Citation Nr: 1332171 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 13-12 414 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE 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 H. Papavizas, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1967 to October 1970. This appeal to the Board of Veterans' Appeals (Board) arose from a February 2012 rating decision in which the RO denied the Veteran's claims for service connection for bilateral hearing loss and tinnitus. In March 2012, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in April 2013, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) that same month. The Veteran's claim for service connection for tinnitus is GRANTED. The issue of service connection for 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 has experienced tinnitus since military service. 2. The Veteran was exposed to acoustic trauma when he was subjected to ammunition explosions without hearing protection as a U.S. Navy Seabee doing construction work while on active duty. 3. A causal relationship exists between the Veteran's tinnitus and his military service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. See 38 U.S.C.A. §§ 1101, 1110, 1111, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2013)), includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). Given the favorable disposition of the claim for service connection for tinnitus, the Board finds that the Veteran is not prejudiced by a lack of discussion concerning compliance with the VCAA. Tinnitus The Veteran contends that he currently has tinnitus because of acoustic trauma experienced during active military service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Where a disease is diagnosed after discharge, service connection may be granted when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 C.F.R. § 3.303(d). Generally, service connection requires competent and credible evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disability. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Under certain circumstances, lay statements may be sufficient for service connection by establishing the occurrence of lay-observable events, the presence of disability, or symptoms of disability that are susceptible to lay observation. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). Because the evidence of record shows that the Veteran has a current disability of tinnitus, the first service connection element is satisfied. The veteran is competent to identify and diagnose tinnitus, as such condition is readily observable by laypersons and does not require medical expertise to establish its existence. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). In his May 2011 claim for service connection, the Veteran stated that he has suffered from tinnitus since service. In his April 2013 Form 9, he reaffirmed that he experiences noise in his ears which began when he was in the military. However, in a February 2012 VA examination for compensation, the examiner concluded that the Veteran did not have tinnitus because the Veteran denied having a current complaint tinnitus. In a March 2012 NOD, the Veteran clarified that his tinnitus did not begin 10 years ago, but instead began to worsen then. The Veteran's multiple, positive assertions of tinnitus credibly demonstrate that he has tinnitus which began during service and has continued to the present. Outside of the February 2012 VA examination, the Veteran has reliably and consistently stated that he has experienced tinnitus since service, both in his original claim and VA Form 9, and he has also asserted that his tinnitus worsened, not began, about 10 years ago in his NOD. The only conflicting evidence is the examiner's statement that the Veteran denied having tinnitus during the February 2012 VA examination. However, that sole, anomalous contradiction does not influence the Board's determination that the Veteran is a reliable reporter of his own symptomology because it is unclear how the examiner phrased her questions to the Veteran, the Veteran may have misunderstood the examiner and inadvertently answered negatively, or the examiner may have inaccurately recorded the Veteran's response. Furthermore, because the Board finds the Veteran credible in his assertions that his tinnitus began in and has continued since service, the Board finds that the February 2012 VA examination was premised on an inaccurate factual foundation (namely, the absence of tinnitus based on the Veteran's alleged denial) and therefore lacks probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (probative medical opinion must be based on a factually accurate, fully articulated, sound reasoning for the conclusion). Because the evidence of record shows that the Veteran currently suffers from tinnitus, the first element for service connection is met. The evidence also substantiates the second element for service connection, an in-service incurrence of a disease or injury. Here, the evidence establishes that the Veteran worked as a U.S. Navy Seabee in a construction occupation. In that role, he stated credibly that he was exposed to hazardous noise in the form of explosions at an ammunition dump site for several weeks and that his tinnitus started at that time. Finally, the evidence demonstrates that a causal connection exists between the Veteran's tinnitus and his military service. In some instances, lay evidence may be sufficient to establish a nexus. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (rejecting the view that a lay person is not competent to provide testimony regarding nexus). Although the VA examiner concluded that "in the absence of the condition . . . the veteran's claimed tinnitus was NOT caused by or a result of military service," the Board has discredited the February 2012 VA examination, as explained above, because it is grounded on an inaccurate factual predicate. The Board thus finds that the Veteran's statements concerning his current tinnitus symptomology and its etiology are competent and credible, and there is no competent or credible evidence of record that directly contradicts his assertions regarding the commencement of his tinnitus in service and the persistence of his tinnitus since then. Consequently, the Board concludes that the Veteran's competent and credible reports are sufficient to establish a positive nexus to military service. Resolving reasonable doubt in favor of the Veteran, the Board finds that it is at least as likely as not that the Veteran's tinnitus is related to his active military service. See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for tinnitus is warranted. ORDER The Veteran's claim for service connection for tinnitus is granted. REMAND The Board's review of the claims file shows that further RO action on the claim for service connection for bilateral hearing loss is warranted by providing the Veteran with an examination. The claims file contains VA opinions concerning the etiology of the Veteran's hearing loss. Although there is a 2012 VA opinion and 2013 addendum to that opinion, the Board finds that the opinions are not adequate for adjudication purposes. While the physician provided a rationale for concluding that it was less likely than not that the Veteran's hearing loss was caused by or a result of military service, the basis for all aspects of the rationale was not adequate. In this regard, part of the basis for the opinion was that the Veteran's service treatment records did not show hearing loss. It appears that the physician made a finding of fact that the Veteran did not suffer any hearing loss in service based on a lack of such in the service treatment records. It appears that she also rejected the explanation that the Veteran provided concerning first experiencing hearing loss in service and that it worsened within the prior 10 years. What the examiner did not provide in the rationale was any medical basis for rejecting the Veteran's assertion of having hearing loss in service despite the records being silent of such. The examiner also cited to a medical article which she claims concluded that research on the effects of exposure to acoustic trauma on hearing sensitivity does not support the concept of a delay between exposure and hearing loss onset. See The Institute of Medicine's report entitled "Noise and Military Service: Implications for Hearing Loss and Tinnitus. The examiner did not include a copy of the article with her opinion or at least a copy of the applicable section. Additionally, the examiner did not state whether there were articles which were contrary to such conclusions. In other words, whether there were articles which connects acoustic trauma to delayed onset hearing loss. In addition, the examiner would need to address whether the facts of the Veteran's case is consistent with any such article's finding, and if not, the examiner would need to provide a rationale for concluding otherwise. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination, with an appropriate medical professional to determine the nature, extent, and etiology of the Veteran's current bilateral hearing loss. The claims folder, including a copy of this remand, must be made available and reviewed by the examiner for review in conjunction with the examination. A notation to the effect that this review has taken place should be annotated in the evaluation report. After reviewing the claims file, the examiner is requested to provide a medical opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that any currently diagnosed bilateral hearing loss is related to the Veteran's in-service noise exposure. The examiner should comment on The Institute of Medicine's report entitled "Noise and Military Service: Implications for Hearing Loss and Tinnitus. The examiner should reconcile this report with his medical opinion. The examiner must state whether there are medical reports or studies that indicate that noise induced hearing loss can have a delayed onset, including years after the exposure event(s). The examiner should reconcile any such studies with his medical opinion. A complete rationale for all opinions and conclusions reached should be provided. The examiner should also consider the Veteran's noise history and find credible the Veteran's exposure to acoustic trauma in service. As it pertains to the Veteran's assertion of first having hearing loss in service and that such continued after service, worsening over the last 10 years, the examiner should state whether there is any medical evidence or principles which supports a conclusion that the Veteran did not have any hearing loss (chronic or acute) in service and then state how that impacts the opinion given. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should 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). 2. Then, readjudicate the claim for service connection for bilateral hearing loss. If the benefit sought remains denied, issue a supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. 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. 2013). ______________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs