Citation Nr: 1313562	
Decision Date: 04/23/13    Archive Date: 05/03/13

DOCKET NO.  07-30 391	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Winston-Salem, North Carolina



THE ISSUES

1. Entitlement to service connection for bilateral hearing loss.  

2. Entitlement to service connection for tinnitus.  



REPRESENTATION

Appellant represented by:	The American Legion



ATTORNEY FOR THE BOARD

M. Mac, Counsel


INTRODUCTION

The Veteran served on active duty from June 1954 to March 1957 and from April 1960 to December 1968

These matters came before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the RO.

The Board remanded the case to the RO in September 2010 and May 2012 for additional development of the record.

The Board has reviewed the contents of the Veteran's Virtual VA file and found no medical or other evidence pertinent to this appeal that is not in his claims file.

In May 2012, the Board referred the issue of service connection for basal cell carcinoma to the Agency of Original Jurisdiction (AOJ).  The issue remains unadjudidcated and the Board continues to refer the matter to the AOJ for appropriate action.   

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 service connection for hearing loss is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran if further action is required on his part.


FINDING OF FACT

The currently demonstrated tinnitus is shown as likely as not to have had its clinical onset during service when the Veteran was exposed to hazardous noise levels in connection with his duties during service, including while serving in the Republic of Vietnam.  


CONCLUSION OF LAW

By extending the benefit of the doubt to the Veteran, his disability manifested by tinnitus is due to disease or injury that was incurred in active service.  38 U.S.C.A.§§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R.§§ 3.102, 3.303 (2012) 


REASONS AND BASES FOR FINDING AND CONCLUSION

The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires that the VA assist a claimant in obtaining that evidence.  38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  Such assistance includes obtaining a medical opinion when such is necessary to make a decision on a claim.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.

To the extent that the action taken hereinbelow is favorable to the Veteran, a discussion of VCAA is not required at this time.  

In this case, the Veteran asserts that he was exposed to various forms of harmful noise during his extensive period of active service, including while in the Republic of Vietnam.  

When the Veteran sought treatment in October 2002, he was noted to have a moderate bilateral high frequency, sensorineural hearing loss.  He was noted to have a history of bilateral tinnitus and noise exposure.  

When seen for medical treatment in July 2006, the Veteran reported having tinnitus that had been worsening for two years and a history of significant noise exposure during his service in Vietnam.  The assessment was that of tinnitus secondary to a high frequency hearing loss secondary to noise exposure and age.  

When examined by VA in January 2011, the Veteran reported having developed intermittent tinnitus in 1967 while in Vietnam.  He added that the tinnitus had worsened over time to the point where it was constant.    

The Veteran was afforded a VA audiology examination in June 2012 when he reported having service noise exposure caused by diesel generators, communication and cryptographic equipment and bomb attacks at his base in the Republic of Vietnam, as well as from aircraft while serving in Germany.  The examiner found that it was unlikely that the cumulative noise levels were enough to damage his hearing.  He also noted that the Veteran had reported complaining about tinnitus during service.  

While the rationale for the VA examiner's negative nexus opinion was that the evaluations during service revealed "normal" hearing, the examiner did not address the Veteran's assertion of having experienced tinnitus during service or the likelihood that the claimed noise exposure during service might have caused him to develop tinnitus.   

In providing a negative nexus opinion, the examiner found that there was no specific event to link the onset of the claimed tinnitus to service; however, the Veteran is competent to describe the onset of the claimed tinnitus during service.  

Significantly, the Board finds these assertions to be credible for the purpose of establishing the presence of the initial manifestations of tinnitus during service after his exposure hazardous noise levels incident to his duties.    

The VA examiner did note that the Veteran had a sensorineural hearing loss disability in each ear.  She added that the hearing testing performed at separation from service showed normal thresholds.  

However, on this record, the Board finds that the Veteran's credible lay assertions are sufficient to establish a continuity of symptomatology referable to tinnitus since service.  

Based on a careful review of the record, the Board finds the evidence to be in relative equipoise in showing that the current tinnitus as likely as not had its clinical onset during service following the Veteran's exposure to harmful noise levels including while serving in the Republic of Vietnam.  

In resolving all reasonable doubt in the Veteran's favor, service connection is warranted.  


ORDER

Service connection for tinnitus is granted.  


REMAND

In March 2012, the Veteran's representative asserted that the claimed hearing impairment was secondary to his service-connected schizophrenia, and an article from the American College of Neuropsychopharmacology discussing an association between hearing impairment and paranoid illness was submitted.  

Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected condition.  See 38 C.F.R. 
§ 3.310.  

Service connection is possible when a service-connected condition has aggravated a claimed condition, but compensation is only payable for the degree of additional disability attributable to the aggravation.  Allen v. Brown, 7 Vet. App. 439 (1995).  

In October 2006, VA amended 38 C.F.R. § 3.310 to incorporate the Court's decision in Allen except that VA will not concede aggravation unless there is medical evidence showing the baseline level of the disability before its aggravation by the service-connected disability.  38 C.F.R. § 3.310(b).  

In this case, the Veteran applied for service connection prior to the effective date of the amendment.  As the Veteran's claim was pending prior to the effective date of the revised 38 C.F.R. § 3.310, the Board will consider the version in effect prior to October 2006, as it is more favorable to the claimant.  See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. 

Under the circumstances, an addendum opinion should be obtained from the VA examiner who conducted the June 2012 VA audiometric examination as to whether claimed bilateral hearing loss was caused or aggravated by his service-connected schizophrenia.  

Accordingly, this remaining matter is REMANDED to the RO 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.  The RO should take all indicated action in order to obtain an addendum opinion from the VA examiner who conducted the June 2012 VA examination.  If this examiner is unavailable and addendum opinion should be rendered by another specialist.  

The claims file should be made available to the examiner for review of the case.  A notation to the effect that this record review took place should be included in the report.  The examiner is asked to address the following questions: 

a.) Is it at least as likely as not (50 percent probability or more) that the claimed hearing loss was caused by the service-connected schizophrenia?

b.) Is it at least as likely as not (50 percent probability or more) that the claimed hearing loss was aggravated by the service-connected schizophrenia?   
   
In responding, the examiner is asked to comment on the submitted article from the American College of Neuropsychopharmacology that suggests there may be an association between hearing impairment and paranoid illness.
   
The examiner must provide reasons for each opinion given.  If the examiner cannot provide an opinion, the examiner must affirm that all procurable and assembled data were fully considered and provide a rationale as to why an opinion cannot be rendered. 

2.  After completing all indicated development, the RO should readjudicate the claim remaining on appeal in light of the evidence of record.  If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response.

Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition.  

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).



_________________________________________________
STEPHEN L. WILKINS
Veterans Law Judge, Board of Veterans' Appeals




























Department of Veterans Affairs