Citation Nr: 1314459 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 10-36 607 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Saira Spicknall, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to May 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction currently remains with the Nashville, Tennessee RO. A review of the Virtual VA paperless claims processing system reflects that additional records have not been added to the present appeal. The issue of service connection 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 Affording the Veteran the benefit of the doubt, the satisfactory lay and medical evidence of record demonstrates that tinnitus is related to acoustic trauma during his active service. CONCLUSION OF LAW Resolving the benefit of the doubt in the Veteran's favor, the criteria for the establishment of service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act (VCAA) The VCAA, codified, in part, at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. § 3.159 (2012). The legislation has eliminated the well-grounded claim requirement, has expanded the duty of VA to notify the appellant and the representative, and has enhanced its duty to assist an appellant in developing the information and evidence necessary to substantiate a claim. See generally VCAA. In this case, the Board finds that the RO has substantially satisfied the duties to notify and assist, as required by the VCAA. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this issue given the fully favorable nature of the Board's decision. Pertinent Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). 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 the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disorder on a direct basis, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether the requirements for service connection are met is based on an analysis of all of the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 3.303(a) (2012). See Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). See Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). If the Board determines that the preponderance of the evidence is against the claim, then it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule will not be applicable. Ortiz, 274 F.3d at 1365. With regard to VA examinations, the Board notes that the most recent examination is not necessarily and always controlling; rather, consideration is given not only to the evidence as a whole but to both the recency and adequacy of examinations. See Powell v. West, 13 Vet. App. 31, 35 (1999). Analysis Throughout the duration of the appeal, the Veteran has maintained that his tinnitus is related to acoustic trauma from his active service, wherein he served as a combat medic during the Vietnam War. The Veteran's DD Form 214 reflects that his military occupational specialty (MOS) was that of a medical specialist and indicates that he served in the Republic of Vietnam. The DD Form 214 also reflects that the Veteran was awarded the combat medic badge (CMB). Therefore his service information supports his reports of exposure to excessive noise during his active service. Service treatment reports were absent of any findings or complaints of tinnitus. In the October 1967 induction examination, a clinical evaluation revealed normal findings of the ears and drums. The Veteran did not report any history of tinnitus, ear problems or noise exposure in the October 1967 Report of Medical History. The May 1969 separation examination revealed no abnormalities of the ears or drums upon clinical evaluation. In a May 1969 Report of Medical History, the Veteran reported having no history of hearing loss, ear problems or noise exposure. At an October 2011 VA examination, the Veteran reported having a history of hearing loss and tinnitus which he first noticed shortly after separation from his active service. It was noted that the Veteran reported a history of military noise exposure, including explosions, weapons fire, artillery rounds and mortars. Occupational noise exposure included the Veteran's employment at General Motors, wherein he worked in an area where double hearing protection was required for over 20 years. Recreational noise exposure was denied. Specifically, he reported the onset of tinnitus since his separation and that he had gotten used to it. He also noted that tinnitus was constant. He was diagnosed with subjective tinnitus. Tinnitus was found to be as likely as not a symptom associated with hearing loss. The examiner concluded that it was not likely that the Veteran's current tinnitus was related to military noise exposure. In her rationale, she noted that there were no reports of tinnitus in the service treatment reports, the Veteran had significant post-military occupational noise exposure for over 20 years and there was no other medical evidence that tinnitus existed within a reasonable time frame following separation so as to establish a nexus. In a November 2011 statement, the Veteran reported that his statement of having to wear double protection at work, which was noted by the VA examiner, was incorrect. He stated that he performed maintenance work and was not around a lot of loud noise. After a careful review of the record, and resolving all doubt in favor of the Veteran, the Board has determined, based upon the medical and satisfactory lay evidence set forth above, that the Veteran's current tinnitus was incurred during his active service. As noted above, the Veteran's service information supports his reports of exposure to excessive noise during his active service. The October 2011 VA examination confirms that the Veteran has a current tinnitus disability. Due to the subjective nature of [tinnitus], the veteran, as a layperson is competent to testify as to his symptoms. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995). Accordingly, the Board finds that the Veteran's statements that tinnitus symptoms existed since active service are competent and credible evidence of a continuity of symptoms of tinnitus since his active service. Id.; see Baldwin v. West, 13 Vet. App. 1 (1999) (the Board must analyze the credibility of the evidence). Thus, the negative nexus opinion furnished by the VA examiner and the positive nexus to service established by credible lay statements of a continuity of symptoms since active service put the evidence in relative equipoise as to the Veteran's tinnitus. Thus, resolving all reasonable doubt in favor of the Veteran, service connection for tinnitus is warranted. 38 C.F.R. § 3.102 (2012). See also 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for tinnitus is granted. REMAND Throughout the duration of the appeal, the Veteran has maintained that his bilateral hearing loss is related to acoustic trauma from his active service, wherein he served as a combat medic during the Vietnam War. As noted above, the Veteran's DD Form 214 reflects that his MOS was that of a medical specialist, indicates that he served in the Republic of Vietnam and reflects that the Veteran was awarded the CMB. Therefore his service information supports his reports of exposure to excessive noise during his active service. Service treatment reports were absent of any findings or complaints of hearing loss. In the October 1967 induction examination, a clinical evaluation revealed normal findings of the ears and drums. Audiometric testing was performed during this examination. Service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standard Organization (ISO/ANSI) units. Thus, the results of the audiometric testing at the October 1967 induction examination, converted from ASA to ISO/ANSI units, are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 - 0 LEFT 10 15 5 - 10 The Veteran did not report any history of hearing loss, ear problems or noise exposure in the October 1967 Report of Medical History. The May 1969 separation examination revealed no abnormalities of the ears or drums upon clinical evaluation. Audiometric testing was also performed at this time and revealed that the hearing threshold levels in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 - 0 LEFT 0 0 0 - 0 In a May 1969 Report of Medical History, the Veteran reported having no history of hearing loss, ear problems or noise exposure. At an October 2011 VA examination, the Veteran reported having a history of hearing loss and tinnitus which he first noticed shortly after separation from his active service. It was noted that the Veteran reported a history of military noise exposure, including explosions, weapons fire, artillery rounds and mortars. Occupational noise exposure included the Veteran's employment at General Motors, wherein he worked in an area where double hearing protection was required for over 20 years. Recreational noise exposure was denied. Audiometric testing was also performed at this time and revealed that the hearing threshold levels in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 30 30 45 LEFT 20 25 25 30 40 The average pure tone threshold was 32.5 decibels for the right ear and 30 for the left. Maryland CNC speech recognition scores were 94 percent in the right ear and 94 percent in the left ear as well. He was diagnosed with bilateral, normal to moderately severe hearing loss. The examiner concluded that it was not likely that the Veteran's current hearing loss was related to military noise exposure. In her rationale, she noted that, hearing was within normal limits at separation with no change compared to the Veteran's induction and that the Veteran had significant post-military occupational noise exposure for over 20 years. In a November 2011 statement, the Veteran reported that his statement of having to wear double protection at work, which was noted by the VA examiner, was incorrect. He stated that he performed maintenance work and was not around a lot of loud noise. The duty to assist requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. In claims for disability compensation, it requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. 38 C.F.R. § 3.159. A medical examination or medical opinion is deemed to be necessary if the record does not contain sufficient competent medical evidence to decide the claim, but includes competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability, establishes that a veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease manifest during an applicable presumptive period, and indicates the claimed disability or symptoms may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4) (2012). The U.S. Court of Appeals for Veterans Claims (Court) has held the types of evidence that "indicate" that a current disability "may be associated" with military service include credible evidence of continuity and symptomatology such as pain or other symptoms capable of lay observation. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Once VA undertakes the effort to provide an examination with respect to a claim of entitlement to service connection, whether or not statutorily obligated to do so, the duty to assist requires that it be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate when it contains clear conclusions with supporting data and a reasoned medical explanation or analysis. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In this case, the Board observes that the Veteran's lay statements regarding a continuity of hearing loss since his separation from active service and his November 2011 report that he performed maintenance work and was not around a lot of loud noise, had not been considered by the VA examiner in furnishing her opinion. Moreover, the Veteran's November 2011 statement contradicts the VA examination notation that he had post military occupational noise exposure for over 20 years, which was a basis for the examiner's opinion. Finally, the Board points out that the VA examiner's review of the service treatment records did not include the conversion of the induction examination's audiometric testing to ISO/ANSI units. Therefore, the case must be remanded for additional development to include obtaining a supplemental medical opinion. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should arrange for the claims file to be forwarded to the VA examiner who last provided the October 2011 VA opinion of the Veteran's bilateral hearing loss, or, if this examiner is not available, the claims filed should be forwarded to a similar specialist, to review the claims file. The claims file, to include a copy of this remand, must be made available prior to completion of the evaluation. The examiner must annotate the examination report to indicate review of pertinent evidence in the claims file. (Please review and note: (1) the service treatment records with the conversion of the induction examination's audiometric testing to ISO/ANSI units; (2) the fact that the Veteran's report of noise exposure in service is supported by his service information; and (3) the Veteran's lay statements of a continuity of hearing loss since separation from active service and his November 2011 report that he had no post-occupational noise exposure). The examiner is asked to please note that the Veteran's lay statements of a continuity of symptoms since service and his reports of having no post military occupational noise exposure are competent evidence. The examiner is then asked, to furnish an opinion with respect to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed bilateral hearing loss: (i) had its onset during his period of active duty from October 1967 to May 1969; or, (ii) that such disorder was caused by any incident or event that occurred during such period (i.e. the conceded noise exposure in-service)? Please explain the reasons for any opinions rendered and include a discussion of the relevant evidence. In particular, the examiner is asked to address the Veteran's noise exposure in service and his lay statements regarding a continuity of symptoms and that he had no post military occupational noise exposure in the rationale and discuss whether this changes her earlier opinion with reasons as to why or why not. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. If an opinion cannot be expressed without resort to speculation, discuss why such is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. 2. Following completion of the foregoing, the AMC/RO must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, the AMC/RO should determine whether the examiner has responded to all questions posed. If not, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2012). 3. After the requested development has been completed, the AMC/RO should readjudicate the merits of the Veteran's claim based on all the evidence of record, including any additional information obtained as a result of this remand. If the benefits sought on appeal remain denied, the Veteran and his representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. 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). ______________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs