Citation Nr: 1330219 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 12-35 047 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for 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 Y. Curtis, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1961 to August 1962. He also served a period of active duty for training from June 1961 to October 1961. This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for tinnitus and bilateral hearing loss. The issue of 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 all reasonable doubt in the Veteran's favor, tinnitus is etiologically related to active service. CONCLUSION OF LAW 1. The criteria for service connection for tinnitus have been meet. 38 U.S.C.A. 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012) REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting the full benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. I. Principles of Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted during active military service. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 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 claimant. 38 U.S.C.A. § 5107; See also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). II. Facts and Analysis The Veteran's service treatment records do not show complaints, findings, or a diagnosis of tinnitus. During a July 2010 VA audiological examination, the Veteran reported a history of recreational and occupational noise exposure that included deer hunting and working as a construction worker for thirty-five years following service. The Veteran denied a history of ear disease or ear trauma and complained of experiencing constant tinnitus for approximately 30 years. The examiner diagnosed the Veteran with tinnitus and opined that the Veteran's tinnitus is at least as likely as not a symptom associated with his hearing loss. The examiner also opined that the Veteran's tinnitus was not caused by or a result of the Veteran's service as an armor crewman because the Veteran's entrance and separation hearing tests revealed normal responses bilaterally. In an October 2010 notice of disagreement, the Veteran maintained that he was exposed to noise from live fire exercises while working as an armor crewman. He reported that, on one occasion, he experienced a noise in his ears after participating in live fire exercises without hearing protection. The Veteran essentially reported that his tinnitus began during service and has continued since service. The Veteran is competent to report the onset and continuity of his tinnitus symptoms as tinnitus is a disease that is capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). Indeed, tinnitus is diagnosed based on an individual's subjective complaints. Furthermore, the Veteran's report of the onset of his tinnitus during service is deemed credible because his report is consistent with his duties in service. The mere absence of contemporaneous mention of the condition is not a sufficient basis upon which to reject his account. Buchanan v. Nicholson, 451 F3d 1331, 1337 (Fed. Cir. 2006). Notably, both the Veteran's entrance and separation hearing assessments were conducted via whispered voice tests, which are insensitive to the types of hearing loss most commonly associated with noise exposure. VBA Training Letter 211D (10-02) (March 18, 2010). Additionally, the examiner's opinion does not discuss the Veteran's subsequent reports that he experienced tinnitus during service. The October 2010 medical opinion is based on an incomplete record and is not supported by an adequate rationale because the examiner did not consider all the relevant evidence in arriving at his conclusion. Thus, the opinions provided by the examiner at the October 2010 audiological examination have no probative value. The sole probative evidence of a nexus are the Veteran's statements regarding the onset and continuity of his tinnitus. During a VA examination, the Veteran reported that his tinnitus began approximately 30 years ago; however, in a notice of disagreement dated October 2010, the Veteran provided a detailed account of tinnitus in service following a live fire exercise that involved tanks, mortars, and guns. The Veteran's October 2010 statement is consistent with the circumstances of his service. The competent evidence of record is at least in equipoise with respect to whether the Veteran's tinnitus began in service and has continued since service. Accordingly, reasonable doubt is resolved in the Veteran's favor and service connection for tinnitus is warranted. ORDER Entitlement to service connection for tinnitus is granted. REMAND In a July 2010 VA examination the audiologist opined that the Veteran's hearing loss is not caused by or a result of service because both his enlistment and discharge hearing tests revealed normal responses bilaterally. Notably, both the Veteran's entrance and separation hearing assessments were conducted via whispered voice tests, which are subjective, inaccurate, and insensitive to the types of hearing loss most commonly associated with noise exposure. VBA Training Letter 211D (10-02) (March 18, 2010). Given the fact that the whispered voice test is not considered to be reliable evidence that hearing loss did not occur during service and the fact that the VA audiologist failed to attribute the Veteran's hearing loss to any other occurrence, the VA audiologist's opinion is not supported by an adequate rationale. An addendum medical opinion is required. Accordingly, the case is REMANDED for the following action: 1. Contact the VA audiologist who examined the Veteran in July 2010 for an addendum opinion. The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's bilateral hearing loss is related to service. The VA examiner may not consider the June 1961 and August 1962 whispered voice test results as evidence of the absence of hearing loss during service because the VA has acknowledged that whispered voice tests are inaccurate and insensitive to the types of hearing loss most commonly associated with noise exposure. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Review the claim file to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefit sought remains denied, issue a supplemental statement of the case and provide the Veteran and his representative an appropriate period of time to respond. The case is to then be returned to the Board for further appellate 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). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs