Citation Nr: 21031788 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 19-33 976 DATE: May 24, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss had its onset during active service. 2. The Veteran's tinnitus had its onset during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1964 to November 1964, with additional service in the Army Reserve until July 1970. This matter comes before the Board of Veterans' Appeals (Board) from a September 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Veteran testified before the undersigned Veterans Law Judge at a virtual Board hearing. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 1. Entitlement to service connection for bilateral hearing loss is granted. 2. Entitlement to service connection for tinnitus is granted. The Veteran asserts that his hearing loss and tinnitus began during active service. See April 2021 Correspondence; April 2018 Statement in Support of Claim; April 2018 VA Form 21-526EZ. The Board agrees. With respect to the first element of service connection for hearing loss, a current disability, the July 2018 C&P audiology examination reveals the Veteran has a diagnosis of bilateral sensorineural hearing loss that meets the criteria of 38 C.F.R. § 3.385. Specifically, the examination revealed speech discrimination scores (SDS) less than 94 percent in both ears and auditory thresholds in the frequencies of 3000 and 4000 Hertz greater than 40 decibels. See id. Thus, the first element of service connection is met with respect to hearing loss. With respect to the first element of service connection for tinnitus, tinnitus is "a noise in the ear, such as ringing, buzzing, roaring, or clicking." See Dorland's Illustrated Medical Dictionary 1956 (31st ed. 2007). Because of its inherently subjective nature, a layperson such as the Veteran, is considered competent to report the observable manifestations of tinnitus. See Charles v. Principi, 16 Vet. App. 370 (2002) (holding that tinnitus is subjective and the kind of condition lay testimony is competent to describe). In this regard, the Veteran has competently and credibly reported experiencing tinnitus. See Tr. 7-8; April 2021 Correspondence; August 2019 private audiology report; July 2018 C&P audiology examination. Additionally, an August 2019 private audiology report states that the Veteran "experiences clinically significant tinnitus." Thus, the first element with respect to service connection for tinnitus is met. With respect to the second element of service connection, in-service incurrence, the Veteran has consistently related his hearing loss and tinnitus to hazardous noise exposure from gunfire, grenades, and dynamite blasts during Army basic training. See Tr. 7-8; April 2021 Correspondence; August 2019 private audiology record; July 2018 C&P audiology examination. The Veteran also provided photographs from his basic training depicting him on the firing range and training in the proximity of dynamite and grenade blasts. See Tr. 4-5, 8, 11-12; April 2021 photographic evidence submission. Additionally, in a September 2019 letter, the Veteran's spouse stated that he reported to her during basic training that he had ringing in his ears. A September 2019 lay statement from a coworker indicates that in the 1970s the Veteran reported to this coworker that his tinnitus began during active service. Based on the Veteran's competent and credible reports of hazardous noise exposure during basic training, as well as additional substantiating evidence, acoustic trauma and tinnitus in service is conceded as consistent with the circumstances of his service. See 38 U.S.C. § 1154(a). Thus, the second element of service connection is also met. The first two elements of service connection having been met, this case turns on a causal link between the Veteran's disabilities and the in-service incurrence, otherwise known as a nexus. The record contains one negative and one positive etiology opinion; however, the Board finds the negative etiology opinion to be inadequate and non-probative. Specifically, the July 2018 C&P examiner opined that it was less likely than not that the Veteran's hearing loss and tinnitus were related to service because his separation audiogram was normal and his military occupational specialty (MOS) of clerk typist had a low probability of hazardous noise exposure. These are inadequate bases on which to support an unfavorable medical opinion because the examiner failed to consider the possibility of delayed-onset hearing loss and failed to consider the hazardous noise exposure and accompanying tinnitus incurred during basic training that the Veteran would have experienced regardless of his MOS. On the other hand, an August 2019 private audiology report states that "it is more likely than not that the noise exposure [the Veteran] experienced during his Army training contributed to his hearing loss and tinnitus." The report further explains that tinnitus can be caused by "outer hair cell damage . . . exacerbated by noise exposure" and that studies have shown that "loud and/or repeated noise exposure can cause hearing loss, outer hair cell damage, and tinnitus." The Board finds this favorable etiology opinion to be probative in light of the thoroughness of the examination and the evidence-based rationale to support the opinion drawing on the Veteran's military and medical history as well as research studies. In sum, the evidence of record establishes that the Veteran has a current diagnosis of bilateral hearing loss that meets the criteria of 38 C.F.R. § 3.385. The record additionally contains competent and credible reports of tinnitus and VA and private audiology examinations documenting a diagnosis of tinnitus. Probative lay evidence of record consistent with the circumstances of the Veteran's service also establishes that he was exposed to hazardous noise during basic training and incurred acoustic trauma as a result. Lastly, the record contains an inadequate negative nexus opinion and a probative positive opinion linking his hearing loss and tinnitus to the hazardous noise exposure incurred during basic training. Thus, all elements of service connection for bilateral hearing loss and tinnitus are established and the benefits sought on appeal are granted. REASONS FOR REMAND 3. Entitlement to service connection for a lumbar spine disability is remanded. The Veteran has related his lumbar spine disability to the cumulative impact of physical labor performed during active service. See April 2021 Correspondence; September 2019 Lay Statement; April 2018 Statement in Support of Claim; April 2018 VA Form 21-526EZ. The July 2018 C&P examiner provided a negative nexus opinion regarding the Veteran's lumbar disability, stating that "[a]lthough the Veteran's account is credible, I was unable to find any [records] concerning any back condition before 2000." Basing this negative opinion on the lack of treatment records, which the Veteran credibly testified are no longer available, renders the opinion inadequate and non-probative. See Tr. 7, 9. The examiner also did not discuss the credible lay evidence of record. Thus, remand is warranted to obtain an addendum opinion. Updated VA and private treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, secure outstanding relevant private treatment records. 3. Then obtain an addendum medical opinion from the same examiner who conducted the July 2018 C&P back examination, if available, or a new examiner, preferably a specialist, if unavailable. A new examination is not necessary unless otherwise indicated by the examiner. The entire claims file should be made available to the examiner. After a review of the claims file, the examiner is asked to opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's lumbar spine disability: (1) had its onset in or is otherwise related to his active service or (2) is related a cumulative impact injury during the totality of his Reserve service from July 1964 to July 1970. In addressing this question, the examiner must consider and discuss the following evidence: (a.) The Veteran's credible testimony that he frequently lifted heavy supplies in service, including 1,400 sheets, 700 pillows, 700 pillowcases, 700 blankets, cases of toilet paper, paper towels, and garbage cans, and had to lift them up over his head into the back of a high-bed truck and then unload the supplies from the truck. See Hearing transcript (Tr.) at 6. The Veteran also credibly testified about lifting, loading, and unloading audio/visual equipment for classrooms, such as overhead projectors, as well as large field tents. See Tr. 6-7. (b.) The Veteran's credible testimony that during basic training he frequently had to hike for at least 8 hours per day while wearing an 80-pound backpack and take cover in ditches during training. See Tr. 10. (c.) The Veteran's credible testimony that he slept on a 2-inch mat during basic training that did not provide good back support. See Tr. 17. (d.) The Veteran's credible testimony that he was thrown to the ground on his back anywhere from 50 to 100+ times during hand-to-hand combat training. See Tr. 6, 11. (e.) The Veteran's credible testimony that he has been seeing doctors for his back disability since 1968 and that doctors first discovered a bulging disc in his back in 1969-1970 and that he was sent to physical therapy. See Tr. 13. The Veteran also credibly testified that in 1975 a bulging disc at L3/L4 ruptured and he underwent an operation in January 1976 and then again in 1987 for another ruptured disc. See Tr. 7. (f.) The Veteran's credible testimony that he did deep-water therapy for his back for 23 years. See Tr. 14. (g.) The Veteran's spouse's credible report that in 1964 he told her his back hurt from the long days hiking in full gear and that he has been seeing doctors for his back problems since the 1970s. See September 2019 Lay Statement. (h.) A statement from a former coworker of the Veteran credibly reporting the Veteran's back problems and back treatment. See September 2019 Lay Statement. (i.) The Veteran's other consistent and credible reports of his back disability in an April 2021 Correspondence, September 2019 Statement, and April 2018 Statement in Support of Claim. The examiner must accept and concede all statements and evidence identified above in paragraphs (a) through (i) as true, even despite the absence of "objective documentation." In other words, the Board has found the evidence identified above in paragraphs (a) through (i) to be credible and probative despite the absence of corroborating medical documentation. As such, the examiner must assume this evidence as true. Basing a negative nexus opinion on the absence of documentation or the failure to concede the veracity of this evidence will render the opinion inadequate and the opinion will be returned for another addendum. The examiner is further asked to consider the cumulative impact of all the physical labor performed in service as discussed in paragraphs (a) through (i) and opine whether a nexus to service is medically plausible given that cumulative impact. A complete rationale should be given for all opinions and conclusions expressed. If unable to opine without resorting to speculation, please provide a basis for reaching this conclusion. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. deBruyn, 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.