Citation Nr: 21027489 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 19-30 253 DATE: May 5, 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 Veteran's tinnitus did not have onset during active service and is not otherwise related to his active service, including noise exposure. CONCLUSION OF LAW The criteria to establish service connection for tinnitus have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1961 to August 1964. This appeal stems from a December 2018 rating decision that denied both claims on appeal. In July 2020, the Board remanded the claim for further development, to include providing the Veteran with a new VA examination. Service Connection for Tinnitus 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 service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection requires: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Tinnitus is considered a "chronic" disease under 38 C.F.R. § 3.309(a). Therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic diseases in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic' disease became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The Veteran generally asserts that his tinnitus is related to active duty service. Service treatment records are silent for any complaints, treatment, or diagnosis of tinnitus. Post-service treatment records until 2017 show no audiology complaints. During the December 2018 audiology compensation examination, the Veteran denied having tinnitus. However, in his January 2019 notice of disagreement, the Veteran explained that he reported to the examiner that he had tinnitus numerous times per day. In an August 2019 addendum, the examiner reiterated that the Veteran denied having tinnitus during the 2018 examination, and if present, it began in the previous year, and as such, was not related to military service. During the most recent January 2021 audiology examination, the Veteran reported tinnitus but did not remember any details related to the tinnitus. He described it as intermittent, "comes and goes," and indicated that it did not occur daily. It was described as "ringing." The examiner opined that the Veteran's tinnitus was less likely than not a symptom of the Veteran's hearing loss. The examiner explained that the tinnitus was described as intermittent and random, which was found in more than 90 percent of the normal hearing population. This was contrary to constant tinnitus, which was associated with hearing loss. The examiner further opined that the tinnitus was less likely than not caused or a result of military noise exposure. The examiner again noted that the Veteran's tinnitus occurred intermittently, not even daily, and that such type of tinnitus was not associated with damage from noise exposure unlike constant tinnitus. The examiner explained that the Veteran's description of symptoms did not meet the Dauman and Tyler (1992) definition of tinnitus cited in the tinnitus handbook. The Veteran reported transient ear noise that occurred in the general population without auditory damage or pathology, and the examiner stated that this transient ear noise was not consistent with noise-induced tinnitus and was less likely than not related to military service. On review, the Board finds that the preponderance of the evidence is against the service connection claim for tinnitus. The Board finds that the Veteran was exposed to loud noise during service as a result of his military occupational specialty, and as such, the Board finds that exposure to hazardous noise is conceded. Although there is conflicting evidence as to whether the Veteran meets the medical definition of tinnitus, the Board resolves all doubt in the Veteran's favor in finding that he does have a current diagnosis because he reported that he had tinnitus, a condition capable of lay observation, during the 2021 audiology examination. However, the Board finds that the evidence is against finding that tinnitus had its onset during service, manifested to a compensable degree within a year of separation from service, or was continuous since service. In fact, he specifically could not recall any details of his claimed tinnitus and denied having tinnitus during the 2018 examination report. Although he later explained that he in fact reported tinnitus during the 2018 examination, he never asserted that the tinnitus was present during service, that it began within a year of discharge, or has been continuous since service. For these reasons, the criteria for presumptive service connection under 38 C.F.R. § 3.303(b) based on either "chronic" symptoms in service or "continuous" symptoms since service have not been met. Additionally, for the same reasons, the evidence does not show that tinnitus manifested to a compensable (i.e., at least 10 percent) degree within one year of service separation. Therefore, presumptive service connection under the provisions of 38 C.F.R. § 3.309(a) is not warranted. Service connection on a direct basis is also not warranted in this case. In this regard, the Board agrees that the Veteran's as a lay person is competent to report past and current tinnitus symptoms, and can self-diagnose tinnitus, because its symptoms are observable through the senses; however, an opinion as to the etiology of the Veteran's tinnitus involves making findings based primarily on medical knowledge of auditory disorders. It is a complex medical question dealing with the neurologic system (acoustic trauma and nerve damage). The Board finds that the January 2021 audiologist's opinion outweighs the lay evidence in this case. Indeed, the audiologist has expertise and training in the area of auditory disorders. Notably, the examiner explained that the type of tinnitus reported by the Veteran was not the type associated with hearing loss and/or acoustic trauma. Accordingly, the Board finds that the competent and credible evidence weighs against finding that the Veteran's tinnitus was causally or etiologically related to service; therefore, the appeal is denied, and the benefit-of-the-doubt doctrine does not apply. REASONS FOR REMAND The Board finds that an additional remand is necessary to obtain an addendum medical opinion regarding the claimed bilateral hearing loss. Despite the Board's remand request, the 2021 VA examiner did not address the significance of the in-service audiograms and how those showed some degree of hearing loss, specifically when converted from American Standards Association (ASA) units to International Standard Organization (ISO) units. Instead the examiner concluded that the Veteran did not have any hearing loss for VA purposes in service. Accordingly, an additional remand is necessary prior to deciding the claim on the merits. The matters are REMANDED for the following action: 1. Obtain another medical opinion from an appropriate VA examiner regarding 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. After a review of the record, the examiner is asked to respond to the following: (a) Convert all in-service audiograms from American Standards Association (ASA) units to International Standard Organization (ISO) units. Then respond to the following: (b) Did the Veteran's right or left ear hearing loss preexist service? If so, was it aggravated beyond its natural progression during service? (c) For any hearing loss that did not preexist service, provide an opinion as to whether it at least as likely as not (a 50 percent probability or greater) had its onset during service or is otherwise causally or etiologically related to it, including in-service acoustic trauma. A complete rationale should be provided for all opinions. 2. Thereafter, readjudicate the remanded claim. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Yaffe, 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.