Citation Nr: 22017119 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 17-52 296 DATE: March 24, 2022 REMANDED Entitlement to service connection for bilateral hearing loss disability is remanded. Entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran, who is the appellant, had active service from October 1983 to October 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Waco, Texas. In June 2018, the Veteran attempted to opt into the Appeals Modernization Act (AMA) via the Rapid Appeals Modernization Program (RAMP) but his RAMP election was not accepted by the RO, so the case remains in the legacy system. The Veteran appeared at a hearing before the undersigned Veterans Law Judge in November 2021. A transcript of the hearing is of record. The Veteran maintains that his current loss and tinnitus are a result of his exposure to noise in service. He has also expressed his belief that his current tinnitus is related to his hearing loss that he claims started in service or in the alternative is caused or aggravated by his hearing loss. The Board notes that the Veteran's MOS in service was a field artillery batteryman. At his hearing, the Veteran testified in detail as to the noise exposure experienced in service with no ear protection. The Veteran also noted having little to no noise exposure following service. The Veteran further expressed concern about the understanding of the examiner as to the intensity of the noise generated by the artillery he was exposed to inservice, including the howitzer guns. The Board observes that the Veteran was afforded a VA examination in October 2015. At that time, diagnoses of bilateral mixed hearing loss and tinnitus were rendered. The examiner noted that the Veteran had no noise exposure prior to service; had noise exposure in the military from Howitzers, rifles, trucks, mortars field training, and helicopters, not using ear protection all the time; and had noise exposure following service as a mechanic. Following examination, the examiner opined that it was less likely than not that the Veteran had hearing loss caused by or the result of an event in military service. She noted that there were no significant changes in hearing sensitivity documented in the medical records when comparing audiogram from 12/21/1982 to most recent service audiogram 09/29/1986. The examiner also opined that it was less likely than not that the Veteran's tinnitus was caused by or a result of military noise exposure as the Veteran reported that his tinnitus began 4-5 years ago and he separated from service in 1986. As to the above opinions, the Board notes that the Veteran has indicated that he has hearing loss resulting from his noise exposure in service and that it has continued to the present day. The examiner did not address the contentions of the Veteran that his hearing loss was related to his period of service and the duties that he performed in service and that he had had hearing problems since service. In accordance with Dalton v. Nicholson, 21 Vet. App. 23 (2007), the examiner must acknowledge and discuss the Veteran's assertions that he experienced hearing loss in service which had continued to the present. The Veteran also expressed his belief that his current tinnitus was caused or aggravated by his hearing loss. While the examiner indicated that the Veteran's tinnitus was not related to his period of service, she did not address whether the Veteran's hearing loss caused or aggravated the Veteran's tinnitus. The Board further observes that the VA examiner found that the Veteran had a hearing loss which preexisted service and was not aggravated by service. The Board observes that in McKinney, the United States Court of Appeals for Veterans Claims (Court) addressed when hearing loss noted on an enlistment examination constituted a preexisting disability for compensation purposes. McKinney v. McDonald, 28 Vet. App. 15, 18-19 (2019). The Court held that when the level of hearing loss noted on an enlistment examination did not meet VA's definition of a hearing disability under 38 C.F.R. § 3.385, a claimant was entitled to the presumption of soundness. Id. at 28. The Veteran did not meet the criteria for hearing loss for VA rating purposes at entrance; thus, he was entitled to the presumption of soundness. Given the foregoing, additional development, in the form of a new VA examination, is warranted. The matters are REMANDED for the following action: Schedule the Veteran for a VA audiological evaluation to determine the nature and etiology of any current hearing loss and tinnitus. All indicated tests and studies are to be performed and all findings are to be reported in detail. The claims folder must be made available for review and the examiner should note that the claims folder has been reviewed. The examiner is requested to render the following opinions: Is it at least as likely as not (50 percent probability or greater) that the Veteran's current hearing loss had its onset in service or is otherwise related to service? Is it at least as likely as not (50 percent probability or greater) that the Veteran's current tinnitus, if found, is related to his period of service? If not is it at least as likely as not (50 percent probability or greater) that the Veteran's tinnitus is caused by hearing loss? If not, is it at least as likely as not (50 percent probability or greater) that the Veteran's tinnitus is aggravated by his hearing loss? When rendering the above opinions, the examiner must address and discuss the Veteran's MOS of artillery batteryman and the claims of inservice noise exposure. In providing the above opinion, the VA examiner must also address and discuss and the Veteran's acoustic noise exposure in service and his statements regarding the onset and continuity of symptomatology since service. (Continued on the next page) When rendering the above opinions, the examiner must also note that the Veteran was presumed to be sound at service entrance with regard to hearing loss and tinnitus. All opinions expressed must be accompanied by a complete rationale. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. S. Kelly, 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.