Citation Nr: 1332490	
Decision Date: 10/21/13    Archive Date: 10/24/13

DOCKET NO.  09-23 733	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUES

1. Entitlement to service connection for tinnitus.

2. Entitlement to service connection for hearing loss.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

A.P. Armstrong, Associate Counsel





INTRODUCTION

The Veteran served on active duty from October 1965 to May 1968.  He also had reported service in the Army National Guard and Reserves from November 1963 to October 1965 and subsequent to May 1968.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which denied service connection for hearing loss and tinnitus.  

The Veteran requested a Board hearing at his local VA office.  However, in May 2010, he withdrew his request for such a hearing.

The issue of 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

The Veteran's current tinnitus began in active service.


CONCLUSION OF LAW

The criteria for service connection for tinnitus have been met.  38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

As the Board's decision herein to grant service connection for tinnitus constitutes a full grant of the benefit sought on appeal, no further action is necessary to comply with the Veterans Claims Assistance Act of 2000 and implementing regulations.  

Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110.  To establish entitlement to service-connection, evidence must show: "(1) the existence of a present disability; (2) 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."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010).

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.

The Veteran is competent to identify tinnitus, as this condition is observable by his own senses.  See Charles v. Principi, 16 Vet. App. 370, 374 (2002).  He is also competent to report the onset and persistence of tinnitus symptoms.  See id.  

First, the Veteran has a current tinnitus disability.  He has reported experiencing tinnitus, or ringing in his ears, during the current appeal.  Further, the VA examiner in December 2007 diagnosed tinnitus.

An in-service incurrence or injury is shown by the Veteran's reports of in-service acoustic trauma.  He reports that during service he trained other military personnel in weapons techniques and was exposed to loud noises.  At the VA examination he reported the onset of tinnitus in service following acoustic trauma in March 1966.  His reports are consistent with his military occupation of Headquarters Unit Commander.  His reports are competent and credible.

Finally, there is evidence of a nexus between the in-service acoustic trauma and tinnitus and current tinnitus.  During the 2007 VA examination, the Veteran reported a continuity of symptomatology.  Although the VA examiner was unable to give an etiology opinion, service connection for tinnitus may be proven by lay observations, including those of persistent and observable symptoms.  Charles, 16 Vet. App. at 374; see also 38 U.S.C.A. § 1154(a).  Further, in a brief to the Board, the Veteran's representative cited a Mayo Clinic article, which explains that exposure to loud noise, such as firearms, was a common cause of tinnitus.  There is nothing to contradict the Veteran's competent reports, and they are deemed credible.

All of the elements needed for service connection have been demonstrated, and service connection for tinnitus is established.  See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).


ORDER

Service connection for tinnitus is granted.


REMAND

Although the RO reported in the statement of the case that it had considered service treatment records for the period of the Veteran's active duty, the claims file contains no such records.  VA is required to make further efforts to obtain the records or search alternate sources.  Washington v. Nicholson, 19 Vet. App. 362 (2005).  

The VA examiner reported that she was unable to come to an opinion without resorting to speculation; she attempted to provide reasons why this was so, but they do not explain her inability to provide the needed opinion.  She also appears to have considered an inaccurate and incomplete history.

The Veteran's periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) have not been verified, nor is it clear whether additional medical records for these periods are available.  VA has a duty to obtain these records.  38 U.S.C.A. § 5103A(a)-(b) (West 2002 & Supp. 2013).

Accordingly, the case is REMANDED for the following action:

1.  Ask the Veteran to provide any service treatment and personnel records in his possession.

3.  Thereafter, request verification of the Veteran's periods of ACDUTRA and INACDUTRA.  Specific dates of such service are needed.

4.  Obtain service treatment records for the Veteran's period of active duty and any outstanding service treatment records additional periods of ACDUTRA and INACDUTRA.

If these records are unavailable, document efforts to search alternate sources of records.

5.  Requests for service department records should continue until they are obtained unless it is reasonably certain that the records do not exist or that further efforts to obtain them would be futile.  

If any records cannot be obtained, the Veteran should be notified of the unsuccessful attempts and told of what additional actions will be taken with regard to his claim, including its denial.

6.  After completing the above, schedule the Veteran for a new VA examination to obtain an opinion as whether current hearing loss is related to service. 

The examiner should review the entire claims file, including any relevant records in an electronic format.  Such review should be noted in the examination report.

The examiner should answer the following:

a.  Is the Veteran's current hearing loss disability at least as likely as not (probability of 50 percent or more) caused or aggravated by noise exposure or other disease or injury during active duty?

b.  If hearing loss is not related to active duty service, was the disability at least as likely as not caused or aggravated by injury or disease during ACDUTRA service?

c.  If not, was the Veteran's current hearing loss disability at least as likely as not incurred or aggravated by injury during INACDUTRA?  (Please note that acoustic trauma will be considered an injury for these purposes) 

f.  If none of the above; was the Veteran's current hearing loss disability at least as likely as not caused by or aggravated beyond the natural progression by his service-connected tinnitus?

If aggravation is found, please state whether there is medical evidence created prior to the aggravation or between the time of aggravation and the current level of disability that shows a baseline level of disability prior to the aggravation.

The examiner must provide reasons for each opinion that takes into account the Veteran's reports of injury, treatment, symptoms, and diagnoses.  Such reports cannot be rejected merely because there is an absence of supporting clinical evidence.  All lay and medical evidence of record should be considered.

If any requested opinion cannot be offered without resort to speculation, court cases require that the examiner explain why the opinion cannot be offered, and state whether the inability is due to the absence of any evidence or is due to the limits of scientific or medical knowledge.

7.  Review the examination report to ensure that it contains the information, opinions, and rationales requested in this remand.  If it does not, an addendum should be requested.

8.  If any benefit sought on appeal remains denied, issue a supplemental statement of the case.  Then, return the case to the Board, if otherwise in order.

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).

______________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs