Citation Nr: 1325188 Decision Date: 08/08/13 Archive Date: 08/13/13 DOCKET NO. 10-36 281 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: John S. Berry, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to August 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In August 2011, the Veteran testified at a hearing before the undersigned Veterans' Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. In January 2012, the Board denied the Veteran's claims to establish service connection for bilateral hearing loss and tinnitus. The Veteran appealed the Board's January 2012 decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a September 2012 Order granting a September 2012 Joint Motion for Remand (JMR), the Veteran's appeal has been remanded to the Board. A letter was sent to the Veteran and former representative on November 28, 2012, in which he was given 90 days from the date of the letter to submit additional argument or evidence in support of his appeal prior to the Board's readjudication. The Veteran and his private attorney have since submitted additional evidence, and his claims have been returned to the Board. 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 evidence of record reflects a current diagnosis of bilateral tinnitus, as well as competent and credible reports of frequent and persistent symptomatology congruent with this diagnosis dating back to the Veteran's active duty. CONCLUSION OF LAW The criteria for service connection for bilateral tinnitus are met. 38 U.S.C.A. §§ 101(21), (24), 106, 1101, 1110, 1112, 1113, 1116, 1154(a) 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303(a) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants entitlement to service connection for tinnitus, which constitutes a complete grant of the Veteran's claim. Therefore, no discussion of VA's duty to notify or assist is necessary. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by showing inception or aggravation during service. 38 C.F.R. § 3.303(a). 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). VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of 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 requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau, v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Analysis In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Veteran asserts that he has constant bilateral tinnitus as a result of in-service noise exposure, including exposure to small arms fire, 105 millimeter tank guns, and tank engines. In the present case, the Veteran was initially diagnosed with constant, bilateral tinnitus at a February 2010 VA audiological examination. Accordingly, element (1) has been demonstrated. The Veteran's service treatment records are devoid of any instance of complaints of or treatment for symptomatology congruent with tinnitus, and he was not diagnosed with such during his active duty. However, under 38 C.F.R. § 3.303(a), the Board notes that being exposed to the loud noise caused by small arms fire, tank guns and tank engines is consistent with the circumstances, condition, and hardships of the Veteran's service. Also, because the Veteran's reports of in-service noise exposure are congruent with his Military Occupational Specialty (MOS) as an Armor Crewman, the Board finds that the Veteran is both competent and credible to report on what he can perceive such as ringing in his ears while on active duty. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Further tinnitus is capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002). The Board finds the Veteran's statements that he experienced noise exposure and tinnitus in service to be credible. In light of above, element (2) has been demonstrated. Concerning element (3), evidence of a nexus between the Veteran's currently-diagnosed tinnitus and his in-service noise exposure, there are several nexus opinions of record. During the pendency of the appeal, the RO obtained four opinions concerning whether the etiology of the Veteran's tinnitus. The February 2010 VA audiologist opined that the Veteran's current tinnitus was less likely as not related to his in-service noise exposure. However, as stated by the examiner, this opinion is based on a lack of documentation of in-service symptomatology congruent with a diagnosis of tinnitus, and the Court has firmly held that such opinions are inadequate. Bloom v. West, 12 Vet. App. 185, 187 (1999). Further, it appears that the February 2010 examiner did not take into account the Veteran's complaints of in-service tinnitus, which the Board has found to be competent and credible, in formulating the opinion. This is contrary to the Court's holding in Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Because of the deficiencies of the February VA examiner's opinion, the Veteran was provided another VA examination in connection with his claim in May 2010. The May 2010 VA examiner stated that he could not resolve the matter of the etiology of the Veteran's tinnitus without resort to mere speculation. Because the May 2010 VA examiner did not explain the basis for this opinion, it is inadequate for the purpose of adjudicating the Veteran's claim. Jones v. Shinseki, 23 Vet. App. 382 (2010). Although additional medical opinions addressing the etiology of the Veteran's tinnitus were obtained by the RO in June 2010 and July 2010, the Board notes that, like the February 2010 VA examiner's opinion, these opinions are inadequate because they are based on a lack of evidence of in-service symptoms of tinnitus without regard to the Veteran's competent and credible statements to the contrary. As such, these opinions are also inadequate for the purpose of adjudicating the Veteran's claim. Bloom v. West, 12 Vet. App. 185, 187 (1999); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). In support of his claim, the Veteran submitted an August 2011 audiogram and opinion from Dr. Foss, a private audiologist, which states that it is "quite possible" that the Veteran's current tinnitus is the result of his in-service noise exposure. The Court has held that opinion couched in terms of possibility, such as this one, carry little probative weight. Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523; see also Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Also, as agreed by the parties in the September 2012 JMR, the Board discounted the probative weight of the August 2011 opinion from Dr. Foss without addressing whether further clarification of such was necessary as per the Court holding in Savage v. Shinseki, 24 Vet. App. 259, 269 (2011). However, as will be explained below, the Board is granting the Veteran's claim in full on grounds other than medical nexus. Accordingly, a remand for further clarification of the August 2011 VA opinion as it relates to the Veteran's tinnitus claim is not necessary. 38 C.F.R. § 3.303; Counts v. Brown, 6 Vet. App. 473, 478 - 9 (1994); Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (VA's statutory duty to assist is not a license for a "fishing expedition"); Mariano v. Principi, 17 Vet. App. 305, 312 (2003). In the present case, Board finds that the medical evidence of record is consistent with the Veteran's reports of experiencing frequent and persistent symptomatology consistent with a diagnosis of tinnitus during and since service. 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. § 1154(a) (requiring VA to include in its service connection regulations that due consideration be given to "all pertinent medical and lay evidence"). Here, there is ample evidence, to include the Veteran's testimony at the August 2011 hearing, the Veteran's January 2010 "tinnitus questionnaire," and the February 2010 and May 2010 VA examination reports, reflecting the Veteran's assertions that his tinnitus was present during his service and became more noticeable within the initial post-service year. The Veteran's assertions concerning experiencing frequent and persistent tinnitus since service have been consistent throughout the appeal period. As noted above, the Veteran is certainly competent to report symptoms which he has experienced first-hand. Jandreau, v. Nicholson, 492 F.3d 1372, 1377 (2007). Because the reported symptoms associated with tinnitus, ringing in the ears, and medical history conveyed by the Veteran are congruent with the medical evidence, the Board finds his statements to be credible and highly probative in establishing frequent and persistent tinnitus symptomatology since service. Washington, supra. Therefore, in view of the lay and medical evidence of frequent and persistent tinnitus symptomatology since service and the lack of any evidence to the contrary, the Board finds that there is adequate evidence of record that the Veteran's frequent and persistent tinnitus symptoms during and since his active duty are related to his currently diagnosed tinnitus. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). Accordingly, the Board finds that service connection for this should be granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). ORDER Entitlement to service connection for tinnitus is granted. REMAND After a review of the record, to include the parties September 2012 JMR, the Board concludes that additional development is necessary with respect to the Veteran's bilateral hearing loss claim so that VA may fulfill its duty to assist the Veteran in substantiating his claim. In the January 2012 decision, the determined that the VA examiners' opinions date in February 2010, May 2010, June 2010, and July 2010, were more probative than Dr. Foss's August 2011 opinion concerning the etiology of the Veteran's bilateral hearing loss. In making this determination, the Board noted that, unlike Dr. Foss, the VA examiners had reviewed the Veteran's complete VA claims file and taken into account his service treatment records. In the September 2012 JMR, the parties agreed that the Board erred in the January 2012 decision by discounting Dr. Foss's August 2011 opinion without considering whether further clarification of such was necessary pursuant to the Court's holding in Savage v. Shinseki, 24 Vet. App. 259, 269 (2011). In Savage, the Court held that, pursuant to 38 U.S.C.A. § 5103A(a), when a private examination report "reasonably appears" to contain information necessary to properly decide a claim but is "unclear" or "not suitable for rating purposes," and the information reasonably contained in the report otherwise cannot be obtained, VA has a duty to either (1) ask the private examiner to clarify the report, (2) request that the claimant obtain the necessary information to clarify the report, or (3) explain why such clarification is unreasonable. Dr. Foss stated that the Veteran's DD-214 and "some medical records" were reviewed in connection with the August 2011 opinion. In the September 2012 JMR, the parties agreed that further analysis, and possibly development, was necessary in light of the uncertainty concerning the extent of the evidence reviewed by Dr. Foss in connection with the August 2011 opinion. This was found to be critical in the present case because the Board discounted Dr. Foss's August 2011 opinion based largely on the fact that the VA examiners, unlike the private audiologist, had reviewed the complete record. As such, on remand, the RO/AMC must contact the Dr. Foss and request that he provide a clarifying statement concerning what evidence (i.e., the entire claims file, VA examination report(s), VA opinion(s), complete or partial service treatment records, etc...) were review in connection with the August 2011 opinion. Further, in a February 2013 statement, the Veteran asserted that the VA opinions of record were inadequate because the examiners did not consider that the Veteran remained in service for five months after his March 1969 pre-separation examination. Accordingly, although the Veteran did not demonstrate bilateral hearing loss in March 1969, the VA examiners' opinions stating that he did not have bilateral hearing loss upon separation from service are untrue. In sum, the VA examiners' opinions were provided without consideration of the five-month time gap between the Veteran's pre-separation examination and his actual separation of service, during which he continued to be exposed to excessive noise. In light of the Veteran's February 2013 assertions, the Board concludes that the Veteran should be provided another VA examination in connection with his bilateral hearing loss claim, as the prior VA opinions of record are inadequate for the purpose of adjudicating the claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the case is REMANDED for the following actions: 1. Contact Dr. Foss at The Hearing Clinic in Grand Island, Nebraska and ask that he provide a statement concerning what specific medical evidence was reviewed in connection with his August 2011 opinion. The clinician's response(s) should be associated with the claims file. If Dr. Foss does not respond after a reasonable period, the Veteran and his private attorney should be so advised. 2. Thereafter, schedule the Veteran for a VA examination with an appropriate examiner to determine the etiology of any current hearing loss disability. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. The examiner must record all pertinent medical complaints, symptoms, and clinical findings, and must review the results of any testing prior to completion of the report. Following a review of the claims file, to include service and post-service treatment records, and the examination results, the examiner is requested to offer an opinion concerning whether it is at least as likely as not (a 50 percent probability or more) that the Veteran's bilateral hearing loss is related to his active duty, to specifically include the Veteran's in-service exposure to excessive noise from by small arms fire, tank guns and tank engines. In providing this opinion, the examiner must note and address the fact that the Veteran's pre-separation examination took place approximately five month prior to his actual separation from service, and he continued to be exposed to excessive noise during this time period. The examiner also cannot rely solely on the absence of hearing loss in service to support a negative nexus opinion. A complete rationale for all opinions must be provided. 3. Notify the Veteran that he must report for the examination and cooperate in the development of the claim. Failure to report for a VA examination without good cause may result in denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 4. After undertaking the development above, readjudicate the Veteran's claim. If any benefit sought on appeal remains denied, provide a Supplemental Statement of the Case to the Veteran and his private attorney and allow an appropriate period of time in which to respond. Then, return the appeal to the Board. The Veteran 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). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs