Citation Nr: 1306166 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 10-41 417 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for bilateral tinnitus. 2. Entitlement to service connection for a sinus condition. 3. Entitlement to service connection for a nose disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from June 1994 to November 1994, from September 2001 to May 2002, and from July 2003 to November 2003, with additional service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) from a January 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for the issues on appeal. In April 2012, the Veteran testified before the Board via videoconference. At the hearing, he submitted additional evidence with a waiver of RO jurisdiction. The issues of entitlement to service connection for a sinus condition and nose condition 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. FINDING OF FACT Resolving the benefit of the doubt in favor of the Veteran, the probative evidence of record demonstrates that the Veteran's tinnitus began during active service. CONCLUSION OF LAW Tinnitus was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As will be discussed in full below, the Board finds that service connection for tinnitus is warranted; therefore, a full discussion of whether VA met the duties to notify and assist is not needed as no prejudice can flow to the Veteran from any notice or assistance error based upon the full grant of the benefit sought. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet.App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology. See Barr v. Nicholson, 21 Vet.App. 303 (2007). Continuity of symptomatology can be demonstrated by showing (1) that a condition was "noted" during service; (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the post service symptoms. Savage v. Gober, 10 Vet.App. 488 (1997). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if: (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson, supra; see Jandreau supra. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Veteran contends that his tinnitus was caused by acoustic trauma sustained in service. Specifically, he contends that he was exposed to firing exercises throughout his service from 1993 to 2004, including machine guns, grenades, artillery simulators, and tank fire. He also drove large military trucks. He was exposed to this acoustic trauma during basic training, while in an artillery unit for two years, when working in a truck company, and as a military police officer. After exposure to the acoustic trauma, he would always notice ringing in his ears and hearing loss. Eventually, beginning in around 2001, he started to have to read lips to hear and experienced persistent tinnitus. Service treatment records are negative for complaints of tinnitus. A July 2003 audiogram did not show hearing loss for VA purposes. See 38 C.F.R. § 3.385. However, it was noted that the Veteran was "routinely noise exposed." The Board notes here that the Veteran's service personnel records, specifically, his service separation documents, his DD-214s, indicate that his military occupational specialty was military police, armor crewman, and motor transport operator. Despite the fact that the record is void of documentation of complaints or treatment for tinnitus during service, the Veteran is competent to describe the nature and extent of his in-service noise exposure. There is no evidence that the Veteran is not credible. Thus, based on the foregoing, the Veteran's lay statements and his service personnel records, the Board finds that the Veteran indeed had noise exposure during service, specifically, from performing his duties as described above for many years. See 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Having determined that the Veteran had noise exposure in service, the Board must now determine whether there is nexus between the Veteran's tinnitus and his active service. See Brock v. Brown, 10 Vet. App. 155, 162 (1997); Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459, 464 (1996). On July 2008 VA examination, the Veteran reported exposure to artillery simulators during basic training, after which he first noticed ringing in his ears. As part of the field artillery, he was exposed to howitzers frequently. In the 11 years of his service, he had several training exercises that used live fire from pistols, guns, and grenade launchers. He also drove diesel half ton and five ton trucks for three to four years. Since service, he had worked as a city administrator with no noise exposure. He had hunted deer twice since discharge. He used power tools at home without ear protection. Audiometric testing did not show hearing loss for VA purposes. The examiner stated that his tinnitus was not related to his hearing loss. In November 2008, a VA examiner reviewed the claims file and determined that the Veteran's tinnitus was less likely than not related to his service because acoustic trauma would more likely cause hearing loss than tinnitus and his separation audiogram was normal. Most tinnitus was due to sensorineural hearing loss, though there were many other reasons for tinnitus outside of hearing loss. The Veteran's statements made during the course of the appeal are clear that he contends that his tinnitus began during service and has persisted since. The Veteran is competent to describe the nature and extent of his audiological symptoms, and there is no evidence that the Veteran is not credible. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When weighing his statements with the negative VA opinions, the Board gives greater weight to the Veteran's statements because the VA opinions do not take into account the Veteran's lay reports of experiencing tinnitus in service or his duties and noise exposure in service. It is persuasive to the Board that the Veteran has reported tinnitus for many years beginning in service, and that he served for over a decade with consistent exposure to loud noises, including weapons fire, large trucks, and military police exercises. The VA examiners did not indicate that the Veteran's description of his tinnitus was inconsistent with the diagnosis of tinnitus. Moreover, the Court has held that tinnitus is a disability that a lay person can describe because it is defined as a "noise in the ears, such as ringing, buzzing, roaring, or clicking." Charles v. Principi, 16 Vet. App. 370, 374 (2002) (quoting Dorland's Illustrated Medical Dictionary 1714 (28th ed.1994)). Lastly, the VA examiners provided very little rationale for the opinions reached, relying solely on the lack of hearing loss on separation from service to indicate that his tinnitus was not related to his service. In so doing, they discounted his lay statements of onset of and continuity of tinnitus and loss of hearing, even if the loss was not severe enough to be diagnosed. In light of the subjective nature of symptoms of tinnitus, and the less probative medical opinions, the Board finds that the matter is at least in equipoise. Accordingly, resolving all reasonable doubt in favor of the Veteran, as is required by law, the Board finds that the Veteran incurred tinnitus as a result of in-service noise exposure experienced during his active service, and the claim is granted. 38 U.S.C.A. § 5107(b)(West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 50 (1990). ORDER Service connection for tinnitus is granted. REMAND Additional development is necessary prior to further disposition of the claims for service connection for a sinus condition and a nose condition. The Veteran underwent surgery to extract all four wisdom teeth sometime during his period of active service from September 2001 to May 2002. He has stated that the surgery may have occurred from October 2001 to December 2001 or from January 2002 to April 2002 at Offutt Air Force Base, Ehrling Bergquist hospital. Those records are not located in the Veteran's service treatment records. The RO received negative responses from the National Personnel Records Center (NPRC) for the reported dates of treatment. In October 2011, the NPRC suggested checking the Veteran's official military personnel folders in the custody of the Department of the Defense. It does not appear that such action has been taken. Moreover, the RO should request records directly from Offutt Air Force Base in case there is a copy of the aforementioned dental records that were never associated with the Veteran's service records. The Veteran contends that during the wisdom tooth extractions, there were complications wherein the right side of his face was hit with a chisel, injuring his nose. Then, the surgery was further complicated because the root of the tooth on the upper right side was located in the sinus area and had to be removed. The Veteran contends that ever since the surgery, he has experienced sinus pain and pressure, frequent sinus infections, and sinus-related headaches. Service treatment records reflect that in January 2002, the Veteran reported having had recent dental surgery and dislocation of mandibles. He was to wait five to six weeks until all dental work had been completed and he had completely healed. In April 2002, the dental injury was noted to have resolved and he was cleared to conduct military duty. Post-service treatment records reflect that in October 2005, the Veteran reported having chronic headaches and cough that had been occurring since his wisdom teeth were removed. A CT scan had shown complete opacification of the right maxillary sinus as well as a deviation of the septum. He underwent endoscopic sinus surgery and also reduction of the right turbinate. In May 2006, the only symptom the Veteran had was sharp right-sided headaches around the right eye and temporal area. His sinuses were clear and he did not have rhino sinusitis and therefore, the headache was suspected to not be sinus-related. In February 2008, he was noted to have chronic allergies. Alternatively, the Veteran contends that ever since basic training, when he had to go into a gas chamber for a drill exercise, he has suffered from recurrent lung infections. He reported that history on a January 2002 service examination. It was also noted that he had bronchitis in the spring with pollens. Follow-up testing for a lung condition showed that his PFT was 77 percent predicted and Methcholine challenge did not show significant bronchoconstriction. He was cleared for duty. On July 2008 VA examination, the Veteran reported congestion on the right side. He had had six to eight sinus infections in the previous year. He was noted to also have seasonal, exercise-induced, and weather-related respiratory symptoms. The examiner stated that because the service dental records were not available, an opinion could not be made without resorting to speculation. In this case, a remand is necessary to determine if there are any other outlets to obtain copies of the Veteran's service dental records. Either way, another VA examination is necessary, given the Veteran's report of what occurred during his wisdom teeth surgery, to determine whether there is an etiological relationship between his current sinus infections and the events in service. Accordingly, the case is REMANDED for the following actions: 1. Request a copy of the Veteran's dental records from Offutt Air Force Base from September 2001 to May 2002. If a negative response is received, inform the Veteran. 2. Request a copy of the Veteran's complete service treatment records and service personnel records from the Department of the Defense as suggested by the NPRC in October 2011. 3. After the above development is accomplished, schedule the Veteran for a VA examination to determine the etiology of his nose and sinus conditions. The examiner should review the claims file and note that review. All opinions should be accompanied by rationale. Based on the examination and review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed sinus condition (to include infections with congestion and headaches) and nose condition (to include status-post deviated septum), were caused or aggravated by his service, specifically as due to the reported wisdom teeth extraction with mandible dislocation and removal of nerve roots, and/or as due to inhalation of gas chamber fumes. If such an opinion cannot be made, the examiner should so state with a thoroughly explained rationale. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 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). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs