Citation Nr: 1319464 Decision Date: 06/17/13 Archive Date: 06/27/13 DOCKET NO. 09-50 434 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral tinnitus. 2. Entitlement to a compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Zobrist, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1970 to September 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in February 2009, a statement of the case was issued in October 2009, and a substantive appeal was received in December 2009. In October 2012, a Board hearing was held before the undersigned. The Board notes that the Veteran has submitted additional pertinent evidence to the Board and has waived his right to have the RO initially consider it. 38 C.F.R. § 20.1304(c). The issue of entitlement to a compensable rating 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's tinnitus manifested during his active duty service. CONCLUSION OF LAW The Veteran's tinnitus was incurred in service. 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 As a preliminary matter, the Board notes that it has reviewed all of the evidence in the Veteran's claims file and in "Virtual VA" (VA's electronic data storage system), with an emphasis on the evidence relevant to the matter on appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, 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. The Veteran claims entitlement to service connection for bilateral tinnitus. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. A veteran is competent to describe symptoms that he experienced in service, or at any time after service, when the symptoms he perceived, that is, experienced, were directly through the senses. 38 C.F.R. § 3.159 (competent lay evidence means 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); Layno v, Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Here, the Veteran is competent to report when he first experienced ringing in his ears. He is also competent to report a continuity of symptomatology since service. The Veteran was afforded a VA audiological examination in January 2008. The examiner found that tinnitus was not related to service because the Veteran stated that his tinnitus did not begin until he was in his 30s, after service, and because the Veteran's service treatment records (STRs) were silent for complaints of or treatment for tinnitus. However, the Veteran credibly explained later that he had inadvertently answered the VA examiner's question incorrectly. In both his February 2009 notice of disagreement and a written statement submitted in October 2012, the Veteran stated that he had experienced tinnitus since basic training but that it was in his 30s, the timeframe he reported to the VA examiner, that his tinnitus worsened to the point of interfering with his work performance. Furthermore, the Veteran asserts that his STRs contain several other omissions of medical complaints and treatments received and should, therefore, not be construed to indicate a lack of in-service incidence. Specifically, the Veteran states that he was not asked about tinnitus in service and that his STRs do not reflect a number of other conditions for which he received treatment in service, including a chin boil, a urinary tract infection, and the flu. This credible lay evidence calls into question whether the VA examination was based on an accurate factual predicate and renders the VA medical opinion less probative. See Reonal v. Brown, 5 Vet. App. 458, 460 (1993) (medical opinion based on inaccurate factual premise has no probative value); see also West v. Brown, 7 Vet.App. 70, 77-78 (1994) (holding that an examination that relies on an inaccurate history is inadequate for rating purposes); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992) (the Board must evaluate the credibility and weight of the history upon which a medical opinion is predicated). However, given that, as discussed below, the Board is granting the benefit sought, remand for an adequate examination would be an unnecessary delay and use of VA resources with no benefit to the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994. The Veteran submitted a "buddy statement" from L.T., his basic training Squad Leader, recalling the Veteran's complaints of ringing ears during basic training. This evidence supports the Veteran's lay assertions that his tinnitus began in service. Thus, taking the evidence as a whole, although the record contains a negative nexus opinion, the Board finds credible and probative the Veteran's statements asserting a continuity of symptomology since service. After considering the Veteran's competent and credible lay testimony, and in recognition of the fact that VA has already essentially conceded noise exposure in granting service connection for bilateral hearing loss, the Board finds that the evidence, as it stands, is at least in equipoise on the question of bilateral tinnitus. As such, resolving reasonable doubt in the Veteran's favor, entitlement to service connection for bilateral tinnitus is therefore warranted. 38 U.S.C.A. § 5107(b). There is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations in this case since there is no detriment to the Veteran as a result of any VCAA deficiency in view of the fact that the full benefit sought by the Veteran is being granted by this decision of the Board. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). The Board notes that the RO letter in September 2007 informed the Veteran of the manner in which disability ratings and effective dates are assigned. The RO will take such actions in the course of implementing this grant of service connection, and the Veteran may always file a timely notice of disagreement if he wishes to appeal from those downstream determinations. ORDER Entitlement to service connection for tinnitus is warranted. To this extent, the appeal is granted. REMAND In a January 2008 rating decision, the RO, inter alia, granted entitlement to service connection for bilateral hearing loss and assigned a noncompensable disability rating. An October 2009 private audiology examination notes the Veteran's complaints of increased. In an April 2011 progress note, a VA audiologist recommended amplification. At the Veteran's October 2012 Board hearing, he testified that his bilateral hearing loss disability has worsened since his January 2008 VA audiology examination. The Veteran is entitled to a new examination where there is evidence that his disability has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a new VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991); 38 C.F.R. § 3.327(a) (2012); see also VAOPGCPREC 11-95 (1995) (a new examination is appropriate when there is an assertion of an increase in severity since the last examination). Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for an audiology examination to determine the current degree of severity of his bilateral hearing loss disability. The claims file must be made available to the examiner for review. The examiner should conduct all indicated tests and studies, to include a puretone threshold test and a speech discrimination test using the Maryland CNC word list. The examiner should also address any functional impairment caused by the Veteran's bilateral hearing loss disability. 2. After completing the above, and any other development deemed necessary, the RO should readjudicate the Veteran's claim. The Veteran and his representative should be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter that 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). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs