Citation Nr: 22014048 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 19-19 345 DATE: March 11, 2022 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT The Veteran's tinnitus had its initial onset in service and has continued since separation from service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Marine Corps from March 1962 to October 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision issued by a Department of Veteran's Affairs (VA) Regional Office (RO) that denied service connection for tinnitus and bilateral hearing loss. The Veteran appeared before the undersigned Veterans Law Judge at a Board hearing in December 2021. The transcript is of record. Entitlement to service connection for tinnitus Generally, to establish service connection, the evidence must show (1) the existence of a present 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may be granted for any injury or disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted on a presumptive basis for certain chronic diseases if the disability manifested to a compensable degree within the applicable presumptive period following a veteran's separation from active service. 38 U.S.C. §§ 1110, 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Tinnitus is considered organic diseases of the nervous system, the presumptive period for which is one year. 38 C.F.R. § 3.307(a)(3); Fountain v. Shinseki, 27 Vet. App. 258, 271-72 (2015). Service connection for a recognized chronic disease can also be established through continuity of symptomology. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran reported in his March 2019 Notice of Disagreement that his tinnitus began in service when he experienced ringing in his ears. The Veteran reported that he did not seek medical attention in-service because he did not know that tinnitus was a disability at that time. At the December 2021 Board hearing, the Veteran testified that his tinnitus has persisted since service. Current diagnosis of tinnitus is established by way of an April 2018 examination. The Veteran has also presented competent evidence with respect to experiencing tinnitus in and since service. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). There is likewise no basis for questioning the Veteran's credibility with respect to his experiencing tinnitus since service. All three elements of Shedden are met. The criteria for service connection are met, and entitlement to service connection for tinnitus is granted. See 38 C.F.R. §§ 3.303, 3.307, 3.309. The Board recognizes the April 2018 VA examiner's opinion against service connection. This opinion was based on lack of reported tinnitus in-service, or upon separation; however, the examiner did not address the Veteran's lay statements that tinnitus began in service and that he did not seek treatment for the condition because he did not know that it was a disability. Such lowers the probative value of the opinion. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends that service connection is warranted for his bilateral hearing loss. During his December 2021 Board hearing, the Veteran testified that he first noticed his hearing loss during service in 1965 or 1966. He explained that he was a weapons tech on F-8 jets while he served aboard the U.S.S. Saratoga. In his March 2019 Notice of Disagreement, he explained that while aboard the U.S.S. Saratoga he worked with ordnance and his responsibilities included testing, firing, and scoping/aligning. Alternatively, the Veteran asserts that his left ear hearing loss is related to his service connected perforated left eardrum. See December 2021 Board hearing testimony. The Veteran was afforded a VA examination in April 2018. The examiner found that the Veteran had bilateral sensorineural hearing loss. The examiner opined that the Veteran's hearing loss was less likely than not incurred in or caused by hazardous noise exposure during service. The examiner noted that the Veteran's March 1962 baseline hearing exam and his separation exam both showed normal hearing in both ears from 500 to 6000 Hertz (Hz). The examiner further noted that the separation exam also showed no significant threshold shifts in either ear. She stated that there was no objective evidence of acoustic trauma in either ear. The opinion is inadequate. The examiner did not address the Veteran's lay report that he first noticed a loss of hearing while in service. In that regard, the Board notes that the absence of in-service evidence of a hearing disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a claim. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The examiner also seemingly discounted the Veteran's report of noise exposure while working with F-8 jets and ordnance aboard the U.S.S. Saratoga. Finally, as indicated, the Veteran argues that there is a relationship between his left ear hearing loss and service-connected perforated left eardrum. An addendum opinion is needed for these reasons. As mentioned above, the Veteran testified that he was exposed to hazardous noise while serving aboard the U.S.S. Saratoga as a weapons tech. The claims file does not contain any records showing that the Veteran had service aboard the U.S.S. Saratoga. While on remand, the Agency of Original Jurisdiction should attempt to obtain any missing military personnel records and confirm whether the Veteran served as a weapons tech aboard the U.S.S. Saratoga. The matter is REMANDED for the following action: 1. Attempt to verify the Veteran's period of service and MOS aboard the U.S.S. Saratoga. If more details are needed, contact the Veteran to request the information. 2. After the above development has been completed, forward the claims file and a copy of this remand to an appropriate examiner for completion of an addendum opinion for the Veteran's bilateral hearing loss. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. Following a review of the record, the examiner is asked to: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's current bilateral hearing loss had its initial onset in service or is otherwise attributable to his active service to include to his exposure to hazardous noise in service? In providing the requested opinion, the examiner is asked to consider and address the Veteran's assertions that he was exposed to hazardous noise while working as a weapons tech on F-8 jets aboard the U.S.S. Saratoga. It should be noted that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss when there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements of a hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. The examiner should discuss the medically known or theoretical causes of hearing loss and describe how hearing loss which results from noise exposure generally presents or develops in most cases, as distinguished from how hearing loss develops from other causes, in determining the likelihood that current hearing loss was caused by noise exposure in service as opposed to some other cause. (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's current left ear hearing loss is proximately due to or the result of his service-connected perforated left eardrum? The examiner is specifically asked to consider the July 1962 service treatment record that the Veteran was having difficulty hearing out of his left ear after it was hit during a fight. (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran's current left ear hearing loss underwent an incremental increased in disability, regardless of its permanence, due to his service-connected perforated left eardrum? A full rationale must be provided for any opinion offered and a thorough explanation would be helpful for the Board. Reference to findings from identified studies is preferred over reference to medical literature in the abstract. If the examiner relies on his or her medical experience as a rationale, it is appropriate to identify the specifics such as an estimate of the number of patients the examiner has seen with similar conditions, the time the examiner had been practicing in the field, or any relevant specialized education or training experiences that go beyond the examiner's degree or accreditation. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and he/she must provide the reasons why an opinion would require speculation. The examiner must indicate whether there is any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fairlie, 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.