Citation Nr: 1315294	
Decision Date: 05/09/13    Archive Date: 05/15/13

DOCKET NO.  09-41 263	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Evan M. Deichert, Associate Counsel
INTRODUCTION

The Veteran served on active duty from August 1963 to June 1967.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which denied entitlement to service connection for bilateral hearing loss and tinnitus.   

The Veteran testified before a Decision Review Officer at the RO in December 2009.  A transcript of that hearing has been added to the claims folder.  

The issue of entitlement to 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

The Veteran suffered from tinnitus during his active service, and his current tinnitus is related to his in-service condition.  


CONCLUSION OF LAW

The criteria for service connection for tinnitus have been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  The Board is granting in full the benefit sought on appeal.  Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed.  

Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) ; see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  

Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).  This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis.  Jandreau, 492 F.3d at 1377.

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant.

The Veteran currently suffers from tinnitus.  The Veteran has stated that he suffers from this condition, and both a July 2008 VA examination and a September 2009 VA audiological consult diagnose the Veteran as suffering from this condition.  

The Veteran's service treatment records do not show that he suffered from this condition in service.  However, the Veteran's service personnel records reflect that he served aboard a ship for more than three-and-a-half years.  In his December 2009 hearing, the Veteran stated that he served in the engine room of a destroyer and was not provided with hearing protection.  The Veteran was thus exposed to noise during his active service.  

The examiner from the Veteran's July 2008 VA examination opined that it was less likely than not that the Veteran's tinnitus is related to his active service.  

In letters of December 2008 and April 2011, in his September 2009 VA audio consult, and in his December 2009 hearing, the Veteran stated that he informed a Naval physician at his discharge that he was suffering from intermittent tinnitus, but that the examining physician told him not to worry about it and that it would go away.  The Veteran stated that his tinnitus did not dissipate and has only worsened since then.  

Tinnitus is a condition susceptible to lay observation, so the Veteran is competent to state that he suffered from this condition and to provide the date of its onset.  Further, given the Veteran's numerous, consistent statements, the Board finds his account of suffering from tinnitus during his active service and continuously since to be credible.  

Despite the opinion of the VA examiner, there is not a preponderance of the evidence against the claim.  Service connection for is warranted.  


ORDER

Entitlement to service connection for tinnitus is granted. 


REMAND

The Veteran underwent a VA examination in July 2008.  The examiner from that examination diagnosed the Veteran as suffering from bilateral hearing loss.  The examiner also opined that it was less likely than not that the Veteran's bilateral hearing loss is related to his active service, noting "a lack of evidence in the claims file and the lack of proximity between the dates of service" and his examination.  

This opinion is inadequate.  First, in his opinion, the examiner did not address the Veteran's history of in-service noise exposure.  

Second, though the examiner stated that there was a "lack of evidence" of the Veteran's hearing loss in the claims file, the examiner did not discuss positive evidence submitted by the Veteran.  The Veteran submitted the results of numerous hearing tests performed in conjunction with his previous job, dating from March 1985 to July 2006.  These tests show that the Veteran had diminished hearing acuity even as of March 1985, some 20 years prior to his claim.  

Given the inadequacy of the opinion, the Veteran's claim must be remanded in order that an adequate opinion regarding the etiology of the Veteran's bilateral hearing loss be provided.  



Accordingly, the case is REMANDED for the following actions:

1.  Schedule the Veteran for a VA audio examination by an appropriate professional.  The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner.  If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review.

The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any manifested hearing loss is related to his active service.  In this opinion, the examiner must discuss the Veteran's history of in-service noise exposure, as well as the hearing tests performed by the Veteran's previous employer.  

The examination report must include a complete rationale for all opinions expressed.  If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).

2.  Review the claims file to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated.  Then readjudicate the claim on appeal.  If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran an appropriate period of time to respond.  The case is to then be returned to the Board for further appellate review.

The appellant 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).




______________________________________________
RONALD W. SCHOLZ 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs