Citation Nr: 22018463 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 18-54 276 DATE: March 29, 2022 ORDER Service connection for tinnitus is granted. REMANDED Service connection for bilateral hearing loss is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, it is at least as likely as not that his tinnitus is related to service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1982 to September 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Tinnitus The issue of entitlement to compensation for tinnitus is reasonably raised by the record and is encompassed by the issue on appeal, entitlement to service connection for bilateral hearing loss. In this regard, the Veteran claimed entitlement to service connection for hearing loss related to acoustic trauma in service, and tinnitus is a symptom commonly associated with hearing loss. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Moreover, and as discussed below, the evidence shows that the Veteran's tinnitus is proximately due to acoustic trauma in service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence showing (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). During his November 2021 Board hearing, the Veteran testified that ringing in his ears began in service, after an artillery simulator went off near his head during basic training. He indicated that since then, he has experienced ringing in his ears. The Veteran has a current diagnosis of recurrent tinnitus as noted in a July VA examination. Furthermore, the AOJ noted that the Veteran's reported noise exposure is consistent with his military occupational specialty of military police. Therefore, the first and second elements of service connection are met. The relevant question at issue is whether the Veteran's tinnitus is related to service. The Board acknowledges the July 2015 VA examination report which found that an opinion could not be provided without resort to speculation. The examiner noted the Veteran's report that tinnitus began during basic training; however, he determined that he could not provide an opinion because no separation examination was of record. As no opinion was provided regarding the etiology of the Veteran's tinnitus, this examination has no probative value. Based on the evidence of record, including the Veteran's November 2021 testimony before the undersigned, the Board concludes that the Veteran has provided competent and credible evidence reflecting that he began experiencing symptoms of tinnitus in service and continued to experience such symptoms after service. While the Veteran's service treatment records do not show complaints of tinnitus in service, the Veteran is competent to report the symptoms of tinnitus. Tinnitus is one of the chronic diseases under 38 C.F.R. § 3.307 (a) for which service connection is available based on continuity of symptomatology. Tinnitus is an organic disease of the nervous system as enumerated condition under 38 C.F.R. § 3.309 (a). Therefore, based on the conceded in-service noise exposure, and the competent and credible lay evidence of in-service tinnitus, as well as continuity of symptomatology, service connection for tinnitus is warranted under 38 C.F.R. § 3.303 (b) and the claim is granted. REASONS FOR REMAND Bilateral hearing loss The Veteran contends that his bilateral hearing loss and tinnitus is caused by service. During the November 2021 Board hearing, he testified that his hearing loss and tinnitus began in service after an artillery simulator went off close to his head. The Board notes that with respect to claims for service connection for hearing loss, the United States Court of Appeals for Veterans Claims has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Service treatment records (STRs) include a pre-induction audiological examination in May 1982, and the pure tone thresholds, in decibels were as follows: HERTZ 1000 2000 3000 4000 6000 8000 RIGHT 5 5 20 35 45 / LEFT 0 15 20 35 20 / The May 1982 VA audiological examination shows that some hearing loss was found in the 4000 Hz ranges of the bilateral ears and in the 6000 Hz rang of the right ear. STRs also show that in December 1984, the Veteran complained of left ear pain and pressure and otitis media with Eustachian tube was diagnosed. No separation examination is of record. The Veteran was afforded a VA examination in July 2015. The pure tone thresholds, in decibels were as follows: HERTZ 1000 2000 3000 4000 Average Speech LEFT 30 75 85 90 70 64 RIGHT 25 90 85 85 71 56 The July 2015 VA examiner diagnosed bilateral hearing loss. However, the examiner opined that the Veteran's bilateral hearing loss was less likely than not caused by or the result of his military service stating, "Although he had a military occupation with a high probability of hazardous noise exposure, the Veteran showed no change in his hearing thresholds while he was in service." The examiner also noted that the Veteran had hearing loss prior to service which was not aggravated beyond its normal progression in military service. Acknowledging that no separation examination is in the record, the examiner determined that an opinion regarding the etiology of the Veteran's hearing loss would be speculative. Based on this examination, the RO issued the July 2015 rating decision denying service connection for bilateral hearing loss. Although the Veteran's entrance examination does show mild to moderate high frequency right ear hearing loss and mild high frequency left ear hearing loss, for a hearing defect to be noted at service entrance, it must meet the criteria of 38 C.F.R. § 3.385. See McKinney v. McDonald, 28 Vet. App. 15 (2016). The Veteran's hearing loss did not meet this criteria at entrance. Accordingly, the VA examiner did not provide an opinion using the correct legal standard and remand for a new VA examination is required. The Board finds the VA examiner's opinion is further insufficient for decision making purposes. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) (finding that if an opinion cannot be provided without resorting to speculation, then it must be clear whether this is due to a lack of knowledge among the medical community at large, or due to insufficient knowledge of the specific examiner). Here, the July 2015 VA examiner appears to rely on the absence of service treatment records, specifically a separation examination. Furthermore, the examiner's rationale for finding that there was no change in the Veteran's hearing thresholds while he was in service is unclear as the record does not contain a separation audiological examination (or any other in-service audiological examination) for comparison. Accordingly, a VA opinion regarding the etiology of the Veteran's hearing loss is necessary and remand is warranted. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Then, schedule the Veteran for a comprehensive audiology examination for the purpose of determining the etiology of his bilateral hearing loss. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the bilateral hearing loss had onset in, or is otherwise related to, active military service. The examination report must include a complete rationale for all opinions expressed. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hemphill, Athena 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.