Citation Nr: 21042721 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-63 123 DATE: July 13, 2021 ORDER Service connection for tinnitus is granted. REMANDED Entitlement to service connection for hearing loss is remanded. FINDING OF FACT It is at least as likely as not the Veteran's tinnitus developed during active service and/or within the first post-service year. CONCLUSION OF LAW The criteria for a grant of service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309; Fountain v. McDonald, 27 Vet. App. 258 (2015); Charles v. Principi, 16 Vet. App. 370 (2002). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1976 to March 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office. The Veteran had requested a videoconference hearing before a Veterans Law Judge of the Board as part of this appeal. Such a hearing was scheduled for July 2019, but the Veteran did not report for this hearing and no good cause has been shown for why he did not report. Therefore, his hearing request is deemed withdrawn. Entitlement to service connection for tinnitus Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The Veteran has indicated that he developed tinnitus due to in-service noise exposure, and provided details thereof. The Board notes that this account has been found to be consistent with the period his military occupational specialty (MOS) was that of a combat engineer, although the record reflects his latter period of service reflects his MOS was that of a recruiter. The Veteran's service treatment records do not include any findings of tinnitus while on active duty, and the first recorded medical evidence of such appears to be years after service. However, the Veteran's lay testimony is of particular importance in this regard as the determination as to whether service connection is warranted for tinnitus turns almost entirely on lay testimony. Tinnitus is, by definition "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." Dorland's Illustrated Medical Dictionary, 1914 (30th ed. 2003). Tinnitus is "subjective," as its existence is generally determined by whether or not the Veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). Thus, while service connection for tinnitus requires a medical diagnosis and a nexus relating the diagnosis to military service, lay testimony plays an unusually important role in making these determinations. The Board also notes that certain chronic diseases are subject to service connection on a presumptive basis when present to a compensable degree within the first post-service year, to include organic diseases of the nervous system. 38 C.F.R. §§ 3.307, 3.309(a). The United States Court of Appeals for Veterans Claims (Court) has held that 38 C.F.R. § 3.309(a) "includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an 'organic disease[] of the nervous system.'" The Court has also indicated that, as a chronic condition, tinnitus warrants consideration of the continuity of symptomatology provisions found at 38 C.F.R. § 3.303(b). Fountain v. McDonald, 27 Vet. App. 258 (2015). Here the Veteran reported constant tinnitus at a September 2016 VA examination that had been present for approximately 20 years. This report, and other evidence of record, indicates it was present either during service or within the first post-service year. The Board acknowledges that treatment records dated in August 2014 reflect the Veteran denied tinnitus at a VA audiology consultation. However, this appears inconsistent with other evidence of record to include the Veteran's October 2014 VA Form 21-526EZ, as well as the aforementioned report at the September 2016 VA examination. The Board also acknowledges that the September 2016 VA examination includes an opinion against the Veteran's tinnitus being etiologically linked to service. Nevertheless, the Board must find that this opinion is not in accord with the appropriate legal standard. In pertinent part, the examiner stated that etiology with active service could not be determined "cannot be determined with reasonable certainty..." The law mandates resolving all reasonable doubt in favor of the claimant, to include with respect to issues of service origin. 38 U.S.C. § 5107(b);38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). In Alemany v. Brown, 9 Vet. App. 518 (1996), the Court noted that in light of the benefit of the doubt provisions of 38 U.S.C. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology." Resolving all reasonably doubt in favor of the Veteran, the Board finds is at least as likely as not his tinnitus developed during active service and/or within the first post-service year. Therefore, service connection is warranted. REASONS FOR REMAND Entitlement to service connection for hearing loss is remanded. Specific to claims for service connection for hearing loss, impaired hearing is considered a "disability" for VA purposes only when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385. In this regard, the Court has indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Board notes that the Veteran's service treatment records do not contain audiometric findings which document a hearing loss disability in accord with 38 C.F.R. § 3.385, and the first competent medical evidence of such appears to be in August 2014 which is years after service. Further, there does not appear to be evidence of hearing loss in accord with Hensley, supra. Nevertheless, the Board must also note that no audiometric findings are of record after November 1998, and no separation examination report is of record. In light of the foregoing, the Board finds that competent medical evidence is required to determine whether the Veteran's current hearing loss disability was incurred in or otherwise the result of his active service. The Board acknowledges that the September 2016 VA examination included an opinion against such a finding. However, the Veteran has criticized the adequacy of that examination to include in his December 2016 Form 9. For example, he stated he was never asked how he believed his conditions were related to service. As such, it indicates the examiner may not have adequately considered his lay testimony in this case. Further, while the examiner's opinion on the hearing loss was expressed in terms of "less likely than not," the Board is concerned about the fact it determined an incorrect standard was used for the tinnitus claim. As such, it calls into question whether such a standard was also applied for the hearing loss claim. In light of the foregoing, the Board finds that a remand is required to accord the Veteran a new examination and opinion to address the etiology of his hearing loss. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The matters are REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issue(s) on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for a VA audiology examination. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's hearing loss had its onset in, or is otherwise attributable to, his period of active service to include his account of noise exposure therein. (Continued on the next page) A complete medical rationale for all opinions expressed must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. R. Costello Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board John Kitlas, 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.