Citation Nr: 22037101 Decision Date: 06/28/22 Archive Date: 06/28/22 DOCKET NO. 18-31 540 DATE: June 28, 2022 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for residuals of a traumatic brain injury (TBI) is remanded. Entitlement to service connection for headaches as secondary to residuals of a TBI is remanded. Entitlement to service connection for a sleep disability as secondary to tinnitus is remanded. FINDING OF FACT The Veteran's tinnitus is the result of exposure to acoustic trauma during his active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1968 to September 1970. This matter is on appeal from a May 2014 rating decision. In October 2021, he testified at a Board hearing before the undersigned Acting Veterans Law Judge. A transcript of the proceeding is in the record. Entitlement to service connection for tinnitus The Veteran contends that he began experiencing symptoms of tinnitus as a result of noise exposure during active duty service. The Board concludes that the Veteran has tinnitus that is related to conceded noise exposure in service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). In his April 2013 claim, the Veteran reported the onset of his tinnitus symptoms as occurring during his active duty service. His DD-214 shows that he served as an armor crewman, and his service personnel records show he was trained in the handling of multiple weapons, including the M-14, the grenade and the pistol. Military noise exposure is therefore conceded. At his April 2014 VA examination, the Veteran reported first experiencing symptoms of tinnitus while he was on tanks firing large ammunition in the military. He reported experiencing recurrent symptoms. The examiner did not provide any opinion on whether the Veteran's tinnitus was the result of his in-service noise exposure. At his October 2021 Board hearing, the Veteran testified that he began experiencing symptoms of ringing in his hears during active duty service, and these symptoms have continued on a regular basis since his service. The Board finds the Veteran credible regarding his claim that he experiences symptoms of tinnitus. See Charles, 16 Vet. App. at 370. He has attributed the tinnitus to noise exposure in service, which is conceded. He has reported the onset of his symptoms as occurring in January 1969 during his active duty service and coincident with his exposure to tank gun fire noises as part of his duties in the military. The Board finds that the record reasonably supports entitlement of the Veteran to service connection for tinnitus based on the Veteran's own testimony and the available evidence of record. His assertion that it began during service is consistent with the circumstances of his service. Thus, affording the Veteran the benefit of the doubt, entitlement to service connection for tinnitus is granted. 38 U.S.C. § 5107(b). REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran asserts that he developed bilateral hearing loss as a result of acoustic trauma during service. In April 2014, he underwent a VA examination where he was diagnosed with bilateral hearing loss. The examiner concluded that she could not provide an opinion on the etiology of the Veteran's hearing loss without resorting to speculation. In support of this conclusion, the examiner stated that the audiogram reports in the Veteran's service treatment records at entrance and exit from service showed improvements in hearing. The VA examiner concluded this was unlikely as permanent sensorineural hearing loss tends to remain stable or gradually decreases and does not improve over time. The examiner stated that she suspected that one or both of the examinations conducted during service were not a valid measure of the Veteran's hearing at the time the examinations were taken. Without accurate threshold measures of the Veteran's hearing in service, the examiner stated it was not possible to give a medical opinion as to whether his presently diagnosed hearing loss is caused by or a result of an event in service. However, the April 2014 VA examiner failed to explain why she could not render an opinion on the etiology of the Veteran's hearing loss based on his lay statements concerning the onset and progression of his symptoms, as well as the circumstances of his service, which shows he was exposed to acoustic trauma. An opinion based on the absence of treatment records without consideration of a Veteran's competent reports is inadequate. Dalton v. Nicholson, 21 Vet. App. 23 (2007). As a result, remand is needed to obtain a more thoroughly reasoned addendum opinion 2. Entitlement to service connection for residuals of a TBI is remanded. 3. Entitlement to service connection for headaches as secondary to residuals of a TBI is remanded. 4. Entitlement to service connection for a sleep disability as secondary to tinnitus is remanded. The Veteran asserts that he suffers from residuals of a TBI, headaches, and a sleep disability. The available medical evidence of record does not show he has been diagnosed with any of his three claimed disabilities. However, the most recent available VA treatment records are dated in February 2018. Further, the Veteran reported at his Board hearing that he receives medical treatment from a private doctor. As such, remand is needed to obtain any outstanding VA or private treatment records before the Board can adjudicate the merits of the above claims. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records dated from February 2018 to the present and associate them with the Veteran's claims folder. 2. Ask the Veteran to complete a VA Form 21-4142 for any relevant private medical provider. Make two requests for the authorized records from all identified private medical providers unless it is clear after the first request that a second request would be futile. 3. Obtain an addendum opinion from an appropriate clinician on the nature and likely etiology of the Veteran's diagnosed bilateral hearing loss. Copies of all pertinent records must be made available to the examiner for review. If the examiner determines that an opinion cannot be provided without an examination, (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) one should be scheduled. Following review of the claims file, the clinician should answer the following question: Is it at least as likely as not that the Veteran's bilateral hearing loss had its onset during service or is otherwise related to acoustic trauma during active duty service? (Continued on the next page) The examiner is asked to provide a thorough rationale for all opinions provided that consider the medical evidence of record, as well as the Veteran's contentions concerning the onset and progression of his symptoms. If an opinion cannot be provided without resorting to speculation, the examiner should explain the reason why a complete opinion cannot be provided. T. V. CASEY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Komperda, 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.