Citation Nr: 1326705 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 12-23 474 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant, Appellant's spouse ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran served on active duty from February 1961 to January 1965. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in August 2011 of a Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. 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 addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT There is competent evidence that the Veteran was exposed to loud noise in service and the Veteran's current tinnitus had its onset from an injury, disease, or event of active service origin. CONCLUSION OF LAW Tinnitus was incurred in by active service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented, in part, at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As the claim of service connection for tinnitus is resolved in the Veteran's favor, the only matter disposed of in this decision, further discussion here of compliance with the VCAA with regard to the claim is not necessary. Service Connection for Tinnitus 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). As tinnitus is not listed as one of the chronic diseases in 38 C.F.R. § 3.309, the provisions for service connection for chronic disease under 38 C.F.R. § 3.303(b) do not apply. See Walker v. Shinseki, 708 F.3d 1331, 1338 (2013). 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). 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. See 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). The Veteran asserts that he has bilateral hearing loss and bilateral tinnitus as a result of in-service noise exposure. His DD-214 establishes that his MOS was in the motor pool. The Veteran testified, however, that he served as a driver transporting officers to and from the flight line with running jet engines near where he picked up or dropped off his passengers. His duty station was also located next to or near the flight line. He did not use hearing protection. The Veteran has also presented information from the internet that exposure, even for a short period of time, to the noise from jet engines, averaging around 140 dB 100 feet away, can cause permanent damage. The service treatment records do not show any complaint, clinical finding, treatment, or diagnosis of hearing loss or tinnitus. As his entrance examination in February 1961 and separation examination on December 1964, his hearing was normal for VA purposes. See 38 C.F.R. § 3.385. In his VA examination in July 2011, the Veteran did not report tinnitus. The Veteran was diagnosed with sensorineural hearing loss at 500-4000 Hertz. In his notice of disagreement, the Veteran stated he did not understand the word "tinnitus" and he has had a buzzing sound in his ears since his time in the military. The Veteran has submitted reports and hearing tests from private providers. In April 1995, Dr. C. Eriksen noted the Veteran had some ringing in the ears. An audiologist also noted a history of some ringing in the ears with the left worse than the right. In March 1998, Dr. J. Charbonneau stated the Veteran had ringing in his ears just about all the time. In May 1998, the Veteran reported bilateral intermittent tinnitus to an audiologist, D. A. Meinke. In October 1998, Dr. J. A. Harris reported the Veteran complained of intermittent bilateral tinnitus, but the Veteran did not have a problem with it. Dr. Ruynon, in February 2003, noted in his history that the Veteran had longstanding tinnitus. The report of an audiological test that same month also noted tinnitus. In April 2012, the Veteran's primary caregiver, Dr. J. Seeton, noted the Veteran has intermittent tinnitus that has become less of a problem as the Veteran aged. Considering the pertinent evidence in light of the governing legal authority, and resolving all doubt in favor of the Veteran, the Board finds that the claim must be granted. Tinnitus is a condition under case law, where lay observation has been found to be competent as to the presence of the disability, that is, tinnitus is capable of lay observation. Charles v. Principi, 16 Vet. App. 370, 374 (2002) (On the question of whether the veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law , lay observation is competent- "ringing in the ears is capable of lay observation"). See 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). The Board finds that the Veteran is competent to describe ringing in his ears and his testimony is credible that tinnitus began in service. Thus, the evidence establishes that the Veteran currently has tinnitus. The remaining question is whether service connection may be granted when the disability is first diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disabilities were incurred in service. 38 C.F.R. § 3.303(d). The Board recognizes that the Veteran did not report tinnitus in his VA examination. The Veteran stated, however, that he did not understand what the word "tinnitus" meant. As demonstrated above, on earlier occasions, he has reported tinnitus symptoms such as ringing in the ears. Accordingly, the Board finds that the Veteran is credible that he did not know what the VA examiner meant when questioned and that overall his statements and testimony are credible. The statements and testimony tend to prove a fact, that is, he noticed that tinnitus began in service. Moreover, the Board finds the Veteran's report of having experienced tinnitus since separation from service to also be credible. The Veteran's competent and credible statements and testimony establishes the in-service incurrence of an injury, disease, or event (noise exposure), resulting in tinnitus. While service treatment records reflect no reports of tinnitus or ringing in the ears, there is no indication in these records, or any post-service treatment records, that the Veteran ever denied tinnitus or a history of tinnitus. The only apparent history of tinnitus inconsistent with his written statements and testimony is the VA examination, but as noted, the Board has determined that inconsistency resulted from a misunderstanding. As the Veteran's lay statement is competent and credible with regard to noise exposure in service and in describing tinnitus in service and since service, and with evidence of current disability and evidence of a relationship between the current disability and noise exposure in service on the basis of continuity, all the elements of service connection have been met and service connection is established. See Buchanan v. Nicholson, 451 F. 3d 1331, 1335 (Fed. Cir. 2006) (If lay evidence presented by the veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence). Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's tinnitus began in service, and the claim for service connection for tinnitus must be granted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). ORDER Entitlement to service connection for tinnitus is granted. REMAND The Veteran seeks service connection for hearing loss. The Veteran was provided a VA examination in July 2011. The examiner diagnosed that the Veteran had bilateral sensorineural hearing loss and concluded that the disability was less likely than not related to service because the Veteran's hearing test results in service were normal and there was no significant threshold shift between entrance and separation. The Board notes that the examiner did record how the current disability has affected the Veteran's overall and occupational functioning but did not record any history of either the Veteran's service or civilian noise exposure. The Board finds that the examination is inadequate. First, the examiner does not explain the clinical significance that there was no significant threshold shift between entrance into service and separation. Second, to note that hearing levels were normal in service is not the only basis that the Veteran may receive service connection. Service connection may be proven 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). The examiner therefore did not explain how the in-service test results precluded service connection for a hearing loss that had either a sudden onset or gradually progressed over the years. The Board also notes there is no discussion by the examiner regarding the in-service noise exposure neither in the history nor in the analysis. The Veteran has testified that he served as a driver transporting officers to and from the flight line with running jet engines near where he picked up or dropped off his passengers. The Veteran has also presented information from the internet that exposure to the noise from jet engines, even for a short period of time, can cause damage. A Veteran may testify about events within his own personal knowledge, derived from his own senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The examiner also did not apparently obtain a history of the Veteran's post-service civilian noise exposure, and the effect such noise exposure has on the Veteran's current hearing loss disability. The Board thus finds the examination is inadequate and a new VA examination must be provided to the Veteran. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Veteran has submitted records from various private caregivers regarding the Veteran's hearing loss. It is unclear if the records provided are the complete records of each caregiver and, in any event, reference is made to additional testing and records of the Veteran's hearing. For instance, in a report dated in June 1998, Dr. R. J. McLaughlin notes the Veteran has had hearing loss for some time including the Veteran's "entry audiogram" in 1982. The Board believes this is a reference to an audiological testing that occurred when the Veteran started working for his last employer, Kodak. Dr. J. D. Charbonneau, in March 1998, referred to a summary of earlier hearing tests, presumably from Kodak, and an audiologist, D. Meinke, also referred to earlier tests that have not been associated with the file. Again, it appears these tests and records are from the employer. The Board has determined that these records should be obtained as they may help establish the claim. Finally, the Board notes that in June 2010, the veteran had an audiological test at VA. The record before the Board contains an interpretation of the results, but the complete test with numerical results are not included. VA medical records, even if not in the claims file, are nevertheless considered part of the record on appeal because they are within VA's constructive possession. See 38 U.S.C.A. § 5103A (b) (West 2002); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992) (holding that when reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the Veteran to attempt to obtain them). The test should be associated with the file. Accordingly, the case is REMANDED for the following action: (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. Ask the Veteran to submit or authorize VA to obtain the medical records and any hearing tests from his employer Kodak, as well as the records of Dr. R. J. McLaughlin, Dr. J. D. Charbonneau, Audiologist D. Meinke, Audiologist J. Newton of Miracle Ear, Dr. J. Seeton, Dr. C. M. Eriksen, Audiologist Renita K. Boesiger, Dr. J. Harris, and Dr. B. Runyan. All efforts to obtain these records must be documented in the file. The RO should make two attempts to obtain these records once authorization is obtained, unless the first attempt reveals that further attempts would be futile. If no records are obtained, the RO should notify the Veteran of the records that could not be obtained, notify the Veteran of the steps taken to obtain the records, and notify the Veteran he may submit any such records in his possession. 2. Obtain VAMC records from the Cheyenne/Fort Collins VAMC and any associated outpatient clinics from August 2012 to the present, and the complete report of a June 2010 audiological test. All attempts to obtain these records should be documented in the file. 3. After the foregoing record development is complete, schedule the Veteran for a VA examination for bilateral hearing loss. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. All pertinent history, including in- service and civilian noise exposure, symptomatology, and findings must be reported in detail. A complete rationale for all opinions must be provided. The examiner is asked to determine if the Veteran has a hearing loss disability, and if so, whether it is at least as likely as not (probability of 50 percent or more), that any current hearing loss disability had its onset during service or is causally and etiologically related to service, considering the evidence, accepted medical principles pertaining to the history, manifestation, clinical course, and the character of the disability found. The examiner is asked to specifically discuss the Veteran's testimony and evidence of noise exposure in service where he transported other service personnel to and from the flight line while jet engines were running. The examiner is asked to specifically discuss the Veteran's evidence that exposure to jet engines reaches 140 dB and exposure to such levels, even for a short duration, can cause hearing loss damage. The examiner is asked to specifically discuss the Veteran's post-service noise exposure from his civilian occupations and from recreational activities such as hunting. The examiner is advised that lay evidence of continuity of symptoms of hearing loss, after service, if credible, is competent evidence, regardless of the lack of contemporaneous medical evidence. Nevertheless there still must be a factual showing that a symptom, for example pain, is derived from an injury, disease, or event in service. If, however, after a review of the record, an opinion on causation is not possible without resort to speculation, the VA examiner is asked to clarify whether actual causation cannot be determined because there are several potential non-service related causes of the current hearing loss disability, and if so, identify the other potential causes for the symptoms after service as described by the Veteran, or that an opinion on causation is beyond what may be reasonably concluded based on the evidence of record, considering current medical knowledge. 4. The Veteran must be advised of the importance of reporting to the scheduled VA examination and of the possible adverse consequences, to include the denial of his claim, of failing, without good cause, to so report. See 38 C.F.R. § 3.655 (2012). A copy of the notification letter advising him of the time, date, and location of the scheduled examination must be included in the claims folder and must reflect that it was sent to his last known address of record. If he fails to report, the claims folder must indicate whether the notification letter was returned as undeliverable. 5. After the development requested is completed, readjudicate the claim for service connection for bilateral hearing loss. If the benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and a reasonable period to respond, and then return the case to the Board. 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). ______________________________________________ L. M. Barnard Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs