Citation Nr: 22040138 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 18-28 451A DATE: July 13, 2022 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. FINDING OF FACT The evidence supports a finding that tinnitus is related to in-service noise exposure. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1990 to April 1990. In January 2022, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. 1. Entitlement to service connection for tinnitus. The Veteran contends his tinnitus is the result of hazardous noise exposure in service. The Veteran testified that in service he worked as a tank commander who was responsible for all positions within the tank. They were not allowed to wear hearing protection while inside of the tanks. When the Veteran exited a tank to take photos, without wearing a helmet, six tanks began firing their cannons approximately six to 10 feet away from him. When the Veteran tried to return to the tank, he became dizzy and fell off hitting his head. He informed his supervisor that he felt off, but he was told to take Motrin without being able to see a doctor. The Board has carefully reviewed the evidence of record and finds that the evidence supports the grant of service connection for tinnitus. The reasons follow. As to evidence of a current disability, the Veteran credibly reported that he experiences tinnitus. Tinnitus is a disability capable of lay observation; therefore, the Board considers his statements sufficient evidence a disability. Therefore, the Veteran meets the first element of a service-connection claim. As to evidence of an in-service disease or injury, the Veteran has credibly reported an incident of acoustic trauma where he became dizzy after multiple tank cannons were fired in close proximity to his position. His testimony is consistent with the circumstances of his service. Thus, the Veteran meets the second element of a service-connection claim. As to evidence of a nexus between the current disability and service, the Board finds the evidence is at least in approximate balance as to this material element of the claim. In May 2015, the Veteran underwent a VA audiological examination. The examiner provided a negative nexus. The examiner opined that there was no significant in-service permanent shift in hearing thresholds beyond test variability and no in-service complaints of tinnitus. The current literature does not support a finding that tinnitus can result from an undiagnosed noise injury. The Board finds this opinion has no probative value because the examiner did not discuss the lack of post-service noise exposure and the Veteran's contention that he has experienced tinnitus since service. A medical opinion that does not adequately consider all the evidence of record, including the lay statements, is inadequate. In June 2018, Dr. F. P., the Veteran's primary physician, provided a positive nexus opinion. Dr. F. P. opined that after reviewed service treatment records and post-service treatment records, he concluded that tinnitus was most likely caused by service. The doctor stated that the Veteran's military occupation as tank commander, which also involved working as a driver and gunner, exposed him to repetitive, prolonged traumatic noise exposure. Though tinnitus is subjective, Dr. F. P. stated his symptoms are in line with a diagnosis of tinnitus. The Board finds Dr. F. P.'s medical opinion has high probative value because it is well-reasoned and based on medical principles and the circumstances of the Veteran's service. The Board has also considered the Veteran's credible lay statements of experiencing tinnitus since service. In December 2021, the Veteran's wife provided a statement detailing when the Veteran complained of loud ringing in his ears that began in service. Based upon the credible lay and medical evidence linking the Veteran's tinnitus to service, the Board finds tinnitus is a result of noise exposure in service. Accordingly, resolving any doubt in favor of the Veteran, service connection for tinnitus is granted. REASONS FOR REMAND 2. Entitlement to service connection for a bilateral hearing loss disability is remanded. The Veteran testified that he has experienced hearing loss since service. For the purpose of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. There are two post-service audiograms of record. In May 2015, the Veteran underwent a VA audiological examination. The audiologist documented that the Veteran's hearing could not be tested. In March 2016, the Veteran underwent a private audiological evaluation. However, the speech discrimination scores do not denote whether the test was Maryland CNC, which is required to utilize the testing for VA rating purposes. VA must provide a medical examination or opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. In this case, the Veteran has testified that he first began experiencing hearing loss in service that has continued to the present, he has hazardous noise exposure, and acoustic trauma may cause hearing loss. Lastly, the two post-service audiograms of record are not valid for rating purposes, and the October 1993 Report of Medical Examination audiogram does not show the Veteran has a hearing loss disability. Therefore, all the prongs of McLendon are met, and the VA must provide a VA examination and/or medical opinion to determine if the Veteran has a hearing loss disability for VA purposes. As such, a remand is necessary to acquire a VA audiological examination The matters are REMANDED for the following action: Schedule the Veteran for a VA audiological examination to determine whether he has a hearing loss disability for VA purposes. Conduct any and all necessary tests. J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. McDaniels, 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.