Citation Nr: 1301571 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 11-10 259 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for left ear hearing loss disability. 2. Entitlement to service connection for right ear hearing loss disability. 3. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from May 1955 to May 1958. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from an April 2010 rating decision of the VA Regional Office (RO) in Nashville, Tennessee that declined to reopen the claim of entitlement to service connection for left ear hearing loss and denied service connection for right ear hearing loss and tinnitus. The Veteran was afforded a hearing in November 2012 before the undersigned Veterans Law Judge sitting at Nashville, Tennessee. The transcript is of record. The Board of Veterans' Appeals reviewed records contained in Virtual VA claims file. Following review of the record, the issues of whether new and material evidence has been received to reopen the claim of entitlement to service connection for left ear hearing loss disability and service connection for right ear hearing loss disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's statements of noise exposure during service are credible. 2. Tinnitus is reasonably attributable to inservice noise exposure. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran's favor, tinnitus was incurred in service. 38 U.S.C.A. §§ 1131, 1154(a), 5103, 5107 (West 2002 & Supp. 2012): 38 C.F.R. §§ 3.102, 4.1, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran asserts that he has tinnitus as the result of excessive noise exposure in service for which service connection should be granted. Duties to notify and assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information and any medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159; Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Court of Appeals for Veterans Claims (Court) has held, however, that the VCAA is not applicable where further assistance would not aid the appellant in substantiating the claim. Wensch v. Principi, 15 Vet. App. 362 (2001); see also 38 U.S.C.A. § 5103A (a)(2). In this case, service connection for tinnitus is granted. In view of the Board's favorable decision as to this matter, further assistance is unnecessary to aid the appellant in substantiating this aspect of the appeal. Pertinent Law and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may legitimately be questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (2012). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. Reasonable doubt is defined as doubt that exists because of an approximate balance of positive and negative evidence, which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2012). Factual Background and Legal Analysis The Veteran served during peacetime. Among other things, he appeals the denial of service connection for tinnitus. Service treatment records are unavailable and efforts to obtain them have been unsuccessful. His DD-214 is of record and reflects that he had a military occupational specialty in field artillery. He received a decoration or citation of Marksman on the rifle and carbine. As such, the Board finds that the Veteran's statements concerning in-service noise exposure are credible when viewed in conjunction with the available evidence and are consistent with his occupation and history of noise exposure. Given this factual background, exposure to noise is found to be consistent with the circumstances of his service. See 38 U.S.C.A. § 1154(a) West 2002 & Supp. (2012). Accordingly, in-service exposure to noise is conceded. This does not by itself provide for a grant of service connection. Rather, the evidence must demonstrate that current tinnitus is related to such service. After reviewing the evidence pertaining to the claim in its entirety, the Board concludes that service connection for tinnitus is warranted. The Veteran was afforded a VA examination in December 1973 where it was noted that he had left ear hearing loss and tinnitus. He dated the onset of such back to his time in service approximately 20 years before. The Veteran filed a claim of entitlement to service connection for tinnitus in December 2009. VA outpatient records dating from 2008 reflect that he sought treatment between 2010 and 2012 for hearing impairment. It was reported that he had tinnitus in the left ear. He related that he sometimes had trouble sleeping due to tinnitus. History was positive for noise exposure in the military in artillery and his occupation in factory machinery. The Veteran stated that he did not wear hearing protection in the military but consistently wore it after service during the course of his employment. The Veteran presented testimony on personal hearing in November 2012 that he served in the field during service and that on one occasion, a fellow servicemember shot a gun close to his left ear. He related that he began to have ringing in the ears and a bad headache at that time for which he was treated at a hospital at Fort Sill, Oklahoma for two days. The Veteran stated that the ringing in the ears had not subsided since service and that it was getting worse. In this case, the lay and medical evidence shows current disability of tinnitus. Although the Board is presented with an inadequate service record through no fault of the Veteran, his military occupational specialty in field artillery and a citation for marksman likely presume significant noise exposure during active duty. Additionally, the Veteran is competent to assert the occurrence of in-service injury. See, e.g., Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). Similarly, as a layperson, he is competent to report that he has experienced ringing in his ears since service. See Layno v. Brown, 6 Vet.App. 465, 470. Although there is no objective evidence to support a specific incident of acoustic trauma in service, the Board accepts the Veteran's statements and testimony as competent and credible as to his having been exposed to noise in the military and ringing in the ears that continued thereafter. The Veteran stated that he used ear protection during his employment in factory machinery but did not utilize such devices during active duty. The Board finds that the only significant noise exposure that can be justified is the amount the appellant received during service. Therefore, based on the lay and clinical evidence of record, the Board concludes that the Veteran has acoustic-induced tinnitus due to in-service noise exposure consistent with the nature and circumstances of his service, and that it was incurred in line of duty. The benefit of the doubt is resolved in favor of the Veteran in granting service connection for tinnitus. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for tinnitus is granted. REMAND The Veteran asserts and presented testimony to the effect that that he has hearing loss in the left and right ears related to an injury and field artillery duties in service for which service connection is warranted. Review of the record discloses that following VA special ear, nose and throat (ENT) examination in December 1973 at the VA Center in Wood, Wisconsin, a recommendation was made that the Veteran return to have X-rays of the mastoid, ears and internal auditory canals and return to the ENT clinic in two weeks. A VA clinic note indicated that the X-rays and a return date to the ENT clinic were scheduled that same month. However, if the Veteran followed up on those appointments, no further clinical records were associated with the claims folder. As such, VA has notice of the potential existence of additional records. They must therefore be retrieved and associated with the other evidence on file. See Bell v. Derwinski, 2 Vet. App. 611 (1992); see also Epps v. Brown, 9 Vet.App. 341 (1996); Robinette v. Brown, 8 Vet. App. 69 (1995). Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet.App. 462, 466-67 (1998). Therefore, all VA clinical records dating from December 1973 should be requested from the VA facility or system in Wood, Wisconsin and associated with the claims folder. Additionally, the Veteran testified that he was admitted to a hospital at Fort Sill, Oklahoma for treatment of left ear injury. The Board would point out that in cases where a veteran's service records are unavailable through no fault of his own, there is a heightened obligation to assist in the development of the case, including the obligation to search alternative sources. See O'Hare v. Derwinski, 1 Vet.App. 365, 367 (1991); Moore v. Derwinski, 1 Vet.App. 401, 406 (1991). The United States Court of Appeals for Veterans Claims (Court) held in Dixon v. Derwinski, 3 Vet.App. 261 (1992) that VA should conduct a "reasonably exhaustive search" to obtain service treatment records, including inquiries directed to named facilities if they were still operational. As such, a direct request should be made to the Fort Sill hospital for the Veteran's clinical records dating back to 1955, to include those that may be retired or on microfilm. Additionally, the Board observes that when the Veteran underwent VA examination in 1973, no opinion was provided as to whether left ear hearing loss was related to active duty. While the Veteran has undergone audiology consultations in 2010 and 2012 which show hearing loss, there is no etiological opinion of record. It does not appear that the Veteran has had a VA compensation examination of the right ear that includes a clinical opinion as to whether any current hearing loss has a nexus to service. As such, the record is not sufficiently developed in this regard and a VA examination is warranted. VA is always free to supplement the record by seeking an advisory opinion or ordering a medical examination to support its conclusions. The Board is prohibited from making conclusions based on its own medical judgment. Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991). Accordingly, the Veteran should be afforded a VA audiology examination to include a clinical opinion that addresses the cited deficiencies as stated above. The fulfillment of the VA's statutory duty to assist the Veteran includes requesting a contemporaneous and thorough VA medical examination when indicated, and providing a medical opinion that takes into account the records of prior medical treatment so that the disability evaluation will be a fully informed one. See Hyder v. Derwinski, 1 Vet.App. 221, (1991); Green v. Derwinski, 1 Vet.App. 121, 124. Accordingly, the case is REMANDED for the following actions: 1. Make a direct request to the appropriate clinical facility at Fort Sill, Oklahoma to request clinical records for the Veteran dating from 1955, to include those that might be retired or on microfilm. 2. Request all VA clinical records dating from December 1973 from the VA facility or system in Wood, Wisconsin and associate them with the claims folder. 3. After a reasonable time for receipt of additional records, schedule the Veteran for a VA audiology examination with an appropriate audiological examiner. All indicated tests and studies should be performed and findings should be reported in detail. The claims folder including Virtual VA documents must be made available to the examiner for review. The examination report should include a discussion of the Veteran's documented clinical history and his credible assertions as to noise exposure during and after service. The examiner must provide an opinion as to whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), or less likely than not (probability less than 50 percent) that any current hearing loss is due to noise exposure in service. A complete explanation based on the facts and medical evidence must be provided in the clinical report. 4. After taking any further development deemed appropriate, re-adjudicate the remaining issues on appeal. If a benefit is not granted, provide the Veteran and his representative a supplemental statement of the case and afford them an opportunity to respond before the case is returned to the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested. The Veteran 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 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. 2012). ______________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans Appeals Department of Veterans Affairs