Citation Nr: 1321702	
Decision Date: 07/08/13    Archive Date: 07/18/13

DOCKET NO.  10-01 791	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


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


ATTORNEY FOR THE BOARD

M. Espinoza, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1961 to November 1963.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in January 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. 

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's tinnitus is as likely as not attributable to his active military service.


CONCLUSION OF LAW

The criteria for service connection for tinnitus are 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

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2012).  In this decision, the Board grants service connection for tinnitus.  This represents a complete grant of the benefit sought on appeal for this issue.  Thus, any deficiency in VA's compliance with this issue is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary.

The Veteran contends that service connection is warranted for tinnitus.  He believes the ringing in his ears is attributable to exposure to loud noise during active military service.  The Veteran asserts that the noise exposure occurred when he was a truck driver and delivered ammunitions to a firing range.

Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012).  To establish service connection for a present disability, the Veteran must show:  (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  In service connection claims consideration must be given to all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. § 3.303(a).

In this case, the Veteran satisfies the existence of the present disability standard for his tinnitus claim.  Here, the Veteran reported that he has experienced ringing in the ears.  In January 2009, the Veteran underwent a VA audiological examination in connection with the claim and was diagnosed with tinnitus.

The evidence of record supports a finding that the Veteran sustained exposure to loud noises while in service.  Specifically, the Veteran's Form DD-214 lists his military occupation as a truck driver and the Veteran describes that he worked as a truck driver delivering ammunitions to a firing range then remained during the maneuvers to recover the brass and unused ammunitions.  As the Veteran's service records are supportive of his competent and credible contentions regarding exposure to loud noises, the element of the incurrence of an in-service injury is met for tinnitus.

At the January 2009 VA examination the Veteran reported that tinnitus first began in 1962 but he did not recall an exact date.  Tinnitus is the type of condition that a lay person can identify.  Charles v. Principi, 16 Vet. App. 370, 374 (2002).  Here, the Veteran reports ringing in his ears which is a typical symptom of tinnitus, a symptom which is capable of being observed and described by a layperson.  The Veteran is credible with respect to his assertions of experiencing tinnitus in service and consistently since service because his statements are consistent in that he maintains the ringing in his ears began while he was in service.  The Veteran filed his claim for tinnitus in July 2008 and he indicated the tinnitus began in 1961.  In an August 2008 statement the Veteran states the ringing in his ears began in 1962.  VA treatment record dated August 2008 also states the Veteran thinks his hearing problems began during service.  The Veteran's January 2009 VA examination notes the tinnitus began in 1962.  The Veteran also states he developed ringing in his ears during service both on his April 2009 notice of disagreement and on the January 2010 appeal form.  These are consistent statements that show the Veteran maintains the tinnitus began during service.  Additionally, the Veteran is credible as he provided an explanation as to why he did not seek treatment earlier and why he did not file a claim earlier.  Although there is a substantial gap between the exposure to loud noise in service in 1961 or 1962 and the Veteran's claim filed in 2008.  The Veteran accounts for this delay in the April 2009 notice of disagreement as he explains he did not go to the doctor because he "was young and not very smart."  He provided a statement in August 2008 that he thought the tinnitus was something he had to live with and that he did not realize he may qualify for VA benefits until he read it in the newspaper.  


Here, the Board finds the Veteran's statements as to the onset of his hearing tinnitus to be credible and his statements are accorded significant evidentiary weight.  Moreover, the VA examiner's explanation as to why the Veteran's tinnitus is not service connected is flawed.  The January 2009 VA examination states that the Veteran's tinnitus is not caused by or a result of service and that the Veteran's hearing loss and tinnitus are likely of the same etiology.  The January 2009 examination states that rationale for this opinion is that the Veteran's separation hearing evaluation showed normal thresholds.  However, the United States Court of Appeals for Veterans Claims (Court) has held that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Additionally, the medical opinion is of little evidentiary value because it lacks supporting analysis that the Board can weigh against contrary evidence.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Thus, the Veteran's credible statements as to the onset of his tinnitus are sufficient to outweigh the opinion of the examiner in the January 2009 VA examination.

A Veteran's lay statements may be sufficient evidence in any claim for service connection.  38 C.F.R. § 3.303(a) ("Each disabling condition shown by a Veteran's service records, or for which he seeks a service connection [,] must be considered on the basis of . . . all pertinent medical and lay evidence"; see 38 U.S.C.A. § 1154(a) (requiring VA to include in its service connection regulations that due consideration be given to "all pertinent medical and lay evidence").
 
The Board finds that the Veteran is both competent and credible to report tinnitus in service and since service.  At the least, this evidence raises reasonable doubt as to whether the Veteran's tinnitus is etiologically related to noise exposure in service.  When resolving the benefit of the doubt in the Veteran's favor, the Board finds that tinnitus is in fact related to service.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  Thus, the Board concludes that service connection for tinnitus is warranted.  


ORDER

Entitlement to service connection for tinnitus is granted.


REMAND

A remand is necessary in this case so VA can meet its duty to assist the Veteran in obtaining evidence to substantiate his claim of entitlement to service connection for bilateral hearing loss.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  The Veteran asserted that service connection for bilateral hearing loss is warranted on a direct basis in his initial claim.  On the appeal form dated January 2010 the Veteran asserted his bilateral hearing loss was secondary to his tinnitus.  Service connection may be granted for a disability that is proximately due to or the result of an established service connected disability. 38 C.F.R. § 3.310 (2012).  

The Board notes that the Veteran has not been provided notice of all of the laws and regulations pertinent to claims brought under the theory of secondary service connection per 38 C.F.R. § 3.310.
Further, the Board concludes that the January 2009 VA examination is not adequate for the purpose of adjudicating the Veteran's claims.  In January 2009, the Veteran underwent a VA audiological examination.  The examiner diagnosed the Veteran with bilateral sensorineural hearing loss.  Audiometric testing revealed puretone thresholds and speech recognition thresholds were reflective of hearing impairment for VA purposes under the requirements of 38 C.F.R. § 3.385.  The examiner provided an opinion that the Veteran's bilateral hearing loss was not caused by or a result of service.  The examiner relies on the absence of hearing loss during service as the primary rationale for the opinion.

In view of this opinion, the Board finds that the bilateral hearing loss claim should be remanded to the agency of original jurisdiction to schedule another VA audiological examination and request a medical opinion.  As described above, the Court has held that the lack of in-service evidence of hearing loss is not fatal to a claim for service connection.  Ledford, 3 Vet. App. at 89.  Evidence of a current hearing loss disability and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  Additionally, the examiner did not attribute the bilateral hearing loss to any other cause.  Thus, on remand, an opinion should be provided as to whether the Veteran has bilateral hearing loss for VA purposes that had its clinical onset during, or is otherwise related to, his active military service.

Finally, as the Veteran's claims are being remanded for other matters, the Board concludes updated VA treatment records should be obtained and associated with the record.  The record also indicates that the Veteran may have had an audiology examination at Audio Acoustics Hearing, and those records should be obtained, if possible.

Accordingly, the case is REMANDED for the following action:

1.  Send the Veteran a notice letter which provides an explanation as to the elements necessary to substantiate a claim under the theory of secondary service connection per 38 C.F.R. § 3.310.

2.  Obtain all relevant VA treatment records from Big Spring, Texas VA Medical Center and any associated outpatient clinic records dated from August 2008 to the present and associate them with the claims folder.  

3.  Obtain the necessary authorization from the Veteran and then attempt to obtain records of any hearing evaluation completed at Audio Acoustics Hearing.  All attempts to obtain these records must be documented in the claims file.

4.  Thereafter, schedule the Veteran for a VA examination in order to ascertain the nature and severity of his bilateral hearing loss.  The entire claims file should be made available for review, to include a complete copy of this remand, and the examination report should reflect that such review occurred.  

The examiner is requested to identify auditory thresholds, in decibels, at frequencies of 1000, 2000, 3000, and 4000 Hertz.  A Maryland CNC Test should also be administered to determine speech recognition scores.  The examiner should consider the effect of bilateral hearing loss on occupational and daily functioning of the Veteran.  Upon examination of the Veteran and review of the record, the examiner must respond to the following:

a.  If bilateral hearing loss is diagnosed, opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the hearing loss is related to active service or any incident of service.

b.  If bilateral hearing loss is diagnosed, and the previous opinion is negative, opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the hearing loss is caused or aggravated by the Veteran's service-connected tinnitus.

The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. 

Aggravation is defined as a permanent worsening beyond the natural progression of the disability.

The examiner must provide a complete rationale for any opinion expressed, based on the examiners clinical experience, medical expertise, and established medical principles.  The examiner is advised that the lack of documentation of hearing loss in service treatment records or a normal separation examination is not a sufficient rationale for a negative opinion. 

5.  The RO must notify the Veteran that it is his responsibility to report for the examinations and to cooperate in the development of the claims.  The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012).  

6.  Finally, after undertaking any other development deemed appropriate, readjudicate the issues on appeal. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an 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 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).



______________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs