Citation Nr: 1331804	
Decision Date: 10/03/13    Archive Date: 10/07/13

DOCKET NO.  10-08 751	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1.  Entitlement to service connection for a right ear hearing loss disability.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to an initial compensable rating for a left ear hearing loss disability.  

REPRESENTATION

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

WITNESS AT HEARING ON APPEAL

The Veteran
ATTORNEY FOR THE BOARD

Terrence T. Griffin, Counsel




INTRODUCTION

The Veteran had active service from September 1961 to September 1965.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in November 2007 of a Department of Veterans Affairs (VA) Regional Office (RO).   

In May 2012, the Veteran appeared at a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is in the Veteran's file.

The issues of entitlement to service connection for right ear hearing loss and to an initial compensable rating for left ear hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

Tinnitus had its onset in service.


CONCLUSION OF LAW

The criteria for entitlement to service connection for tinnitus have been met.  38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2012). 








The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.

As the service connection claim for tinnitus is granted, further discussion of VCAA compliance is not necessary.

REASONS AND BASES FOR FINDING AND CONCLUSION

Principles and theories of service connection

A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service.  38 U.S.C.A. §§ 1110 (wartime service) and 1131 (peacetime service). 

Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so called "nexus" requirement.  All three elements must be proved.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

In this case, several legal theories operate in conjunction with 38 U.S.C.A. § 1110 and 1131 as implemented in 38 C.F.R. § 3.303.






Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service.  This may be accomplished by affirmatively showing inception or aggravation during service.  38 C.F.R. § 3.303(a). 

Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service.  38 C.F.R. § 3.303(d). 

Evidentiary standards

VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection.  38 U.S.C.A. § 1154(a).  

Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).

Competency is a question of fact, which is to be addressed by the Board.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007).

When the evidence is admissible, the Board must then determine whether the evidence is credible.  "Credible evidence" is that which is plausible or capable of being believed.  See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). 





If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005).  If the evidence is not credible, the evidence has no probative value. 

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 Veteran.  38 U.S.C.A. § 5107(b).

Facts

The service treatment records contain no complaint of tinnitus.  

After service in September 2007 on VA examination, the Veteran complained of tinnitus due to noise exposure in service.  He stated that he had served on the flight line and was routinely exposed to jet engine noise and other similar noise.   He stated that he had noticed tinnitus for about 20 or more years.  

The VA examiner expressed the opinion that it was less likely than not that the tinnitus was related to noise exposure in service, because tinnitus was not documented in service and the Veteran worked around loud noises following separation.  

In May 2012, the Veteran testified that his military occupational specialty in service required working on the flight line and regular exposure to jet engine noise.  He stated that his tinnitus began in service and the condition did not abate after separation.  







Analysis

On the basis of the service treatment records alone, tinnitus was not affirmatively shown to be present in service.  But the absence of in-service documentation is not dispositive as to whether tinnitus began in service.

Tinnitus is a condition under case law where lay observation has been found to be competent as to the presence of the disability, that is, tinnitus is capable of lay observation.  Charles v. Principi, 16 Vet. App. 370 (2002) (On the question of whether the veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent); see also Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness).

The Board finds that the Veteran is competent to describe tinnitus and his statements are credible, that is, the statements tend to prove a fact, that is, he noticed that tinnitus began in service.  While there is no contemporaneous documentation of tinnitus in service, the Veteran was exposed to noise in service, and the Veteran is competent to describe tinnitus.  Moreover, there is no affirmative evidence that the Veteran is not credible.

As for evidence against the claim, the VA examiner concluded that the Veteran's tinnitus was not likely related to service, at least in part, because tinnitus was not noted in service.  The medical opinion does not adequately consider and analyze the Veteran's competent and credible account of tinnitus, including in and since service.  Dalton v. Nicholson, 21 Vet. App. 23, 39-40.  





Further, the VA examiner relied largely, if not entirely, on the absence of corroborating medical evidence, which under the circumstances of the case, has minimal probative value as the Board finds that the Veteran was exposed to noise in service and the Veteran is competent to describe tinnitus in service and since, which the Board finds credible.  Buchanan v. Nicholson, 451 F. 3d 1331, 1335 (Fed. Cir. 2006).  

The probative evidence sufficiently places the onset of tinnitus in service because the Veteran's lay statements are competent and credible with regard to noise exposure in service and in describing tinnitus in service.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d at 1376-77.  Service connection for tinnitus is warranted.


ORDER

Service connection for tinnitus is granted.  


REMAND

On the claim of service connection for right ear hearing loss, in May 2012, the Veteran identified audiology examinations for employment from 1965 to 2003, but the records have not been obtained. And further development under the duty to assist is needed. 

On the claim for increase for left ear hearing loss, private medical records in February 2008 suggest a material change in hearing and a reexamination under 38 C.F.R. § 3.327 is warranted. 

Accordingly, the case is REMANDED for the following action:


1.  Ask the Veteran either to submit or to authorize VA to obtain on his behalf the post-service employment audiological examinations from 1965 to 2003.  

2.  Ask the Veteran either to submit or to authorize VA to obtain on his behalf the records of the Audible Custom Hearing Aids since February 2008.  

3.  Afford the Veteran a VA audiology examination by VA examiner, who has not previously examined the Veteran, to determine: 

Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), less likely than not (probability less than 50 percent) that a right ear hearing loss disability: 

a.  Is related to noise exposure in service, namely, duties on a flight line and jet engine noise exposure; or, 

b.  Is caused by or aggravated by the service-connected left ear hearing loss or tinnitus or both. 

In formulating an opinion on aggravation, "aggravation" means a permanent increase in severity, that is, an irreversible worsening of a disability as a result of a service-connected disability or disabilities beyond the natural clinical course of the nonservice connected disability as contrasted to a temporary worsening of symptoms. 


The Veteran's file should be made available to the examiner for review. 

4.  Afford the Veteran a VA audiology examination to determine the current level of hearing loss for the service-connected left ear. 

The Veteran's file should be made available to the examiner for review.

5.  On completion of the above development, adjudicate the claims.  If any benefit is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the claims the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

The claims 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).



______________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs