Citation Nr: 1117868 Decision Date: 05/10/11 Archive Date: 05/17/11 DOCKET NO. 08-29 550 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California THE ISSUES 1. Entitlement to a higher (compensable) initial disability rating for service-connected bilateral hearing loss. 2. Entitlement to service connection for tinnitus, including as secondary to service-connected bilateral hearing loss. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served on active duty from August 1979 to August 1983. This case comes to the Board of Veterans' Appeals (Board) on appeal from a June 2007 decision by the RO in Oakland, California that granted service connection and a noncompensable rating for bilateral hearing loss, and denied service connection for tinnitus. A video conference hearing was held before the undersigned Veterans Law Judge in March 2011. Additional pertinent evidence was received from the Veteran in March 2011. As the Veteran has waived initial RO review of this evidence, the Board will consider it. 38 C.F.R. § 20.1304 (2010). The issue of entitlement to a higher initial rating 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 1. The weight of the competent evidence does not show that the Veteran incurred tinnitus during active service. 2. The weight of the evidence demonstrates that tinnitus is proximately due to service-connected bilateral hearing loss. CONCLUSIONS OF LAW 1. Tinnitus was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2010). 2. The criteria for establishing secondary service connection for tinnitus have been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.310(a) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). As noted above, service connection was granted for bilateral hearing loss in a June 2007 rating decision, and thus the Veteran's appeal for service connection for tinnitus now includes the alternative theory of secondary service connection. In this case, the Board finds that the RO has substantially satisfied the duties to notify and assist. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the appellant in proceeding with the issue of service connection for tinnitus given the fully favorable nature of the Board's decision. Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). This includes any increase in severity of a nonservice-connected disease that is proximately due to or the result of a service-connected disability as set forth in 38 C.F.R. § 3.310(b). See also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran essentially contends that he incurred tinnitus and hearing loss in service as a result of noise exposure from artillery. In this regard, the Board notes that the RO granted service connection for bilateral hearing loss in a June 2007 rating decision. The Veteran's DD Form 214 reflects that he served in the U.S. Army, and that his primary military occupational specialty was a cannon crewman. The Board finds that the Veteran's service was consistent with noise exposure. Service treatment records are entirely negative for tinnitus. Post-service medical records reflect that tinnitus was first diagnosed in 2006. In his August 2006 claim, the Veteran reported that his hearing loss and tinnitus began in 1999, and he received no treatment for these conditions. At an October 2006 VA examination, the Veteran reported that his tinnitus started about three years ago. He reported gradual hearing loss over the past ten years or so. He reported noise exposure in service from artillery. He denied excessive noise in his job as a cook. He stated that his tinnitus was periodic, occurred once per month, and lasted for a couple of minutes. He said the tinnitus was a "ringing," and was medium in volume. The examiner opined that the Veteran's normally-occurring head noise did not match the definition of true tinnitus, and that it had occurred after service in the past few years. In a February 2007 addendum, the examiner indicated that she had reviewed the claims file, and opined that the Veteran's hearing loss was incurred in service, and opined that since the Veteran reported that the onset of tinnitus was three years ago, his tinnitus was not related to military service as tinnitus related to military noise would have occurred at or near the time of the noise exposure. In a private treatment note dated in July 2008, S.M.V., MD, indicated that the Veteran reported 10 years of gradual hearing loss. He denied tinnitus. Dr. V. diagnosed sensorineural hearing loss, and opined that it was likely related to his field artillery experience in the military. In a September 2009 treatment note, Dr. V. noted that the Veteran reported that he had constant bilateral tinnitus for the past five years. Dr. V. diagnosed sensorineural hearing loss likely secondary to loud noise exposure. He opined that it is quite likely that the Veteran's tinnitus is secondary to his hearing loss. By a letter dated in February 2011, Dr. V. noted that the Veteran has sensorineural hearing loss and tinnitus. He opined that if it has been determined that his hearing loss was secondary to his military service, then his tinnitus which is due to his hearing loss, must be so as well. By a letter dated in March 2010, a private physician, R.M.B., MD, opined that the Veteran's mild high frequency loss with tinnitus was more likely than not the result of his noise exposure while he was in the field artillery in the military. At his March 2011 Board hearing, the Veteran testified that he first had ringing in his ears 20 years ago, after discharge. He said that he found out what tinnitus was in 2004. He also stated that he had ringing in his ears after he fired artillery without hearing protection in service. He stated that after service he had held mostly cooking jobs, and that his noise exposure as a cook was nothing like the noise from artillery. As to the question of continuity of symptomatology of tinnitus, the Board notes that the Veteran's statements as to the date of onset of this condition are extremely variable. He testified that his tinnitus began after service, but also testified that he had ringing in his ears after firing artillery in service. He has on other occasions reported that it started three years ago (in 2006) and five years ago (in 2009). He has also denied having tinnitus (in July 2008). He has reported constant tinnitus, as well as intermittent tinnitus. Most recently, at his March 2011 Board hearing, he stated that he had ringing in his ears for 20 years. A VA examiner has offered a medical opinion to the effect that the Veteran's tinnitus was not likely due to service, based primarily on his reports that his tinnitus was only of a few years' duration. Dr. B. has related the Veteran's tinnitus to service. Dr. V. has opined that the Veteran's tinnitus is due to his service-connected bilateral hearing loss. Tinnitus has been defined by the Court as a ringing, buzzing noise in the ears. See YT v. Brown, 9 Vet. App. 195, 196 (1996); Kelly v. Brown, 7 Vet. App. 471 (1995) (citing Dorland's Illustrated Medical Dictionary 1725 (27th ed. 1988)). Due to the subjective nature of the disorder, the Veteran, as a lay person is competent to testify as to his symptoms. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995). Under certain circumstances lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Courts have in the past held that lay testimony is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, here, although he has made varying statements, the Veteran has repeatedly stated that his tinnitus symptoms began after service, and on at least two occasions, he stated that it started many years after service. The Board finds that continuity of tinnitus symptoms since service is not shown. As to a causal relationship between his current tinnitus and service, the Veteran is not qualified to offer an opinion because the question of etiology of his tinnitus is not lay-observable and requires medical expertise. The competent medical evidence of record is conflicting as to whether tinnitus is related to service. The Board finds that the February 2007 VA medical opinion is of greater weight than that of the March 2010 private physician on this point, as the VA examiner reviewed the Veteran's claims file and medical records, and, moreover, as the Veteran himself has reported that tinnitus began years after service. However, after careful consideration of all procurable and assembled data, and bearing in mind the benefit-of-the-doubt rule (38 U.S.C.A. § 5107), the Board finds that the evidence is in relative equipoise as to the issue of secondary service connection for tinnitus, given the Veteran's demonstrated acoustic trauma in service, his diagnosis of tinnitus in 2006, his current diagnosis of tinnitus, and the medical opinions by Dr. V. on the issue of service connection for tinnitus as secondary to hearing loss. Under such circumstances, the Board finds that the weight of the evidence of record shows that the Veteran's tinnitus is proximately due to or the result of his service-connected bilateral hearing loss. 38 U.S.C.A. § 1131, 5107; 38 C.F.R. §§ 3.102, 3.310; Gilbert, 1 Vet. App. at 49. The Board finds that the secondary tinnitus must be considered a part of the original bilateral hearing loss, and service connection is warranted on this basis. See 38 C.F.R. § 3.310(a) (2010). ORDER Service connection for tinnitus is granted as secondary to service-connected bilateral hearing loss. REMAND Although further delay is regrettable, the Board finds that further development is required prior to adjudication of the Veteran's claim for a higher initial rating for service-connected bilateral hearing loss. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Evaluations of bilateral defective hearing range from noncompensable to 100 percent. This is based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85. A review of the claims file reflects that the Veteran has submitted pertinent reports of private audiological examinations. Two of the private examination reports from Central Coast Head and Neck Surgeons, Inc. dated in July 2008 and March 2010, are currently inadequate for rating purposes because they either do not indicate whether the Maryland CNC speech discrimination test was used, or include audiometric findings that are reported in graph form only. The associated treatment notes by private physicians also do not indicate whether the Maryland CNC speech discrimination test was used. On remand, the RO should notify the Veteran and the private examiners that the examination reports provided are insufficient and request clarification as to whether the Maryland CNC speech discrimination test was used. 38 U.S.C.A. § 5103A(g); 38 C.F.R. § 3.159. If no response is received, either from the private examiner or the claimant, VA may continue on the path of adjudication, weighing the accumulated evidence of record as usual. See Savage v. Shinseki, No. 09-4406 (U.S. Vet. App. Jan. 4, 2011). Ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should ask the Veteran to provide the names and addresses of all medical care providers who have treated him for hearing loss since July 2009. After securing any necessary releases, obtain any records which are not duplicates of those in the claims file. 2. Contact Central Coast Head and Neck Surgeons, Inc. and request that they identify which speech discrimination test was utilized during the July 2008 and March 2010 examinations, as well as to provide the puretone threshold findings in numerical form. If the treatment providers are unavailable or do not respond, the RO should make a notation of this fact in the record. 3. Notify the Veteran that the July 2008 and March 2010 examinations by Central Coast Head and Neck Surgeons, Inc. are inadequate for rating purposes and that VA is contacting the provider for additional information. If, after allowing an adequate time for response, no response is received from Central Coast Head and Neck Surgeons, Inc., notify the Veteran that VA may continue to adjudicate the claim, after weighing the accumulated evidence of record. 4. Thereafter, readjudicate the Veteran's appeal for a higher rating for bilateral hearing loss, with application of all appropriate laws and regulations, including consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded a reasonable period of time within which to respond. The appellant has the right to submit additional evidence and argument on the matter 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 that are 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. 2010). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs