Citation Nr: 21030248 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 12-29 611 DATE: May 18, 2021 ORDER Entitlement to service-connection for tinnitus is granted. REMANDED Entitlement to service-connection for ear condition manifested as hearing loss is remanded. FINDING OF FACT Affording the Veteran the benefit of reasonable doubt, the Board finds that the Veteran's current tinnitus disability is at least as likely as not the result of in-service military noise exposure. CONCLUSION OF LAW The criteria for entitlement to service-connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Air Force from April 1981to February 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in September 2015. This case was previously before the Board in March 2016, December 2018, and January 2021, where it was remanded to the Agency of Original Jurisdiction (AOJ) for further development in each instance. Entitlement to 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 military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also 38 C.F.R. § 3.303, Hickson v. West, 12 Vet. App. 247, 252-53 (1999). Certain chronic diseases listed in 38 C.F.R. § 3.309(a) will be service connected on a presumptive basis if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Tinnitus is an organic disease of the nervous system and is therefore a chronic disease under 38 C.F.R. § 3.309(a). See Fountain v. McDonald, 27 Vet. App. 258 (2015). The Veteran is competent to testify as to his subjective experience. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). A Veteran is competent to report symptoms tinnitus because symptoms of tinnitus are capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In this case, affording the Veteran the benefit of reasonable doubt, the Board finds that the Veteran's present tinnitus disability is at least as likely as not related to service. The Veteran contends that his tinnitus is due to exposure to hazardous noise in-service from proximity to flight lines, aircraft machinery, and weaponry firing. At his August 2015 Board hearing, the Veteran testified that although he noticed tinnitus closely following his separation from service, it was not until it significantly worsened in 2000 that he sought medical attention for his hearing. He testified that when he received the hearing test, examiners did not ask whether he was already experiencing tinnitus and only assessed his hearing loss, which was found insufficient for VA compensation. A February 2021 examiner opined that the Veteran's tinnitus was less likely than not related to service, finding that the absence of in-service hearing loss reflected in audiograms cut against a grant of service connection. Citing medical literature, the examiner concluded that "only seldom does noise cause a permanent tinnitus without causing hearing loss." By the very nature of the statement, the examiner still admits a possibility that tinnitus can occur without hearing loss, yet the examiner does not explain why the Veteran's case is unlikely to fall within that possibility. Additionally, the examiner relies on the Veteran's latent report of tinnitus, but does not address his explanation for latent reporting and why his explanation may or may not be significant in this analysis. Considering the facts in a light most favorable to the Veteran and affording him the benefit of the doubt, the Board finds the Veteran's testimony to be credible and accordingly finds that service-connection for tinnitus should be granted. REASONS FOR REMAND Entitlement to service-connection for ear condition manifested as hearing loss is remanded. The Board finds that another remand is necessary to obtain a medical opinion that fully assesses the Veteran's current ear condition, which has manifested in hearing loss. The Veteran is presently diagnosed with sensorineural hearing loss in the left ear. In February 2021, VA obtained two medical opinions regarding the Veteran's ear conditions as they pertain to hearing loss. The February 3, 2021 examiner opined that the Veteran's current hearing loss disability is less likely than not related to service, finding that repeated audiometric testing between 1981 and 2016 consistently showed hearing within normal limits and the absence of a threshold shift in hearing until 2017 cut against a finding of service connection. In her analysis, the examiner referenced the Veteran's history of otitis media and how it would account for many of the Veteran's ear condition symptoms, including hearing loss, but then stated that the Veteran does not suffer from the exact type of hearing loss necessary to draw a nexus between his otitis media and his hearing loss. The examiner also stated that while the Veteran shows signs of Meniere's disease including dizziness, "balance issues," asymmetric hearing loss, and tinnitus the record does not show that he was ever diagnosed with Meniere's in the past. The examiner does not opine as to whether the Veteran can currently be diagnosed with Meniere's, particularly given that she indicates he shows symptoms of Meniere's disease, nor whether a diagnosis of Meniere's would account for his current hearing loss. The February 12, 2021 examiner also rendered a negative opinion as to the etiology of the Veteran's current ear condition, but this time focusing on the Veteran's reports of dizziness and vertigo. The examiner concludes that dizziness/vertigo are not related to the Veteran's service because the record does not indicate the Veteran experienced any inner ear injury or noise trauma while in service. However, the Veteran's January 1984 separation examination does reflect a complaint of dizziness and fainting spells. The examiner did not address this potentially favorable evidence. The examiner additionally also notes that the Veteran has the signs and symptoms of Meniere's disease, but makes no assertions regarding a present diagnosis, in service incurrence, or a causal relationship with the Veteran's current hearing loss condition. In light of the totality of the evidence, the Board finds that another opinion must be obtained to determine the etiology of the Veteran's current ear condition, which has manifested in hearing loss. Although both the February medical reports rendered findings against service connection, both opinions intimate that there may be mechanisms of hearing loss that have yet to receive full consideration in a medical evaluation. As to otitis media, the Veteran's lay statements of repeated in-service treatment for ear infections were not considered in its dismissal as a possible cause of the Veteran's present hearing loss. As to Meniere's disease, both examiners acknowledged that the Veteran currently displays the symptoms of it and that it can manifest in hearing loss; however, no actual diagnosis of Meniere's has ever been rendered, nor has a service connection nexus opinion for Meniere's ever been rendered. Therefore, the Board finds that new medical opinions must be obtained to consider these additional mechanisms though which the Veteran's current hearing loss disability may have manifested. The matter is REMANDED for the following action: Obtain a new VA medical opinion regarding the etiology of the Veteran's current ear condition manifesting in hearing loss. The opinion must address the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current otitis media condition was caused or aggravated by the Veteran's active service. If the examiner finds that the Veteran's otitis media is related to service, the examiner must further opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current hearing loss disability was caused or aggravated by the Veteran's otitis media. The examiner must consider the Veteran's lay testimony of repeated in-service treatment for ear infections in the rendering of the opinion. The examiner may not dismiss the Veteran's lay testimony solely on the basis that the infections were not recorded in service treatment records. (b.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran currently meets the criteria for a diagnosis of Meniere's disease. If the examiner finds that the Veteran currently meets the criteria for a diagnosis of Meniere's disease, the examiner must further opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's Meniere's disease was caused or aggravated by the Veteran's active service. If the examiner finds that the Veteran's Meniere's disease is related to service, the examiner must further opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current hearing loss disability was caused or aggravated by the Veteran's Meniere's disease. In rendering the opinion, the examiner must consider the admissions by the February 2021 examiners of the Veteran's signs and symptoms of Meniere's disease, as well as the January 1984 separation exam notation of dizziness and fainting spells. The examiner must specifically acknowledge and discuss the Veteran's claims of in-service noise exposure. Simply observing that hearing loss was not noted at separation from service or on in-service hearing tests will be deemed an inadequate rationale for a negative etiology opinion on a hearing loss disability. If the examiner attributes the current hearing loss disability to post-service noise exposure, or any other cause, rather than in-service noise exposure, he or she must provide a rationale for this finding. The examiner is advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Narnor, Harriyah 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.