Citation Nr: 22018783 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 18-46 353 DATE: March 30, 2022 ORDER Service connection for tinnitus is granted. REMANDED Service connection for bilateral hearing loss is remanded. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's tinnitus began during active service or is otherwise related to his in-service noise exposure as an aerospace ground equipment repairman. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1963 to November 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2017 rating decision by a Department of Veterans Appeals (VA) Regional Office (RO). The Veteran testified a January 2022 Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. As a preliminary matter, the Board notes that a private medical opinion was submitted by the Veteran in March 2022, after the August 2018 Statement of the Case. Although this evidence has not yet been considered by the agency of original jurisdiction (AOJ), as the Veteran filed his substantive appeal after February 2013, waiver is presumed and the Board may proceed below. 38 U.S.C. § 7105(e). 1. Service connection for tinnitus is granted. The Veteran seeks service connection for tinnitus, which he reports began during service in 1966 with a gradual onset. See May 2017 Statement in Support of Claim; August 2017 VA Examination. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires competent VA w/s hepatitis w/s risk evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service; and (3) a causal relationship or nexus between the current disability and any injury or disease during service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may also be established for "chronic diseases" as listed in 38 C.F.R. § 3.309(a) where evidence shows a diagnosis manifest to a compensable degree within the presumptive period after service, or a continuity of symptomatology since service. See 38 C.F.R. §§ 3.303(b), 3.307; Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). Because hearing loss and tinnitus are each considered a "chronic disease" as "other organic diseases of the nervous system" under 38 C.F.R. § 3.309(a), the Board looks to whether service connection is warranted on a presumptive or direct basis. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Initially, the Board recognizes that the Veteran had a high probability of in-service noise exposure in his military occupational specialty (MOS) as an aerospace ground equipment repairman. See Duty MOS Noise Exposure Listing, M21-1, V.iii.2.B.1.b. Service treatment records show no complaints of tinnitus during service, and he denied hearing loss and ear trouble in his September 1967 Report of Medical History; however, when converted to the ISO-ANSI standard, his separation audiogram reveals a threshold shift in his left ear hearing from entrance to separation. By way of background, when considering audiograms conducted between January 1, 1967 and December 31, 1970, where the standard used is not clearly indicated, as is the case here, the audiogram results must be analyzed using both the outdated American Standards Association (ASA) units and current International Standards Organization-American National Standards Institute (ISO-ANSI) units. Where necessary to facilitate data comparison for VA purposes, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data as follows: Hertz 250 500 1000 2000 3000 4000 6000 8000 add 15 15 10 10 10 5 10 10 In this case, the Veteran's separation audiogram results, without conversion, as to the right ear, were: 0 dB (500 Hz), -5 dB (1000 Hz), 0 dB (2000 Hz), 0 dB (3000 Hz), 10 dB (4000 Hz), 0 dB (6000 Hz); and as to the left ear, were: -5 dB (500 Hz), -5 dB (1000 Hz), 0 dB (2000 Hz), 0 dB (3000 Hz), 10 dB (4000 Hz), 0 dB (6000 Hz). His separation audiogram results, after conversion to the current ISO-ANSI standard, as to the right ear, were: 15 dB (500 Hz), 5 dB (1000 Hz), 10 dB (2000 Hz), 10 dB (3000 Hz), 15 dB (4000 Hz), 10 dB (6000 Hz); and as to the left ear, were: 10 dB (500 Hz), 5 dB (1000 Hz), 10 dB (2000 Hz), 10 dB (3000 Hz), 15 dB (4000 Hz), 10 dB (6000 Hz). With the above conversion to the ISO-ANSI standard, the Veteran experienced a shift in left ear hearing acuity at 500 Hz and 2000 Hz between entrance and separation. Further, service treatment records contain two undated graphical audiograms. Interpretation of a graphical audiogram is a finding of fact, to be made by the Board in the first instance. See Kelly v. Brown, 7 Vet. App. 471 (1995). If the Board is unable to interpret the graphical audiogram due to unclear results or several possible interpretations, then the Board must remand the results for translation by an appropriate specialist. See Savage v. Shinseki, 24 Vet. App. 259, 270 (2011); see Kelly, 7 Vet. App. at 471. The first undated audiogram contains results that align with the Veteran's entrance audiogram and is contained between the two pages of his entrance examination in his service treatment records; as such, the Board assumes that this audiogram is merely the graphical version of the entrance audiogram. The second undated audiogram, however, contains results with several possible interpretations, and is further complicated by the possibility that it was conducted after January 1967 and consequently must be analyzed under both the ASA and ISO-ANSI standards. Nonetheless, as this claim may be granted in full based on the current evidence of record, remand is not necessary to await interpretation of the second undated audiogram by an appropriate specialist. The Veteran's post-service treatment records, which are limited, include complaints of tinnitus, with the Veteran reporting an onset of continuous tinnitus around 2002 or 2003. See October 2011 Telephone Care Note; December 2011 Audiology Consult. Per a September 2018 Correspondence, he stated that when he returned to the barracks each night during service, the ringing would always be there, and he accepted it, rather than reporting it, so as not be identified as not fit for duty. He further indicated that he reported the ringing in his ears at post-service annual physicals as it grew worse, and later sought treatment with VA. The Board finds his explanation for not reporting tinnitus sooner to be generally plausible and credible. The Veteran was afforded a VA examination assessing the nature and etiology of his tinnitus in August 2017. The examiner reviewed the Veteran's claims file and opined that the tinnitus was less likely than not caused by or a result of military noise exposure. In making this opinion, the examiner stated that in the absence of objectively verifiable noise injury, the association between claimed tinnitus and noise exposure cannot be assumed to exist. The examiner specifically relied on the Veteran's service treatment records being silent for complaints of hearing loss at separation, the Veteran being unable to recall one specific incident as initiating his reported head noises, and the fact that tinnitus may develop in response to factors other than noise exposure. The Veteran obtained a private opinion as to the etiology of his tinnitus in January 2022. The private examiner, Dr. R.C., stated that he evaluated the Veteran in January 2021 for complaints of constant tinnitus and bilateral hearing loss, reviewed the Veteran's military records, and performed a completed examination of the Veteran. Dr. R.C. summarized the nature of the Veteran's service as a flight line mechanic, noting that he was exposed to jet engines, repair equipment, and tools while working unprotected. Dr. R.C. ultimately concluded that the Veteran's past military work, associated with significant loud noise exposure, more likely than not aggravated the Veteran's hearing loss and tinnitus. Dr. R.C. did not provide further rationale in support of this conclusion. The Board finds that the evidence is in equipoise. While service treatment records do not document tinnitus, the Board finds that the Veteran's report of in-service onset is credible and consistent with his high probability of noise exposure during service as an aerospace ground equipment repairman. Significantly, a layperson is capable of observing tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Board further finds that both the August 2017 VA opinion and January 2022 private opinion are entitled to limited probative weight. Specifically, as the August 2017 VA examiner relied on the Veteran's hearing being normal at separation without considering the shift between entrance and separation (when the left ear audiogram is converting to ISO-ANSI standard) and relied on the Veteran's inability to recall a specific incident as the initiating source of his tinnitus, despite also recognizing that tinnitus may occur following long-term exposure to continuous noise, the Board affords the opinion little probative weight. See Ardison v. Brown, 6 Vet. App. 405, 407 (1994); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Further, as the January 2022 private examiner did not provide any rationale in support of his opinion, the Board also affords this opinion little probative weight. See Stefl, 21 Vet. App. at 124. Where the evidence is in relative equipoise, the claimant prevails; as such, entitlement to service connection for tinnitus is warranted, and the claim is granted. See Lynch v. McDonough, 999 F.3d 1391, 1395 (Fed. Cir. 2021); 38 U.S.C. §§ 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS FOR REMAND 1. Service connection for bilateral hearing loss is remanded. As discussed in part above, the Veteran was afforded a VA examination assessing the nature and etiology of his claimed bilateral hearing loss in August 2017. At the examination, he was diagnosed with bilateral hearing loss, but only left ear hearing loss for VA purposes. The examiner ultimately opined that his bilateral hearing loss was less likely than not caused by or a result of an event in military service. In making this opinion, the examiner specifically relied on the premise that there was no significant threshold shift at any frequency during service and the Veteran's hearing being normal at separation, and quoted a 2005 Institute of Medicine (IOM) report as to noise and military service. The Board finds the August 2017 VA examination and opinion inadequate for multiple reasons. First, the VA examiner possibly relied on an inaccurate factual premisethat there was no significant threshold shift at any frequency during the Veteran's service; this may be inaccurate, as the Veteran's service treatment records document a threshold shift in left ear hearing acuity at 500 Hz and 2000 Hz between entrance and separation where the separation audiogram is converted to the ISO-ANSI standard. Second, the VA examiner improperly relied on the Veteran's hearing being normal at separation, without any discussion of his high probability of in-service noise exposure and his lack of post-service noise exposure. See Hensley v. Brown, 5 Vet. App. 155 (1993) (holding that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service). Third, the VA examiner relied on the 2005 IOM report to support her opinion without addressing a qualifying finding in the reportthat there is insufficient evidence to determine whether permanent noise-induced hearing loss can develop later. See McCray v. Wilkie, 31 Vet. App. 243 (2019) ("a medical text's qualifying or contradictory aspects may affect the probative value and adequacy of any ensuing medical opinion that relies on the text"). Based on these deficiencies, the Board finds that remand is necessary to obtain an adequate opinion. As the Veteran testified that his hearing loss had worsened since the August 2017 VA examination at the January 2022 Board hearing, and the record does not currently demonstrate right ear hearing loss for VA purposes, he should also be afforded a new examination. As the service treatment records include an undated audiogram containing results with several possible interpretations, which does not appear to align with either the entrance or separation audiograms, the RO should obtain an interpretation of the results from a certified audiologist. See Kelly, 7 Vet. App. at 474. Separately, the Board notes that the claims file contains VA treatment records throughout the appeal period, including records from an audiology visit in December 2011 referencing a VA audiogram that is not associated with the claims file. See December 2011 Audiology Consult. On remand, the RO should obtain this missing VA audiogram (as well as any other audiograms referenced in subsequently obtained VA treatment records) and associate it the claims file prior to scheduling the new VA examination. Finally, VA treatment records and the January 2022 Board hearing testimony document that the Veteran received treatment from private primary care providers during the appeal period, which he has identified as Dr. R.S., Dr. B.P., Dr. D., and Dr. B. See June 2013 Geriatric Clinic Note; June 2017 Primary Care Nursing Note; June 2017 Ambulatory Care Note; January 2022 Board Hearing Transcript. At January 2022 Board hearing, the Veteran testified that he reported hearing issues at annual physicals since service and that he saw an ear, nose, throat (ENT) doctor when living in California. As the Veteran has identified outstanding and potentially relevant private treatment records that are not currently associated with the claims file, on remand, the RO should also request authorization to obtain these records prior to scheduling the new VA examination. The matters are REMANDED for the following action: 1. Obtain the Veteran's Palo Alto VAMC treatment records from July 2013 to present and his Orlando VAMC treatment records from June 2017 to present. 2. Obtain the December 2011 VA audiograms, as referenced in the Veteran's VA treatment records. They may be located in VistA imaging. Document all attempts to obtain these audiograms, including any negative responses, and notify the Veteran and his representative accordingly. 3. Ask the Veteran to complete a release authorizing VA to request any private records documenting treatment for hearing loss, to include from Dr. R.S., Dr. B., Dr. B.P., and Dr. D., or any other private providers that he identifies. Document all attempts to obtain these records, including any negative responses, and notify the Veteran and his representative accordingly. 4. DO NOT PROCEED WITH THE FOLLOWING until the above development has been completed, to the extent possible. 5. Schedule the Veteran a new VA examination to assess the nature and etiology of his claimed bilateral hearing loss. Because the Veteran's separation examination was conducted between January 1967 and December 1970 and does not indicate which standard was used, the results of his separation audiogram must be analyzed under both ASA and ISO-ANSI standards. If the right ear separation audiogram was performed under the ASA standard, the results after conversion to the ISO-ANSI standard are as follows: 15 dB (500 Hz); 5 dB (1000 Hz); 10 dB (2000 Hz); 10 dB (3000 Hz); 15 dB (4000 Hz); 10 dB (6000 Hz). If the left ear separation audiogram was performed under the ASA standard, the results after conversion to the ISO-ANSI standard are as follows: 10 dB (500 Hz); 5 dB (1000 Hz); 10 dB (2000 Hz); 10 dB (3000 Hz); 15 dB (4000 Hz); 10 dB (6000 Hz). After a review of the claims file, specifically including the in-service and post-service audiograms, the examiner should respond to the following: (a.) Provide an interpretation of the Veteran's undated in-service graphical audiogram. See STRs with receipt date of 6/19/17 at page 33 of 34. (b.) If updated treatment records and/or examination reveal right ear hearing loss for VA purposes, is it at least as likely as not that the Veteran's right ear hearing loss is related to his active service, to include his high probability of in-service noise exposure in his military occupational specialty as an aerospace ground equipment repairman? (c.) Is it at least as likely as not that the Veteran's left ear hearing loss is related to his active service, to include his high probability of in-service noise exposure in his military occupational specialty as an aerospace ground equipment repairman? The opinion must be accompanied by a rationale consistent with the evidence of record and must specifically address the left ear threshold shift between the entrance and separation audiograms after conversion to the ISO-ANSI standard. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is required. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Tierno 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.