Citation Nr: 1330787	
Decision Date: 09/25/13    Archive Date: 09/30/13

DOCKET NO.  12-09 944	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1.  Entitlement to service connection for left ear hearing loss disability.

2.  Entitlement to service connection for tinnitus.



REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

A. Lech, Associate Counsel




INTRODUCTION

The Veteran had active service from March 1982 to April 1984.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a  July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. 

The Board has reviewed the physical claims file and the Virtual VA electronic claims file.

The issue of entitlement to a service connection for left ear hearing loss is REMANDED to the RO via the Appeals Management Center in Washington, D.C.


FINDING OF FACT

Tinnitus is etiologically related to noise exposure the Veteran sustained while in active service.


CONCLUSION OF LAW

Tinnitus was incurred in active service.  38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty.  38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012).  To prevail on the issue of service connection on the merits, there must be medical evidence of a (1) 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 disease or injury.  Hickson v. West, 12 Vet. App. 247 (1999).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for VA benefits.  VA shall consider all information and lay and medical evidence of record.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, reasonable doubt shall be resolved in favor of the claimant.  38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  To deny a claim, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518 (1996).

Service connection may also be granted for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service.  38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2012); Cosman v. Principi, 3 Vet. App. 503 (1992).  The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature.  For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  For certain chronic diseases set forth in 38 C.F.R. § 3.309(a), a continuity of symptomatology may establish service connection when the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  38 C.F.R. § 3.303(b) (2012); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).   Tinnitus is an organic disease of the nervous system and thus is among the chronic diseases set forth in 38 C.F.R. § 3.309(a), and therefore service connection for tinnitus may be established based on a continuity of symptomatology.  Furthermore, tinnitus can be presumed service-connected if manifest to a compensable degree within one year following separation from service.  38 C.F.R. §§ 3.307, 3.309 (2012).

The Veteran has asserted that he has tinnitus as a result of occupational noise exposure sustained while in active service.  The Veteran has reported that he spent a great deal of his active service in the field and working with weapons of all types, including rifles, grenade launchers, and grenades.  The Veteran reported that he was not provided hearing protection during his duties.  The Veteran's service separation from lists his military occupational specialty as infantryman.  Therefore, the Board concedes the Veteran's exposure to hazardous noise while in active service. 

A review of the Veteran's service medical records shows that they are silent for complaints of or treatment for tinnitus while the Veteran was in active service.  In December 1983 the Veteran was provided a separation examination.  There is no indication from the examination report that the Veteran reported tinnitus at that time.  Additionally, there is no indication from the examination report that the examiner found the Veteran to have symptoms of tinnitus at the time of his separation examination. 

The Veteran has consistently reported that he first experienced tinnitus while in active service and that he has continued to experience symptoms of tinnitus since his separation from service.  The Board notes that the Veteran is competent to report when he first experienced symptoms of tinnitus and that they have continued since service because that is information that comes to him through his senses.  Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991).  Moreover, the Board finds the Veteran to be credible in that assertion.

At a June 2010 VA examination, the Veteran reported that he had military occupational noise exposure in the form of rifles, grenade launchers, and grenades.  The Veteran reported working as an air conditioners repairman and a painter following separation from active service, and engaging in recreational use of power tools, specifically power saws.  The Veteran reported that his tinnitus started during his time in active service, while he was on a grenade range in basic training.

Based on the examination results and the history provided by the Veteran, the examiner diagnosed tinnitus.  The examiner opined that the Veteran's tinnitus was not caused by or a result of noise exposure sustained during his active service.  The examiner noted that the Veteran's service medical records did not show complaints of tinnitus and that the frequency and intermittent duration of the reported tinnitus was not typical of tinnitus resulting from acoustic trauma.   

The Board may assess medical evidence and is not obligated to accept a physician's opinion.  Wilson v. Derwinski, 2 Vet. App. 614 (1992).  The Board finds that the VA examiner's opinion regarding the etiology of the Veteran's tinnitus has low probative value, as the examiner did not adequately account for the Veteran's reported noise exposure during active service and his lay accounts of the onset of his symptoms.  Additionally, the examiner did account for the Veteran's detailed description of when he first began to experience tinnitus.  Because the examiner did not consider the Veteran's statements regarding continuity of symptomatology, the Board finds that the examiner's opinion is not persuasive.

The Board notes that 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.  Competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F .3d 1331 (Fed. Cir. 2006).  In this case, the Veteran is competent to identify tinnitus and his statements have been found credible. 

In sum, the Board has conceded the Veteran's exposure to hazardous noise while in active service.  The Veteran has competently reported that he first experienced tinnitus in active service and that he has continued to experience tinnitus since his separation from active service.  Those statements have been found credible by the Board and establish a continuity of symptomatology of a chronic disease.  Finally, there is no persuasive medical opinion of record indicating that the Veteran's currently diagnosed tinnitus is not related to his noise exposure in active service. 

Accordingly, the Board finds that the evidence for and against the claim of entitlement to service connection for tinnitus is at least in equipoise.  Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for tinnitus is warranted.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to service connection for tinnitus is granted.


REMAND

The Board finds that additional development is required before the Veteran's claim for service connection for left ear hearing loss disability can be decided. 

The Veteran has asserted that he has left ear hearing loss disability as a result of hazardous noise exposure sustained during service.  Additionally, the Board has conceded acoustic trauma during service and granted service connection for tinnitus.  

In June 2010, the Veteran underwent a VA examination to determine the nature and etiology of his hearing loss disability.  The examiner diagnosed normal to moderate sensorineural hearing loss in the left ear that met the criteria to be considered a disability by VA.  38 C.F.R. § 3.385 (2012).  The examiner opined that the Veteran's bilateral hearing loss was not caused by or a result of acoustic trauma.  The examiner reviewed the claims file and service medical records.  The examiner noted that the Veteran's hearing was normal bilaterally when tested in December 1983, upon his separation from the military.  The examiner acknowledged that the Veteran's military occupational specialty likely exposed him to noise, but noted that the service medical records did not indicate a negative impact on his hearing.  The examiner stated that the Veteran had post-service recreational noise exposure to power tools and that the effects of aging could explain some of his current degree of hearing loss in the left ear.

A review of the Veteran's service medical records shows that an audiometric evaluation demonstrated normal hearing for VA purposes on his February 1982 entrance exam.  Reported puretone thresholds, in decibels, were:

HERTZ
500
1,000
2,000
3,000
4,000
LEFT
0
0
5
20
5

The December 1983 separation examination showed a change in left ear hearing, although the results were still normal for VA purposes.  38 C.F.R. § 3.385 (2012).  Reported puretone thresholds, in decibels, were:

HERTZ
500
1,000
2,000
3,000
4,000
LEFT
10
10
10
20
15

The threshold for normal hearing is between 0 and 20 decibels, and a higher threshold shows some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155 (1993).

The Veteran's service medical records show that while he did not have left ear hearing loss for VA purposes during active service, his left ear hearing demonstrated a threshold change during service.  The June 2010 VA examiner did not address the threshold shift in the Veteran's hearing acuity during service.  Once VA undertakes the effort to provide an examination, even if not statutorily obligated to do so, VA must provide an adequate one or notify the claimant when one will not or cannot be provided.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  Because the examiner did not address the hearing threshold shift, the June 2010 VA examination and opinion are inadequate for adjudication purposes.  The examiner stated that the service medical records did not indicate that any noise exposure in service had a negative effect on his hearing, but did not discuss the left ear threshold shift during service.  Therefore, the Veteran should be provided a new VA examination to determine the nature and etiology of any current left ear hearing loss disability. 

Additionally, the Board notes that the Veteran's December 1983 separation examination shows that he checked the "I don't know" box when asked about hearing loss.  The other options were "yes" and "no."  The June 2010 VA examiner did not discuss that issue with the Veteran.  Therefore, that matter should be addressed on a new examination.  Current treatment records should be obtained before a decision is rendered with regard to this issue.  

Accordingly, the case is REMANDED for the following action:

1.  Obtain any VA treatment records since October 2009 and associate them with the claims file.

2.  Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the nature and etiology of any currently present left ear hearing loss disability.  The examiner must review the claims file and should note that review in the report.  The complete rationale for the opinions expressed should be provided.  All indicated studies should be performed.  The examiner should provide an opinion with as to whether it is at least as likely as not (50 percent or greater probability) that any left ear hearing loss is etiologically related to acoustic trauma during active service.  

3.  Then readjudicate the claim.  If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response.  Then, return the claim 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs