Citation Nr: 1327724 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 08-26 340 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to an initial compensable evaluation for hemorrhoids. REPRESENTATION Appellant represented by: Peter J. Meadows, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from November 1967 to September 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran and his spouse testified at a Board hearing at the RO in St. Petersburg, Florida in November 2011. The transcript has been associated with the file, and has been reviewed. In a March 2012 decision, the Board denied entitlement to service connection for bilateral hearing loss and tinnitus, as well as remanded the issue of entitlement to an initial compensable disability evaluation for hemorrhoids. In a November 2012 Joint Motion for Remand, the United States Court of Appeals for Veterans Claims (Court) vacated and remanded the issue of entitlement to service connection for tinnitus for re-adjudication. The denial of service connection for hearing loss was affirmed. In July 2013, the Veteran submitted an independent medical evaluation in support of his claim and waived RO review. The issue of entitlement to an initial compensable evaluation for hemorrhoids 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 had onset in service or was caused by his active military service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may 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) (2012). The Veteran is alleging that his tinnitus was caused by exposure to noise while in-service. In a June 2008 statement he indicated that he had been an ammunition handler, with no hearing protection, and had to work around large electric exhaust fans, with no hearing protection, as assignments during his naval deployment. See also November 2011 Board hearing transcript. The Veteran's DD-214 indicates his MOS was that of a Ship Servicemember. This position has been identified as an occupation where there was a low probability of noise exposure. See Duty MOS Noise Spreadsheets, Veterans Benefits Administration Fast Letter 10-35 (Dep't of Veterans Affairs, September 2, 2010). However, the Board has noted the Veteran's lay statements that he was exposed to noise while performing other tasks aboard the USS Pocono. The Veteran has been consistent in his descriptions of the type of noise he was exposed to in service and his account appears to the Board to be consistent with the nature of his service aboard a naval vessel during a period of wartime service. Accordingly, the Board will concede the Veteran's noise exposure in service. The Veteran was provided medical examinations at both entrance and separation to service. In his June 1967 entrance medical examination he reported no tinnitus and checked the box indicating he had no "ear trouble" on his Report of Medical History. Although the Veteran was seen in-service with various other medical complaints, at no time did he report that he was suffering from ringing in his ears. See e.g., December 1967 service treatment record with complaints of cold symptoms, May 1968 service treatment record with complaints of a minor head cold, and January 1971 service treatment record with complaints of nausea, fever, and chills. At his separation examination in June 1971, he again did not report that he was suffering from tinnitus. In short, the records are devoid of any complaints, diagnoses, or treatments consistent with an in-service incurrence of tinnitus. The first post service complaint of tinnitus comes from a private treatment record in November 2006, approximately 35 years after separation from service. A November 2006 private audiological examination report records the Veteran reported that he suffered from tinnitus. A December 2006 statement from the Veteran's wife indicated that the Veteran complained of ringing in his ears and had to sleep with a fan next to his bed. At a May 2008 VA audiological consult, the Veteran reported that he had been exposed to noise in the military and now suffered from tinnitus. He also said his tinnitus started in 1973, after service. In July 2013, the Veteran submitted an independent medical evaluation in support of his claim. The Veteran again described noise exposure as an ammunition handler of a five inch gun and as a handler of large, portable smoke ejector fans during fire drills, both without hearing protection. He reported that in 1973, he began experiencing a constant buzzing in his ears which has worsened within the last year. He did not seek medical treatment until 2006 because he believed that nothing could be done and because he did not know he was eligible to receive VA benefits. He denied any post service recreational or occupational exposure to loud noises. The physician examining the Veteran, Dr. G.W. found the Veteran to be competent and credible in his account of his medical history and opined that it is at least as likely as not that the Veteran's currently diagnosed tinnitus is related to his in-service noise exposure. While the absence of complaints of or treatment for tinnitus in service or for decades after service weighs against the Veteran's claim, he has provided competent and credible testimony of in-service noise exposure and has submitted a positive medical opinion from a private doctor who believes the Veteran's current tinnitus disability is related to his military service. Accordingly, doubt is resolved in favor of the Veteran and entitlement to service connection for tinnitus is granted. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. ORDER Entitlement to service connection for tinnitus is granted. REMAND In March 2012, the Board remanded the matter of an initial compensable rating for hemorrhoids for further development. The Veteran was afforded a new VA examination in April 2012 and additional VA treatment records have been associated with the Veteran's claims folder; however, the case was returned to the Board before the RO could readjudicate the case by way of a supplemental statement of the case. Additionally, there are outstanding VA records from April 2012 onward. Thus, this issue is not ready for appellate review. Accordingly, the case is REMANDED for the following action: Ensure that all of the Board's March 2012 directives have been satisfied, to include obtaining outstanding relevant VA records from April 2012 onward. When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be 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 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). ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs