hearing threshold findings were. It appears to the Board, however, that the Veteran's service treatment and personnel records only contain multiple copies of the Veteran's separation examination, and no copies of an entrance examination which could be used for comparison. The Board therefore finds that this VA medical opinion is not an accurate representation of the facts in this case, and remands the issue so that a new medical opinion can be obtained which specifically addresses this Veteran's contentions and medical history, including all findings in his service treatment records. The Board also requests that an additional attempt be made to obtain the Veteran's service treatment records, as the current records are clearly incomplete. The VA examiner should then fully explain his findings, including referencing the hearing threshold results in the service treatment records which he/she finds to be relevant to the opinion. Additionally, the February 2016 VA examination did not find that the Veteran had a current hearing loss disability for VA purposes, but the Veteran has reported at the Board hearing that his hearing loss has worsened since 2016, and likely could now meet the criteria for a hearing loss disability. The matters are REMANDED for the following action: 1. Attempt to obtain all of the Veteran's service treatment records. If all records cannot be obtained, make a formal finding explaining the steps taken to obtain these records, and notify the Veteran that his complete service treatment records could not be found. 2. Schedule the Veteran for an examination to address the nature and etiology of his bilateral hearing loss. The examiner is to be provided access to the Veteran's entire claims file, and must specify in the report that these records have been reviewed. The examiner should then discuss: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's bilateral hearing loss was incurred in or caused by service? Please discuss the Veteran's reports of being exposed to artillery noise in service, including during his service in Vietnam, and the personnel records that confirm that he served in an artillery unit. If the examiner relies on any service treatment record findings for the conclusion, he/she must specifically cite the date of this record and the numeric test results contained within them. A complete and fully explanatory rationale must be provided for any opinion offered. If the examiner finds the Veteran's lay assertions not to be credible, he/she must explain why. If any opinion cannot be rendered without resorting to speculation, the examiner must explain why. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mary E. Rude, 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.