Citation Nr: 1309943 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 10-41 527 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial compensable rating for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from December 1953 to February 1983. His decorations include the Purple Heart Medal and the Combat Infantryman's Badge. This matter comes to the Board of Veterans' Appeals from a December 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, that in pertinent part, granted entitlement to service connection for bilateral hearing loss and denied service connection for tinnitus. The Veteran filed a notice of disagreement in March 2009, and the RO issued a statement of the case dated in September 2010. The Veteran filed his substantive appeal in September 2010. In February 2012, the RO issued a statement of the case with regard to the issues of entitlement to service connection for residuals of a gunshot wound to the jaw and degenerative disc disease with levoscoliosis. The Veteran did not submit a substantive appeal with regard to these issues and they were not certified to the Board. The September 2010 statement of the case included the issue of entitlement to an initial compensable rating for a chin scar. The Veteran limited his substantive appeal to the issues listed on the front page, and the chin scar issue was not certified to the Board. The Board's decision will therefore be limited to the issues listed on the front page of this decision. In addition to the claims file, the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file as well as the Veteran's claims file and will proceed with review of the claims based upon all relevant evidence. Please note 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). The issue of a higher evaluation 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. FINDING OF FACT Tinnitus likely had its onset in service. CONCLUSION OF LAW Tinnitus was incurred in the Veteran's active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In this case, however, as the Board has decided that entitlement to service connection for tinnitus is warranted, no further discussion of the Veterans Claims Assistance Act of 2000 and the implementing regulations is required at this point. II. Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. 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); 38 C.F.R. § 3.303(a). The Board observes that for injuries alleged to have been incurred in combat, 38 U.S.C.A. § 1154(b) provides a relaxed evidentiary standard of proof regarding events that occurred during combat. Collette v. Brown, 82 F.3d 389 (1996). Specifically, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). However, the reduced evidentiary burden only applies to the question of service incurrence, and not to the question of either the existence of a current disability or nexus between that disability and service, both of which generally require competent medical evidence. See generally, Brock v. Brown, 10 Vet. App. 155 (1997), vacated on other grounds (Fed. Cir. Dec. 15, 2000); Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459, 464 (1996). It is the Board's responsibility to evaluate the entire record on appeal. 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in each such issue in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. An appellant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). In this case, the Veteran contends that he is entitled to service connection for tinnitus. As the Veteran has been service-connected for hearing loss, hazardous noise exposure in service has been found. See also 38 U.S.C.A. § 1154(b). The Veteran asserts that this noise exposure over his 30 years of service has caused his current tinnitus. In this regard, the Board notes that the Veteran was afforded two audiological examinations in connection with his hearing claims. The first of these is dated in August 2008. The examiner indicated that the Veteran's claims file had not been reviewed in connection with the examination and report. In this examination, the Veteran was found to have bilateral hearing loss, which was found to be likely related to military service, based on the Veteran's statement that hearing loss began in service and the nature of the hearing loss presented. The examiner noted, however, that the Veteran reported that tinnitus began approximately 7-8 years after service. Based on this statement, the examiner found that the tinnitus was not likely related to service. The Veteran was provided with an additional VA examination dated in August 2010 with the same examiner that conducted the previous examination. Again, the examiner indicated that the Veteran's claims file had not been reviewed in connection with the examination and report. This examination was primarily in connection with a claim for an increased in the Veteran's hearing loss disability. However, the examiner did provide an opinion regarding the Veteran's tinnitus. The examiner stated that, in 2008, the Veteran reported onset for tinnitus 7-8 years after service. Therefore, the examiner found that, while it may be associated with the progression of his hearing loss or some other etiology, it was judged to be less likely related to military noise exposure. The examiner also found that tinnitus was as likely as not associated with another medical condition, which was not then identified. The Board obtained an expert medical opinion through the Veterans Health Administration (VHA). 38 C.F.R. § 20.901(a) (2012). The opinion was received in March 2013. The physician who provided the opinion concluded that the Veteran's tinnitus probably began after a tank explosion in service. The examiner explained that tinnitus after such an explosion was an indication of damage to the cochlear hair cells. Even if temporary or intermittent, the subsequent development of hearing loss and associated tinnitus were common sequelae of noise induced damage to the cochlea. The VHA opinion was the product of a review of the record, including consideration of the history provided by the Veteran. It was supported by a satisfactory rationale. Because it considered the entire history it is more probative than the VA examiner's opinions. The VA examiner, that provided the opinions concerning the etiology of the Veteran's tinnitus, appears to have done so solely on the basis that tinnitus was reported to have begun 7-8 years after service, and not on a review of the veteran's medical records or claims file. The examiner also indicated that such condition might be associated with the progression of his hearing loss, but ultimately rejected this, based on the Veteran's reported onset date. The examiner, however, did not explain why a later onset or other medical condition was more likely to be the cause, as opposed to an association with the same military noise exposure that caused the Veteran's service-connected hearing loss. In this case, it is uncontested that the Veteran currently has tinnitus and was exposed to considerable acoustic trauma in service. Because the most probative evidence is in favor of the claim, service connection for tinnitus is awarded. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for tinnitus is granted. REMAND The Veteran's representative reported in a December 2012 Brief Presentation, that the Veteran maintained that his hearing loss had increased in severity since his last examination. His most recent examination took place in August 2010. Because the Veteran asserts a worsening in his condition, he is entitled to a contemporaneous VA examination in order to determine the current level of his service-connected disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). In this regard, the Board also notes that the United States Court of Appeals for Veterans Claims (Court) held that VA audiological evaluations should include both objective test results and a full description of the functional effect of the Veteran's hearing loss disability. Martinak v. Nicholson, 21 Vet. App. 447 (2007). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Schedule the Veteran for a VA examination for compensation purposes in order to determine the current severity of his service-connected bilateral hearing loss. Send the claims folder to the examiner for review of pertinent documents therein. The examination report should specifically state that such a review was conducted. All indicated tests and studies should be accomplished. The examiner must describe any functional effects associated with the Veteran's hearing disability. Reasons for all opinions should be included in the examination report. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 3. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then return the case to the Board, if otherwise in order. 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). The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that, pursuant to 38 C.F.R. § 3.655, failure to cooperate by attending a requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs