Citation Nr: 1326619 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 11-24 831 ) 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 service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from September November 1966 and October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 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 Resolving reasonable doubt in the Veteran's favor, he developed bilateral tinnitus in service, which has continued to the present. CONCLUSION OF LAW With resolution of reasonable doubt in the appellant's favor, tinnitus was incurred during active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304 REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Given the Board's favorable disposition of the claim of entitlement to service connection for tinnitus, the Board finds that failure to discuss VCAA compliance will result in harmless error to the Veteran. Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease 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). Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. see Savage v. Gober, 10 Vet. App. 488. at 495-96 (1997); see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Here, the Veteran argues that during his service as an electrician systems technician he was exposed to hazardous noise in service. He reported wearing some hearing protection around loud engines in service, but that he frequently would be around loud noise which would cause him to hear as though he were "underwater" for some time afterward. On several occasions in the record, the Veteran has stated that he had complaints about his tinnitus beginning in roughly 2005. The January 2010 VA examiner noted the Veteran's report of gradual onset tinnitus five years prior. He again noted during VA treatment that his "problems" with tinnitus began 6-7 years prior. Subsequent to receiving his Statement of the Case (SOC), the Veteran explained that he was reporting to VA care providers that he was diagnosed with tinnitus in roughly 2005, but that he had suffered from symptoms since service. He stated that he did not know the name "tinnitus" to explain the hum in his ears until 2005. As tinnitus is a subjective disorder, the Veteran is competent to diagnose tinnitus and to provide a statement as to when it began. As his service duty MOS was as an avionics electrician, it is highly probable that he was exposed to hazardous noise, and thus his exposure is conceded. While the Veteran did not provide strong statements regarding the onset of his tinnitus prior to the issuance of his SOC, the Board with resolve reasonable doubt in his favor and grant entitlement to service connection for bilateral tinnitus. ORDER Entitlement to service connection for bilateral tinnitus is granted. REMAND In September 2009, the Veteran underwent audiogram testing at a VA facility in Daytona Beach, Florida. The claims file contains a record of the audiology consultation which noted a "very mild 'dip' at 4kHz in the right ear and a mild drop at the 6-8kHz in the left ear." The note indicated that the audiogram results were located in "Tools-Audiogram Display." The audiogram results are not contained in the claims file or on Virtual VA. On remand, the RO/AMC should obtain the missing audiogram and associate it with the claims file or Virtual VA. Accordingly, the case is REMANDED for the following action: 1. Obtain the September 2009 VA audiogram results, with interpretation. If the records are not available, the RO/AMC should inform the Veteran and his representative and should issue a formal finding of unavailability to be inserted in the record. 2. The RO should then readjudicate the claim in light of all of the evidence of record on the merits. If the claim remains denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) as to the issue on appeal, and afforded a reasonable period of time within which to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or 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 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). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs