Citation Nr: 1318649 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 08-31 093 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant is a Veteran who had active service from January 1970 to April 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision by the Seattle, Washington Department of Veterans Affairs (VA) Regional Office (RO). In May 2013 a videoconference hearing was held before the undersigned; a transcript is associated with the record. The Veteran, who served in Vietnam, filed a claim of service connection for type II diabetes mellitus in November 2011. Although it appears that the agency of original jurisdiction (AOJ) may have initiated action on this claim, the status of the claim is not clear from the record available to the Board. This issue was previously referred by the Board to the AOJ; because its status is unclear, it is again REFERRED 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 bilateral hearing loss is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. FINDING OF FACT It is reasonably shown that the Veteran has tinnitus which began in service and has persisted. CONCLUSION OF LAW Service connection for tinnitus is warranted. 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 Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. However, inasmuch as the benefit sought is being granted, there is no reason to belabor the impact of the VCAA on the matter; any notice defect or duty to assist omission is harmless. Accordingly, the Board will address the merits of the claim. Legal Criteria, Factual Background, and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of a current claimed disability; evidence of incurrence or aggravation of a disease or injury in service; and evidence of a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Initially, the Board notes that it has reviewed all the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system). Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran's service treatment records (STRs) reflect that his military occupational specialty was in field artillery. His STRs, to include on April 1972 service separation examination report, are silent for complaints, findings, treatment, or diagnosis related to tinnitus. A January 2007 private audiology report notes the Veteran's report of tinnitus, which he attributed mainly to his exposure to artillery fire in service. On June 2008 VA audiology evaluation, the examiner noted the Veteran's history of noise exposure in service without hearing protection, in addition to postservice construction work with hearing protection. The examiner noted that the Veteran experiences recurrent tinnitus. The examiner opined (without adequate explanation of rationale) that the Veteran's tinnitus is less likely than not caused by his military service. In statements received in October 2010 the Veteran and a former coworker indicated, in essence, that his exposure to noise trauma in his [construction] work postservice was minimal; they explained that upon their arrival at the construction sites, the type of work that involved loud noise was usually completed. The coworker also stated that the Veteran wore ear plugs on the job site. At a May 2013 videoconference hearing the Veteran testified that his tinnitus began while he was in basic training. He related that he was exposed to loud noises in his artillery unit, including from 8-inch Howitzers, and did not have hearing protection. He explained that when he worked in construction postservice, he wore ear protection and usually got to work after the work involving loud noise was completed. The Veteran's wife testified that she has been aware that he has experienced ringing in his ears since service. Given the Veteran's service in field artillery, it is shown, and not in dispute, that he was exposed to noise trauma in service. As tinnitus is a disability capable of lay observation (see Charles v. Principi, 16 Vet. App. 370, 374) (2002)), and its presence has been reported by the Veteran and acknowledged by VA medical care-providers, it is also shown that he has tinnitus. What remains necessary to substantiate his claim of service connection for tinnitus is evidence of a nexus between such disability and his service/exposure to noise trauma therein. One method of establishing nexus (and service connection) is by showing inception of the disability for which service connection is sought during service. See 38 C.F.R. § 3.303(a). The Veteran alleges his tinnitus began in service and has persisted since. As his service medical records do not note tinnitus, and the Board must look to the other medical and lay evidence of record pro and con in this matter. The fact that tinnitus was not noted in the STRs does not preclude that it may have been present but not reported to medical care providers. Consequently, the credibility of the Veteran's accounts of onset of tinnitus in service is a critical factor in this matter. In support of the Veteran's claim are his consistent accounts of inception of tinnitus in service, and the sworn testimony of his wife stating that he has suffered from tinnitus since service. In addition, a postservice coworker has provided a statement supporting that while the Veteran worked in construction, his work did not frequently entail exposure to loud noises, and that on those occasions when he was so exposed, he wore hearing protection. The Board finds no reason to reject these statements as not credible. Against the Veteran's claim is the June 2008 VA examiner's opinion that the tinnitus is unrelated to service. However, the examiner did not offer any explanation of rationale, which renders this opinion inadequate. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Weighing the evidence outlined above, and resolving any remaining reasonable doubt in the Veteran's favor, as required under 38 C.F.R. § 3.102, the Board finds that the record reasonably shows that his tinnitus had its inception in service. The requirements for establishing service connection are met. Service connection for tinnitus is warranted. ORDER Service connection for tinnitus is granted. REMAND The Veteran asserts that his current bilateral hearing loss is related to exposure to noise trauma in service. His STRs show that on April 1972 service separation examination, his whispered voice hearing was 15/15 in each ear. Bilateral sensorineural hearing loss was diagnosed on June 2008 VA audiological evaluation. The VA examiner opined that the Veteran's hearing loss was less likely than not related to service. He cited to his clinical experience and the evidence reviewed/provided by the Veteran as the basis for this opinion. That explanation addresses his qualification to offer an opinion; it does not explain the reasoning for the opinion. Therefore, the opinion is inadequate. See Stefl, 21 Vet. App. At 123 ("A mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion."). Consequently, a remand to secure an adequate nexus opinion is necessary. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (once VA undertakes the effort to provide an examination, it must provide an adequate one). Accordingly, the case 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) (2012). Expedited handling is requested.) 1. The RO should arrange for an audiological evaluation of the Veteran to determine the likely etiology of his hearing loss. The entire record, to include this remand, must be reviewed by the examiner in connection with the examination. The examiner should note that the Veteran's military occupation evidences that he was exposed to hazardous noise levels in service. Based on a review of the record, and examination and interview of the Veteran, the examiner must offer opinions that respond to the following: What is the most likely etiology for the Veteran's bilateral hearing loss disability? Specifically, is it at least as likely as not (a 50% or better probability) that such disability is related to his exposure to noise trauma in service? The examiner must explain the rationale for all opinions, with citation to supporting clinical data, as indicated. If it is determined that the hearing loss is not related to the Veteran's service, the examiner should identify the factor(s) considered to be the more likely etiology for the hearing loss. 2. The RO should then review the record and readjudicate this claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further 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 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). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs