Citation Nr: 1311845 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 10-31 423 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from December 1956 to December 1958. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the claims. 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 Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in November 2012. A transcript of this hearing has been associated with the Veteran's VA claims folder. For the reasons explained below, the issue of entitlement to service connection for hearing loss is REMANDED to the RO via the Appeals Management Center (AMC). VA will notify the Veteran if further action is required on his part. FINDING OF FACT The competent and credible evidence of record indicates the Veteran's tinnitus began in service and continued since. CONCLUSION OF LAW The criteria for a grant of service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this case, for the reasons detailed below, the Board finds that service connection is warranted for the Veteran's tinnitus. As this represents a complete grant of the benefits sought on appeal with respect to that issue, no discussion of VA's duty to notify and assist is necessary. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). 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. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which 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. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The Board acknowledges that most of the Veteran's service treatment records are unavailable, as the record indicates they were damaged in a fire. In such situations VA has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, the case law does not lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (Wherein the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in government control which would have required VA to disprove a claimant's allegation of injury or disease). In this case, the Veteran essentially contends that he developed tinnitus secondary to in-service noise exposure and has provided details regarding the circumstances thereof. Among other things, he related putting on demonstrations with heavy artillery. He also indicated that his tinnitus developed while on active duty although he acknowledged not seeking treatment until years after service. With respect to the Veteran's account of his in-service acoustic trauma, the Board observes that the record does not reflect he engaged in combat while on active duty. Nevertheless, his account of his purported in-service noise exposure is not based upon having served in combat. Moreover, his DD Form 214 reflects his military occupational specialty (MOS) was that of a Heavy Weapons Infantryman. Therefore, the Board finds that his account of his purported in-service noise exposure is consistent with his MOS. The Board acknowledges that a May 2010 VA audio examiner opined that tinnitus was not caused by or the result of in-service noise exposure because the Veteran reported an intermittent tinnitus that occurred in time with his heartbeat. The examiner stated that this was not a pattern typical of tinnitus related to noise exposure. However, the Veteran has reported that his tinnitus developed while he was still on active duty. Specifically, during his hearing, he testified that his ears would ring or he would experiencing a "gushing" sound after exposure to excessive noise including howitzers and blasting ammo boxes during service. The Board finds such contention credible given the nature of his duties during service. Moreover, as tinnitus is a diagnosis based on purely subjective complaints, the Board may accept his statements in this regard. Indeed, in Barr v. Nicholson, 21 Vet. App. 303, 305 (2007), the Court held that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. See also Charles v. Principi, 16 Vet. App. 370 (2002). The medical evidence of record shows that the Veteran has a current diagnosis of tinnitus. The question in this case thus involves the onset or etiology of the disorder, not its existence. Although the May 2010 VA examiner reported that the Veteran's description of his tinnitus symptomatology was not consistent with it being noise-induced, she did not specifically refute the Veteran's account of tinnitus being present for decades. As stated above, the Veteran's lay statements in this case are generally sufficient for the purposes of determining the presence of tinnitus and when it began. See Charles, supra. While there is no competent medical evidence of record that addresses when his tinnitus began, his statements alone may be considered competent evidence to make such a determination. Id. at 374. Accordingly, in light of the competent and credible evidence that the Veteran's tinnitus began in military service and continued thereafter, the Board will resolve all doubt in the Veteran's favor and find that service connection for tinnitus is warranted. ORDER Service connection for tinnitus is granted. REMAND The Veteran has also claimed service connection for bilateral hearing loss. The medical evidence of record indicates the Veteran suffers from hearing loss disability for VA purposes pursuant to 38 C.F.R. § 3.385. However, additional development is necessary before appellate consideration of the claim can be completed. The Board notes the Veteran submitted a letter from Dr. Greene in October 2008, opining that the Veteran's hearing loss is consistent with service connected acoustic trauma. However, the right side of the letter is cut off, leaving incomplete sentences. Thus, the full content of that letter are not available for review. A request for the complete letter should be made. In addition, the partial letter from Dr. Greene does not address the other factors noted in the record which could impact the Veteran's hearing. In this regard, the Veteran is shown to suffer from different types of hearing loss and other ear disorders. Records from Dr. Montgomery reflect that in 2007, the Veteran underwent bilateral myringotomy with placement of tubes in both ears. It was noted the Veteran heard better after the drainage of fluid. The diagnosis at that time included mixed bilateral hearing loss. Records from this physician also note the Veteran suffers from chronic serous otitis media. Moreover, Dr. Greene did not address an August 1995 letter from an audiologist which notes the Veteran reporting progressive hearing loss with an onset of four to five years, suggesting a significantly more recent onset of hearing loss than service. It was noted in that August 1995 letter that testing indicated a severe to profound sensorineural hearing loss from 2000 to 8000 Hertz in the left ear and a mild to severe sensorineural loss from 2000 to 8000 in the left ear. The Board acknowledges that a May 2010 VA audio examiner diagnosed sensorineural hearing loss in the right ear and mixed hearing loss in the left ear. The examiner determined that she could not resolve the etiology of the Veteran's hearing loss without resort to mere speculation, noting the lack of any hearing evaluations until 2008. However, the record does contain the audiogram from 1995, which showed bilateral sensorineural hearing loss. The Veteran has since undergone cochlear implant surgery. Reports of treatment pertaining to the evaluation, surgery, and follow-up care for such are not of record. Such records should be requested on remand. The Board also finds that an additional opinion from a VA otolaryngologist should be obtained. 38 C.F.R. § 3.159(c)(4). Accordingly, this issue is REMANDED for the following: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. Ask the Veteran to provide a complete copy of the October 2008 statement from Dr. Greene. The copy provided cuts off information on the right side of the document. If the Veteran wishes VA to request the document directly from Dr. Greene, he should provide a fully completed release form for that physician. 2. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his hearing loss, to include from the Sarasota Silverstein Institute that performed the cochlear implant surgery. After securing the necessary release, the RO/AMC should request any relevant records identified. If requested records are not available, the Veteran should be notified of such. 3. After the above has been completed to the extent possible and the relevant records associated with the claims file, the claims file should be forwarded to a VA otolaryngologist to obtain a medical opinion concerning the relationship between the Veteran's hearing loss and service. If an examination is deemed necessary by the physician, one should be scheduled. Following review of the claims file, the otolaryngologist should provide an opinion as to whether it is more likely (greater than 50% probability), less likely (less than 50% probability), or at least as likely as not (50/50 probability) that the Veteran's current hearing loss arose during service or is otherwise related to service, to include the acoustic trauma he experienced therein. In rendering this opinion the examiner should consider the Veteran's wife's suggestion that some hearing loss was present at discharge, the Veteran's and his wife's statements of progressive hearing loss after service, the 1995 medical report noting a progressive hearing loss with an onset of 4 to 5 years, and the Veteran's contention that the loud noise in service caused damage to the cilia in his ear that led to his current hearing loss, as well as the medical evidence of record diagnosing both sensorineural, conductive, and mixed hearing loss. The medical basis for the conclusions reached should be provided. (The term, "as likely as not," does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the examiner's conclusion as it is to find against it. "More likely" and "as likely as not" are opinions in support of service connection; "less likely" or "unlikely" are opinions that weigh against service connection). If the otolaryngologist concludes that an opinion cannot be provided without resorting to speculation, the physician must explain why an opinion cannot be provided. 4. After the development requested above has been completed to the extent possible, the RO/AMC should again review the record. If the benefit sought on appeal remains denied, the appellant should be furnished a supplemental statement of the case and be given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran 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. 2012). ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs