Citation Nr: A25034026 Decision Date: 04/11/25 Archive Date: 04/11/25 DOCKET NO. 240417-433862 DATE: April 11, 2025 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for hearing loss is remanded. Entitlement to service connection for an ear disability other than hearing loss or tinnitus is remanded. FINDING OF FACT The evidence is in relative equipoise as to whether the appellant's current tinnitus had its inception during active duty. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty in the United States Marine Corps from November 1980 to November 1984. This matter comes before the Board of Veterans' Appeals (Board) from a March 2024 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), the Agency of Original Jurisdiction (AOJ), which denied service connection for hearing loss and tinnitus. The AOJ issued the rating decision to the appellant with a notification letter on March 28, 2024. Received on April 17, 2024, was a timely VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), upon which the appellant requested direct review by a Veterans Law Judge on which the appellant identified the March 2024 rating decision, the issues as service connection for hearing loss and tinnitus, and elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the March 2024 AOJ decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the appellant would like VA to consider any evidence that was submitted that the Board could not consider, she may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the claims of service connection for hearing loss and an ear disability other than hearing loss or tinnitus, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases, to include an organic disease of the nervous system like sensorineural hearing loss and tinnitus, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Entitlement to service connection for tinnitus. The appellant contends that her tinnitus is the result of her exposure to military noise. See February 2024 VA Form 21-526EZ; May 2024 Appellant's Brief. In connection with her claim, the appellant was afforded a VA audiological examination in March 2024. The claims file was reviewed. Following examination of the appellant and review of the claims file, tinnitus was diagnosed. The appellant reported that her tinnitus began 38 to 40 years ago. The VA audiologist opined that it was less likely than not that the appellant's tinnitus was due to military noise exposure because there was no evidence of an in-service noise injury, either in the service treatment records or on examination. The examiner explained the Veteran's service treatment records showed normal hearing thresholds at entry and separation and that audiometric testing conducted in connection with the instant examination showed normal bone conduction thresholds (cochlear hearing), which indicated that the Veteran's disability was not the result of noise exposure. Because of the inherently subjective nature of tinnitus, it is capable of lay diagnosis. See Charles v. Principi, 16 Vet. App. 370 (2014); see also Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (noting that "[l]ay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection"). Although the appellant's service treatment records are negative for notations of tinnitus, for the reasons discussed above, the Board finds the appellant is competent to state that she has had tinnitus for 38 to 40 years in 2024. When read in the light most favorable to the claimant, this report essentially places the onset of her tinnitus during her period of active service, which ended in 1984, or in the first post-service year. Moreover, the Board finds no basis in the record upon which to determine that her statements regarding onset and continuity are not credible. The Board has considered the negative nexus opinion offered by the March 2024 VA examiner which was based on the fact that there was no objectively verifiable noise injury. As noted, however, the law provides an alternate avenue for establishing service connection for certain chronic diseases, including an organic disease of the nervous system such as tinnitus. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The Board finds that the record in this case contains evidence sufficient to establish the onset of a chronic disease in service, tinnitus. This evidence is the appellant's report during her March 2024 VA audiological examination. Specifically, the appellant reported that she has experienced ringing in her ears beginning 38 to 40 years ago and that it has persisted since that time. The law provides that when a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. See 38 C.F.R. § 3.303(b). Absent evidence of an intercurrent cause, and resolving reasonable doubt in the appellant's favor, the Board finds that the evidence is in relative equipoise as to whether the appellant's current tinnitus had its inception during active service and has existed since that time. As set forth above, the evidence must be persuasively against the claim for the benefit to be denied. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Given the evidence set forth above, such a conclusion cannot be made in this case. Under these circumstances, the record is sufficient to award service connection for tinnitus. REASONS FOR REMAND 1. Entitlement to service connection for hearing loss. The Board finds that the AOJ committed two pre-decisional duty to assist errors. First, the AOJ erred in not obtaining an adequate etiological opinion with respect to the appellant's current bilateral conductive hearing loss. Second, the AOJ erred in not developing and adjudicating the reasonably raised claim of service connection for an ear disability other than hearing loss and tinnitus. In addition to the criteria set forth above, service connection for impaired hearing is subject to the additional requirement of 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. See also Hensley v. Brown, 5 Vet. App. 155 (1993). The appellant was afforded a VA audiological examination in March 2024. The claims file was reviewed. Following examination of the appellant and review of the claims file, bilateral conductive hearing loss was diagnosed. Pure tone threshold testing revealed: HERTZ 500 1000 2000 3000 4000 RIGHT 35 30 30 30 30 LEFT 30 35 25 30 30 The 1000-4000 Hertz average was 30 decibels in the right ear and 30 in the left. Speech recognition using the Maryland CNC word list was 98 percent in the right ear and 98 percent in the left. These findings meet the criteria for a current disability of hearing loss for VA purposes in both ears. 38 C.F.R. § 3.385. The VA audiologist offered a negative opinion as to whether the appellant's current bilateral conductive hearing loss was due to in-service military noise exposure on the basis that conductive hearing loss is the result of middle ear dysfunction, not noise exposure. It was explained that noise-induced hearing loss affected the inner ear, the cochlea. Normal bone conduction thresholds during the examination indicated that cochlear hearing was normal and that there was no noise injury. Although the VA audiologist provided a well-reasoned explanation as to why the appellant's conductive bilateral hearing loss was not due to in-service noise exposure, the audiologist failed to consider other causes of such. Notably, the appellant's service treatment records include multiple complaints of bilateral ear pain, often in the context of upper respiratory infection and viral syndrome. When the appellant was examined for ear pain in May 1981, the impression was serous otitis. The appellant's September 1980 enlistment examination was within normal limits with respect to the ears and eardrums. As such, she is entitled to the presumption of soundness. 38 U.S.C. §§ 1111, 1137. During a November 2015 VA audiologic evaluation, the appellant reported a history of chronic ear infections, along with four sets of PE (pressure equalizing) tubes throughout her life. She also described a feeling of fluid behind her ears. Examination revealed significant negative middle ear pressure bilaterally, in addition to conductive hearing loss. She was referred to ENT (Ear, Nose, and Throat). During a December 2015 VA ENT visit, the appellant was noted to have thinned and retracted tympanic membranes bilaterally. The Board also notes that the appellant has been found to have participated in toxic exposure risk activity (TERA). A March 2024 VA memorandum states that there was evidence of non-deployment related exposure: MOS as Ground Radio Repairer fuel products such as diesel, JP8, JP-4, industrial solvents used in cleaning, degreasing, paint fumes, benzene, mono ammonium phosphate, risk of . . . electrical burns and fatal electrical shock, toxic welding fumes and possible lead and Asbestos dust. The new medical opinion as to the nature and etiology of the appellant's current bilateral conductive hearing loss should also address whether such is causally related to the appellant's TERA. The Board also finds that the issue of service connection for an ear disability other than hearing loss and tinnitus was reasonably raised prior to issuance of the March 2024 rating decision currently on appeal, based on the in-service diagnosis of serous otitis and the findings detailed in the November 2015 and December 2015 VA clinical notes. See also DeLisio v. Shinseki, 25 Vet. App. 45, 53 (2011) (a pending claim for a specific disability can encompass a claim for the causal condition of that disability where the evidence developed during the case shows a connection to service for the causal disability). As such, the appellant should be afforded an examination with respect to such. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Finally, the record reflects that there are outstanding relevant VA treatment records. The Veteran's VA treatment records show that in November 2015, she underwent audiometric testing. Records of this testing are noted to be in the VistA Imaging system and Computerized Patient Record System (CPRS) that are not included with the CAPRI records. The Board does not have access to VistA Imaging or CPRS. A predecisional duty to assist error was made when these pertinent records were not associated with the claims file and remand is warranted. 38 C.F.R. § 20.802(a). The matter is REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding relevant records viewable in VistA Imaging and CPRS, to include the November 2015 audiometric test results. 2. Obtain a medical opinion to determine the nature and etiology of the appellant's diagnosed bilateral conductive hearing loss. Access to the claims file should be made available to the examiner for review. After reviewing the claims file, the examiner should opine as to the following: Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's current bilateral conductive hearing loss had its onset in service, was manifest to a compensable degree within one year of separation, or is otherwise related to an in-service disease or injury, to include documented complaints of bilateral ear pain, often in the context of upper respiratory infection and viral syndrome, a May 1981 episode of serous otitis, and/or toxic risk exposure activity? When preparing this opinion, the examiner must consider both the total potential exposure and the synergistic, combined effect of all toxic risk exposure activities of the appellant. 3. Provide the appellant an examination to determine the nature and etiology of any current ear disabilities other than hearing loss and tinnitus. Access to the claims file should be made available to the examiner for review. After reviewing the claims file, the examiner should opine as to the following: Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that each identified ear disability had its onset in service, or is otherwise related to an in-service disease or injury, to include toxic risk exposure activity? When preparing this opinion, the examiner must consider both the total potential exposure and the synergistic, combined effect of all toxic risk exposure activities of the appellant. The examiner's attention is directed to the May 1981 service treatment note which diagnosed serous otitis, the November 2015 VA audiologic evaluation, and the December VA ENT visit, described in the Board's remand. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Behlen, Robert 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.