Citation Nr: 1200192 Decision Date: 01/04/12 Archive Date: 01/13/12 DOCKET NO. 10-41 904 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1978 to December 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In June 2011 the Veteran was afforded a Travel Board hearing. The transcript has been associated with the claims file. The issue of entitlement to service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT The competent and credible evidence is at least in equipoise as to whether the Veteran's current tinnitus is causally related to in-service noise exposure. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that VA has substantially satisfied the duties to notify and assist, as required by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this appeal given the favorable nature of the Board's decision. Any error in the failure to provide notice involving the downstream elements of rating and effective date is harmless at this time, and can be corrected by the RO following the Board's decision. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Service connection may be awarded for a current disability arising from a disease or injury incurred in, resulting from or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303, 3.304. When there is an approximate balance of positive and negative evidence, the claimant shall be given the benefit of the doubt. 38 U.S.C.A. § 5107. The Veteran contends that he has tinnitus due to his active military service. Specifically, the Veteran reported in-service noise exposure, and ringing in his ears since service. He described in-service noise exposure to include from exposure to jet engines while working on the flight line in his capacity as an electrician who worked in all areas on the Air Force base. His DD Form 214 confirms the Veteran worked as an Interior Electrical Specialist. Service treatment records are without complaints of ringing in his ears, although there are various complaints regarding difficulty hearing. At his October 2009 VA audiological examination, the Veteran reported noise exposure to jet engines on the hangars and flight decks during military service. The Veteran also reported post-service noise exposure as a heavy equipment operator for three years, during which time he reportedly always wore ear protection. The Veteran denied recreational noise exposure. The Veteran indicated that he experienced constant tinnitus, with mild tinnitus present for twenty years. The examiner diagnosed bilateral subjective tinnitus. At that time, the claims folder was not available for the examiner to review, and the examiner related that it was not possible to determine the etiology of the tinnitus without resorting to mere speculation. The claims folder was later made available for review, and the examiner offered an addendum opinion in November 2009. The examiner opined that based on the Veteran's reported history of significant noise exposure after military service and documented normal hearing at release from active duty, it was not possible to determine the etiology of the tinnitus without resorting to mere speculation. At his June 2011 hearing the Veteran described how as an electrician in service he performed work orders in various locations on George Air Force Base including the barracks, kitchen, flight line, and hanger. He indicated that the base had an active runway used by aircraft such as F-4 phantoms. The Veteran indicated that he experienced tinnitus as "a dead ringing" since service and had adapted to it. In addition to the convincing evidence of significant in-service noise exposure, the record on appeal includes the Veteran's statements of ringing in his ears since service. The Board finds that the Veteran's statements in this regard are both competent and credible. With respect to the question of competency, the Board notes that ringing in the ears is the kind of condition lay testimony is competent to describe. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Additionally, the Board finds that the Veteran's statements of ringing in his ears since service are consistent, and finds they are credible. The Veteran's contentions that he experienced tinnitus since service were not clear to the VA examiner. At his hearing, however, the Veteran clarified that he had experienced ringing in his ears since service. Thus, regarding etiology, the Veteran's reported history holds more probative weight than the VA examiner's speculative opinion. After carefully considering the record, including the Veteran's credible assertions of in-service noise exposure and tinnitus since service, the Board finds that the evidence is at least in equipoise as to the continuity of symptomatology regarding the Veteran's tinnitus. Accordingly, the Board resolves all reasonable doubt in favor of the Veteran, and finds that the evidence of record supports service connection for tinnitus. ORDER Entitlement to service connection for tinnitus is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND In his written contentions to the Board, as well as his testimony at the June 2011 hearing, the Veteran indicated that he has experienced hearing loss since service, and described having to look at the speaker to understand what was said. His in-service noise exposure is as discussed above. The Veteran indicated that he did not wear hearing protection in service. In addition, the Veteran described that his difficulty hearing while in service caused him to oversleep because he could not hear his alarm clock, and that his service personnel records should reflect that he was late on multiple occasions due to his inability to hear his alarm. The Veteran described rigging his alarm to a fire alarm outside of his building in order to help him wake up. In discussing post-service noise exposure it is as described above, with the added detail that the Veteran operated an earth mover, which had a closed cab, without hearing protection. The Veteran's service treatment records reveal that on enlistment the Veteran's ears were considered normal, and audiological testing was performed. There are however, numerous documented in-service complaints of hearing loss. The Veteran had a July 1979 evaluation wherein he indicated that he had experienced hearing loss for the previous six months, he was assessed as having vasomotor rhinitis, and there was a notation that an audiogram was within normal limits. On his separation examination, a notation indicated "allergy causing hearing loss, see consult dated July 79." The audiogram referenced in the July 1979 clinical note is not associated with the claims folder, and on remand should be requested. At his VA examination in October 2009, the Veteran was diagnosed as having bilateral sensorineural moderate high frequency hearing loss. At that time the claims folder was not available to the examiner for review, such that any opinion as to etiology would have been speculative. In November 2009, however, the examiner reviewed the claims folder and offered an addendum opinion. The examiner reasoned that based on a September 2005 Institute of Medicine Report on Noise and Military Service, which concluded that noise induced hearing loss occurred immediately such that there was not scientific support for delayed onset hearing loss, and given the Veteran's hearing was within normal limits at the time of his separation examination, it was less likely than not that the hearing loss was related to military noise exposure. Such opinion failed to discuss the various audiological tests performed while the Veteran was in service, and the threshold shifts experienced in service, or to account for the Veteran's multiple complaints of difficulty hearing. In addition, the examiner relied on the Veteran's hearing as within normal limits at the time of separation from service. Such a rationale is contrary to established case law, i.e., Dalton v. Nicholson, 21 Vet. App. 23 (2007), which states that an examination will be held to be inadequate where the examiner did not comment on the appellant's report of in-service injury, and instead relied on the absence of evidence in the service medical records to provide a negative opinion. VA has a duty to ensure that any examination or VA opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As such, another VA examination should be provided. The examiner should address the nature, extent, and etiology of the Veteran's bilateral hearing loss in light of the Veteran's credible assertions regarding in-service noise exposure, and hearing difficulty since service. See 38 C.F.R. § 3.159. The Board observes that there were numerous audiograms in the service treatment records, some of which appear to show threshold shifts, and it would be helpful if the examiner would discuss them. Accordingly, the case is REMANDED for the following action: 1. Request and associate with the claims folder all VA personnel records. If these records are not available, a formal finding of such should be associated with the claims folder. 2. Request and associate with the claims folder any outstanding service treatment records, in particular the July 1979 audiogram referenced by the record. If such records are not available, a formal finding of such should be associated with the claims folder. 3. Then, the Veteran should be afforded another VA audiological examination. The claims folder must be provided to the examiner for review in connection with the examination. The examiner should specifically accept as true the Veteran's statements regarding in-service noise exposure and that he has experienced lay-observed hearing difficulty since service. The examination must include appropriate audiometric and speech discrimination testing of both ears. The examiner should provide a discussion of the Veteran's in-service noise exposure and any threshold shifts experienced in service. The examiner should provide an opinion as to whether it is at least as likely as not that any current bilateral hearing loss is related to acoustic trauma in service. A rationale should be provided for any opinion. 4. Following any additional indicated development, the case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs