Citation Nr: 1331381 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 10-18 309A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to a compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1963 to June 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Chicago, Illinois Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2013, a Travel Board hearing was held before the undersigned; a transcript of the hearing is included in the claims file. At the hearing the Veteran requested, and was granted, a 60 day abeyance period for the submission of additional evidence. Additional evidence consisting of lay statements in support of his claims was received with a waiver of RO consideration. The matter of the rating for bilateral hearing loss is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if action on his part is required. FINDING OF FACT It is reasonably shown that the Veteran has tinnitus that became manifest in service and has persisted. CONCLUSION OF LAW Service connection for tinnitus is warranted. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim of service connection for tinnitus. However, inasmuch as the benefit sought is being granted, there is no reason to belabor the impact of the VCAA on the matter; any notice defect or duty to assist failure is harmless. Accordingly, the Board will address the merits of the claim. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that it has reviewed all of the evidence of record, to include in the Veteran's claims file and in Virtual VA, with an emphasis on the evidence relevant to this appeal. (The Virtual VA file does not contain any evidence pertinent to the matter at hand.) Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Under 38 U.S.C.A. § 1154(a), VA is required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit ("Federal Circuit") held that "[l]ay 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.". The Court has also held that "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The Veteran contends that service connection for tinnitus is warranted because it resulted from acoustic trauma he experienced while serving as an infantry rifleman in the Marine Corps in Vietnam. He asserts that that he has "always had a ringing" in his ears since his return from Vietnam. See August 2007 VA Form 21-4138, Statement in Support of Claim; May 2010 VA Form 9, Appeal to Board of Veterans' Appeals; and March 2013 hearing transcript. Further, statements from the Veteran's ex-wife and a fellow service member received in April 2013 recall that the Veteran complained of ringing in his ears upon his return from Vietnam. The Veteran's DD 214 shows that his military occupational specialty (MOS) in the U.S. Marine Corps was rifleman. His service treatment records (STRs) are silent for any complaints, findings, treatment, or diagnosis of tinnitus. A June 2007 report of VA audiology consultation notes that the Veteran had "constant long-standing ringing." On January 2008 VA audiology examination, it was noted that the Veteran felt his tinnitus may have been present the past 10-20 years, possibly when he started in the National Guard, and he did not feel the tinnitus was present after returning from Vietnam. [In a March 2008 statement and at the March 2013 hearing, the Veteran asserted that the findings of January 2008 audiologist were inaccurate; he felt that she was not listening or misunderstood him.] It is not in dispute that the Veteran has tinnitus as tinnitus is a disability capable of lay observation [by the person experiencing it]. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). His lay statements, standing alone, constitute sufficient evidence to establish presence of a current tinnitus disability. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Because he served as a rifleman in the U.S. Marine Corps (and because service connection was granted for bilateral hearing loss on the basis that it was related to noise trauma in service), it is also not in dispute that he was exposed to substantial noise trauma in service. What he must still show to substantiate his claim is that the tinnitus is related to his service/noise trauma therein. One method of establishing service connection is by showing that the disability for which service connection is sought became manifest during service, and has persisted since. The Veteran alleges that such is the case with his tinnitus, as he first noted it in service or upon discharge from service, and it has persisted postservice. Because the service records do not show tinnitus, the determination rests on the Veteran's credibility. The fact that tinnitus was not noted in the service treatment records does not preclude that it may have been present but not reported to medical care providers. Consequently, the credibility of the Veteran's accounts of onset of tinnitus in service becomes a critical factor in this matter. Against the Veteran's claim is the January 2008 VA audiology examination report, wherein he denied tinnitus until many years later. In support of his claim are his statements prior to and after the January 2008 VA examination (and the corroborating statements of his wife and fellow service member) that he has had tinnitus since service. Upon close consideration of the entire record the Board finds that the Veteran's account prior to and after the January 2008 VA examination report of onset of tinnitus in service and continuity since is reasonably shown to be credible. He has fairly consistently maintained (with one notable exception, which he has explained) that his tinnitus began in service, and has persisted. Resolving remaining reasonable doubt in the Veteran's favor, as required (see 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102), the Board finds that it is shown that the Veteran's tinnitus became manifest in service and has persisted since. The requirements for establishing service connection for tinnitus are met. Service connection for tinnitus is warranted. ORDER Service connection for tinnitus is granted. REMAND At the March 2013 Travel Board hearing, the Veteran testified, in essence, that his bilateral hearing loss has increased in severity since his January 2008 VA audiological evaluation. In light of the length of the intervening period since the January 2008 examination and the allegation of worsening (which the Veteran is competent to report), a contemporaneous examination is necessary. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Accordingly, the case is REMANDED for the following action: 1. The RO should arrange for the Veteran to be afforded a VA audiological evaluation (with audiometric studies) to determine the current severity of his bilateral hearing loss. In addition to reporting audiometry results, the examiner should elicit from the Veteran information as to the effect his hearing loss has on his daily living, and then comment on the expected impact the degree of hearing loss shown would have on occupational and social functioning (i.e., provide an opinion as to whether the Veteran's complaints are consistent with his level of hearing loss shown). The examiner must explain the rationale for all opinions. 2. After the development sought above is completed, the RO should review the record and readjudicate the claim for increase. If the benefit sought remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be 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 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). ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs