Citation Nr: 21031644 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 19-29 857 DATE: May 24, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT The lay and medical evidence is at least evenly balanced as to whether the Veteran's current tinnitus was incurred in service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1960 to August 1962. On his October 2019 VA Form 9, the Veteran requested a video conference hearing, but he subsequently withdrew his hearing request in April 2021. As such, the Board finds all due process has been afforded the Veteran with respect to his hearing. 1. Entitlement to service connection for tinnitus Establishing service connection generally requires competent evidence of the following: (1) 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. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In Charles v. Principi, 16 Vet. App. 370, 374-375 (2002), the Court specifically held that tinnitus is a condition which is capable of lay observation. See also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran reported having tinnitus during the August 2018 VA audiological examination, as well as during a subsequent private audiogram conducted in January 2019. This evidence sufficiently establishes the presence of the currently claimed disability, tinnitus. The Veteran's service treatment records (STRs) do not contain any complaints, treatment, or findings related to tinnitus or ringing in his ears, including during his May 1962 separation examination. Nevertheless, the Veteran has asserted that he recalls hearing ringing in his ears on a regular basis during service, specifically while delivering ammunition to and from the firing range. He has also asserted that his tinnitus has been an ongoing problem for many years. See October 2019 VA Form 9. In this regard, the record reflects that the military occupational specialty (MOS) was a heavy vehicle driver or, motor transport operator, which the Agency of Original Jurisdiction (AOJ) has noted indicates a moderate probability of noise exposure. See July 2018 examination request. The Board finds this evidence is consistent with the places, types, and circumstances of the duties the Veteran described performing during his military service. See 38 U.S.C. § 1154(a) (due consideration must be given to the places, types, and circumstances of a veteran's service). Therefore, the Board finds the Veteran's assertions regarding his in-service noise exposure and the onset, nature, and progression of his tinnitus is considered competent and credible lay evidence of such. Turning to the question of whether there is a nexus, or link, between the current disability and service, the Board finds that the evidence is, at least, in relative equipoise. During the August 2018 VA examination, the examiner noted that the Veteran reported his tinnitus had its onset two years ago when his hearing started to decrease. The VA examiner opined that it is less likely than not that the Veteran's tinnitus was caused by or a result of his military noise exposure, noting the Veteran's report that his tinnitus had its onset after service and the lack of evidence showing a report of tinnitus in the STRs, at separation from service, or in the medical records until the time of the claim. The VA examiner also noted that the current literature does not support late onset noise-induced tinnitus. See August 2018 VA examination. The August 2018 VA examination is considered competent evidence. However, the Board finds that the examiner's nexus opinion is afforded lessened probative value because the opinion is based on the lack of objective evidence showing reports of tinnitus during or after service without consideration of the Veteran's competent and credible statements regarding the onset of tinnitus during service and its continued nature since that time. Indeed, the Veteran has asserted that the examiner incorrectly noted that he reported the onset of his tinnitus two years prior to the examination, as he did not tell her that. Instead, as noted, the Veteran has reported that he distinctly recalls experiencing tinnitus on a regular basis during service and that his tinnitus has been an ongoing problem for many years since. See October 2019 VA Form 9. The Board has considered whether a remand is warranted in order to obtain an additional medical opinion that considers the Veteran's competent and credible statements regarding the onset and continued nature of his tinnitus; however, given that tinnitus is the type of condition that is capable of lay observation and the Veteran has provided competent and credible lay evidence establishing that his tinnitus began during service and has been manifest for many years since service, the Veteran's lay statements are considered probative evidence sufficient to support the grant of service connection. Indeed, the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Under these circumstances, the Board finds that the lay and medical evidence is at least in relative equipoise, i.e., evenly balanced, with respect to the issue of whether the Veteran's tinnitus was incurred during service as a result of his military noise exposure. Therefore, entitlement to service connection for tinnitus is warranted. 38 U.S.C. 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. In August 2018, the VA examiner opined that it is less likely than not that the Veteran's current hearing loss was caused by or a result of his military noise exposure, solely on the basis that, at separation from service, the Veteran's hearing was normal with thresholds too low for any significant threshold shift to have occurred since entrance to service. The examiner also noted there is no evidence of permanent auditory damage on active duty, as well as no report of decreased hearing in the claims file or at separation from service. The Board finds the August 2018 opinion is inadequate because the opinion is based primarily upon the absence of hearing loss disability as defined by VA at separation from service, without consideration of other relevant facts. Indeed, while the VA examiner noted the Veteran's hearing was normal at separation from service, the examiner did not address the Veteran's statements that he recalls his ears hurting during service after his exposure to loud noise at the firing range and has had problems with hearing loss for many years. Nor did the examiner adequately explain her statements that the Veteran's thresholds at separation were too low to represent any significant threshold shift since entrance to service. See Hensley v. Brown, 5 Vet. App. 155, 157-60 (1993) (holding that an examiner should consider and directly address any shifts of acuity thresholds in the service treatment records even if the shifts do not amount to a hearing loss disability under 38 C.F.R. § 3.385 and that 38 C.F.R. § 3.385 does not preclude service connection when hearing was within normal limits at separation from service if there is sufficient evidence to demonstrate a medical relationship between a veteran's in-service noise exposure and the current disability). Given the foregoing deficiencies, the Board finds a remand is needed for an additional medical opinion. The matters are REMANDED for the following action: Arrange for an appropriate VA clinician to review the Veteran's claims file and respond to the following: Is it at least as likely as not (50 percent or more probability) that the Veteran's current bilateral hearing loss (1) began during active service; (2) manifested within one year after separation from active service; OR (3) is otherwise related to service, including his conceded exposure to hazardous noise during service? The examiner must address each of the foregoing questions and, in answering the foregoing, the clinician must consider all lay and medical evidence of record. The clinician must specifically address the significance of the auditory thresholds demonstrated at separation from service, particularly given that the Veteran and his hearing acuity are deemed sound at entry to service. A complete, well-reasoned rationale must be provided for each opinion offered. The need for an additional examination is left to the discretion of the clinician chosen to provide the requested opinion. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Turnipseed, 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.