Citation Nr: 1329601 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 13-12 782 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Aaron Bill, Associate Counsel INTRODUCTION The Veteran had active military service from April 1968 to April 1970. This appeal comes to the Board of Veterans' Appeals (Board) from a March 2012 rating decision. The Board has not only reviewed the Veteran's physical claims file but also his file on the "Virtual VA" system to ensure a total review of the evidence. The issue of 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 1. The Veteran was exposed to loud noise in service. 2. Symptoms of tinnitus first manifested in service. 3. Symptoms of tinnitus have been continuous since separation from service. 4. The Veteran has a current disability of tinnitus. 5. The Veteran's current tinnitus is related to exposure to loud noise in service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on the Department of Veterans Affairs to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not of record that: (1) is necessary to substantiate the claim; (2) VA will seek to provide; and (3) the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1) (2012). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable decision on the claim for VA benefits. In the decision below, the Board grants service connection for tinnitus. As such action represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and to assist is necessary as to those issues. Service Connection It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). In this case, the Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by a veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, supra, 1 Vet. App. at 57. Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) and Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Service connection may be granted for a 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(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). In this case, tinnitus is not among the disorders listed as "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran asserts entitlement to service connection for tinnitus related to noise exposure during service. The Veteran reported that he was exposed to excessive noise including hand grenades during his period of active service. The Board acknowledges that the November 2011 VA audiological examiner did not find that the Veteran's tinnitus could be attributed to a specific date or circumstance during the Veteran's active military service, as the Veteran was without complaints of tinnitus and found that the etiology of the Veteran's tinnitus was at least as likely as not to be related to the Veteran's current bilateral hearing loss. The examiner did not provide an etiology as to whether or not the Veteran's current tinnitus disability was at least as likely or not related to his military service. In the February 2012 VA examination report addendum, however, the examiner opined that the Veteran's current tinnitus disability was at least as likely as not related to his military service and his use of hand grenades. Given the Veteran's lay statements regarding his military noise exposure, the Board concedes that the Veteran was exposed to noise in service. Indeed, the Veteran consistently and credibly contended that he experienced in-service noise exposure from hand grenade usage and that he had tinnitus in service and since service. See Layno v. Brown, 6 Vet. App. 465 (1994). Based on the Veteran's credible testimony that he had tinnitus in service and since service, and in light of the February 2012 VA opinion regarding tinnitus, the evidence supports a finding that tinnitus was incurred in service. Accordingly, service connection is warranted for tinnitus. ORDER Service connection for tinnitus is granted. REMAND Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). A medical examination or medical opinion may be deemed necessary where the record contains competent medical evidence of a current diagnosed disability, establishes that the veteran suffered an event, injury or disease in service, and indicates that the claimed disability may be associated with the established event, injury or disease in service. See Id; McLendon v. Nicholson, 20 Vet App. 79, 83 (2006). The Veteran asserts that service connection for bilateral hearing loss is warranted as he was exposed to throwing hand grenades while in the Army. In a May 2012 statement from the Veteran's representative, the representative contends that while the Veteran's hearing was shown to be normal during service and at separation from service, the VA examiner who performed the Veteran's November 2011 VA examination and subsequent February 2012 addendum did not address whether any current hearing loss is attributable to in-service noise exposure on the basis of a delayed onset theory of causation. Given the reported noise exposure in service, the current diagnosis of bilateral hearing loss and tinnitus, and the Veteran's statements asserting a relationship between the current disorders and service, the Board finds that a VA examination with medical nexus opinion is required to determine whether the current bilateral hearing loss is causally related to active service. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should schedule the Veteran for a VA audiological examination with a different examiner than who conducted the November 2011 audiological examination to determine the nature and etiology of his bilateral hearing loss. The claims file must be made available to the examiner for review, and the examination report should reflect that such review has been accomplished. All appropriate testing should be conducted, and all pertinent diagnoses rendered. In rendering an opinion, the examiner should accept as established fact that the Veteran was exposed to loud noise in service and should also take a complete history of the Veteran's complaints of hearing loss during service and after separation from service. The examiner should provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that any current bilateral hearing loss had its onset in service or is otherwise related to service, to include as due to the Veteran's conceded in-service noise exposure. The examiner should address the contention that hearing loss is attributable to in-service noise exposure on the basis of a delayed onset theory of causation. The examiner should explain the opinion, and include notation of the facts, medical evidence, and/or medical principles used to reach that conclusion. 2. After completion of the above development, the claims for service connection for bilateral hearing loss and tinnitus should be readjudicated. If any benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC), and should be afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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). ______________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs