Citation Nr: 1332965 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 12-12 887 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for a hearing loss disability. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for tinnitus. 3. Whether new and material evidence has been submitted to reopen a claim for service connection for residuals of head injuries. 4. Entitlement to service connection for a hearing loss disability. 5. Entitlement to service connection for tinnitus. 6. Entitlement to service connection for residuals of head injuries. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2013). The Veteran performed active military service from May 1978 to March 1988. This appeal arises to the Board of Veterans' Appeals (Board) from May 2005 and later rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. A May 2005 rating decision denied service connection for a left ear hearing loss disability, for tinnitus, and for claimed nerve damage to the left side of the face and jaw. An October 2008 RO rating decision determined that new and material evidence had not been submitted to reopen the claims. An appealed April 2010 RO rating decision reopened, but then denied, service connection for a left ear hearing loss disability, for tinnitus, and for nerve damage to the left side of the face and jaw. In March 2012, the RO issued a statement of the case. In August 2013, the Veteran submitted additional evidence. The RO has not had the opportunity to review this new evidence; however, the Veteran has waived his right to initial RO consideration of this evidence. Thus, a remand will not be necessary for this procedural safeguard. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). 38 C.F.R. § 20.1304 (c) (2012). The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. Because the Veteran seeks service connection for residuals of multiple in-service head injuries, the Board has re-characterized the issue on appeal to include consideration of all signs and symptoms that might be related to the head injuries incurred during active service. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that a claimant seeks service connection for the symptoms regardless of how those symptoms are diagnosed or labeled). Service connection for residuals of head injuries is addressed in the REMAND portion of the decision and is remanded to the RO via VA's Appeals Management Center (hereinafter: AMC) in Washington, D.C. FINDINGS OF FACT 1. By rating decision of May 2005, the RO denied service connection for left ear hearing loss, tinnitus, and nerve damage to the left side of the face. 2. The Veteran did not appeal the May 2005 decision, but he did submit new and material evidence within the appeal period. 3. By rating decision of October 2008, the RO determined that no new and material evidence had been submitted to reopen claims of service connection for left ear hearing loss, tinnitus, and nerve damage to the left side of the face. 4. The Veteran did not appeal the October 2008 decision, but he did submit new and material evidence within the one-year appeal period of the October 2008 rating decision. 5. A left ear sensorineural hearing loss disability first arose during active service and has been shown during the appeal period by competent medical evidence. 6. VA has determined that sensorineural hearing loss is a "chronic disease" within the meaning of 38 C.F.R. § 3.309(a). 7. Competent medical evidence suggests that tinnitus is of the same origin as is the left ear hearing loss disability. CONCLUSIONS OF LAW 1. The May 2005 rating decision, which denied service connection for left ear hearing loss, tinnitus, and nerve damage to the left side of the face, is not final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.156, 3.160, 20.1103 (2013). 2. The October 2008 rating decision, which determined that no new and material evidence had been submitted for service connection for left ear hearing loss, tinnitus, and nerve damage to the left side of the face, is not final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.156, 3.160, 20.1103 (2013). 3. New and material evidence has been received within the appeal periods of the May 2005 and October 2008 rating decisions and the original claim remains pending. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (b) (2013). 4. A left ear hearing loss disability is presumed to have been incurred during active military service. 38 U.S.C.A. §§ 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). 5. Tinnitus was incurred in active military service. 38 U.S.C.A. §§ 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As set forth at 38 U.S.C.A. §§ 5103A, 5107, 5126 (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013), VA must notify claimants of certain procedural aspects of their claims and must assist claimants in obtaining evidence that might substantiate their claims. Because the Board is granting the benefits sought by the claimant, any error (if committed) with respect to VA's duty to notify or assist does not result in unfair prejudice to the claimant and need not be discussed. New and Material Evidence When a claim has been disallowed by the RO, "the claim may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered" unless new and material evidence has been presented. 38 C.F.R. §§ 3.156(a), 20.1103 (2013). As noted above, in a May 2005 rating decision, the RO denied service connection for left ear hearing loss, tinnitus, and nerve damage to the left side of the face. The Veteran and his representative were notified of the decision in a letter from the RO, but did not appeal. However, as explained below, because new and material evidence for these claims was received within the appeal period, the May 2005 rating decision did not become final. 38 U.S.C.A. § 7105(b), (c) (West 2002); 38 C.F.R. § 3.156 (a), (b), (c); King v. Shinseki, 23 Vet. App. 464, 467 (2010) (where new and material evidence was submitted within the one-year appeal period but had not been acted upon, the earlier claim could still be pending until a decision had been made on that evidence). Pursuant to 38 C.F.R. § 3.156(a) (2013), new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court found new and material evidence where the new evidence triggered VA's duty to provide a medical opinion. The relevant evidence of record at the time of the May 2005 RO rating decision consists of service treatment records (STRs), VA examination and treatment records, and claims and statements of the Veteran, as discussed below. The STRs reflect that the Veteran's hearing was within normal limits, bilaterally at entry into active military service. Right ear hearing thresholds were 5, 5, 5, 5, 5, and 5 decibels (dB) at 500, 1000, 2000, 3000, 4000, and 6000 Hertz, respectively. Left ear hearing thresholds were identical, that is, 5, 5, 5, 5, 5, and 5 dB at 500, 1000, 2000, 3000, 4000, and 6000 Hertz, respectively. He did not claim any relevant pre-existing condition and the examiner found no relevant pre-existing abnormality. Because the Veteran served as a machine-gunner, a military occupation involving routine exposure to hazardous noise levels, his hearing acuity was often monitored during active service for signs of hearing loss. His STRs contain several DD Forms 2216, Hearing Conservation Data. While not all of these forms need be discussed, the forms reflect that in March 1982, right ear hearing thresholds were 10, 10, 5, 15, 5, and 15 dB at 500, 1000, 2000, 3000, 4000, and 6000 Hertz, respectively. Left ear hearing thresholds were 10, 5, 5, 0, 10, and 15 dB at 500, 1000, 2000, 3000, 4000, and 6000 Hertz, respectively. Significantly, an examiner checked "no" to whether a "significant threshold shift" had occurred. According to instructions on the form, a significant threshold shift means a "20 dB or greater" change. In November 1983, the Veteran underwent a routine military physical examination. Audiometry in November 1983 showed right ear hearing thresholds were 10, 10, 5, 0, 20, and 5 dB at 500, 1000, 2000, 3000, 4000, and 6000 Hertz, respectively. Left ear hearing thresholds were 15, 10, 15, 20, 25, and 5 dB. A DD Form 2216 reflects that in April 1987, right ear hearing thresholds were 70, 70, 70, 70, 75, and 70 dB at 500, 1000, 2000, 3000, 4000, and 6000 Hertz, respectively. Left ear hearing thresholds were 0, 5, 0, 5, 0, and 15 dB at 500, 1000, 2000, 3000, 4000, and 6000 Hertz, respectively. The examiner checked "yes" to a significant threshold shift. April 1987 STRs reflect several complaints of right ear hearing loss and right eardrum pain. On April 7, the Veteran reported an inability to hear anything out of the right ear. Another April 1987 report notes that he was assigned to the rifle range from 1981 to 1983 and that he was exposed to artillery for years. He was treated for otitis media of the right ear. The eardrums were intact. The assessments were resolving otitis media and hearing loss. A DD Form 2216 reflects that in December 1987 the examiner again checked "yes" to a significant threshold shift. Right ear hearing thresholds were 60, 60, 50, 60, 55, and 80 dB at 500, 1000, 2000, 3000, 4000, and 6000 Hertz, respectively. Left ear hearing thresholds were 5, 5, 15, 25, 25, and 30 dB at 500, 1000, 2000, 3000, 4000, and 6000 Hertz, respectively. A February 1988 separation examination report, which is somewhat illegible, notes upward shift in hearing thresholds at various frequencies, although no hearing loss disability is recorded in Box 74, Summary of Defects and Diagnoses. Audiometry showed that right ear hearing thresholds were 10, 10, 10, 35, 30, and 25 dB. Left ear hearing thresholds were 05, 05, 10, illegible, illegible, and 20 dB at 500, 1000, 2000, 3000, 4000, and 6000 Hertz, respectively. The above represents most of the evidence contained in the STRs relevant to whether a left ear hearing loss disability was incurred during active service. The STRs contain additional DD Form 2216 entries, as the Veteran's hearing was tested often, but these entries are cumulative of those mentioned above. With respect to the Veteran's claimed head injury or nerve damage to the left side of the face during active service, multiple head injuries were documented in the STRs during active service. The evidence considered in the May 2005 final rating decision also includes the original claim for benefits, received in September 2004. The Veteran claimed service connection for left ear hearing loss, tinnitus, nerve damage to the left side of the face, the left ear, and the jaw secondary to trauma to the left side of the face and head. He reported in-service treatment for hearing loss and tinnitus in 1987 at the base hospital at Camp Lejeune, North Carolina. In a January 2005 letter to the RO, the Veteran reported that he received several blows to the head and face during active service and each time was treated by a medic or a doctor. During basic training in 1978, while training with pugil sticks, he was knocked unconscious by a blow to the head. While still in basic training, a nearby hand-grenade explosion caused ear-ringing for a couple of days. During his years as a machine-gunner, he did not wear hearing protection. In 1979, he struck his head against a rock and lost consciousness when he fell during a mountain climb in Spain. In 1979 in Turkey, he was tossed about the inside of an armored vehicle and struck his head against the bulkhead and then a machine gun fell onto his head. He reported that for years he was a rifle range instructor at Camp Pendleton, California. He recalled that the wind whipped a heavy dumpster lid onto his head, for which he was hospitalized. He recalled that in 1987, he began complaining about his hearing loss. He recalled that in 1988, he attempted to file service connection claims at the Los Angeles RO, but they rejected his application on the basis that he intended to leave the state soon. The RO obtained VA out-patient treatment reports dated from 1997 to 2004. Of these, the only record of relevance is an August 2004 VA audiometry evaluation report that mentions that the Veteran first noticed a hearing loss during active service and that his hearing had continued to decrease in recent years. He reported a two to three year history of tinnitus. Audiometry revealed that right ear hearing thresholds were 10, 25, 20, 20, 55, 40, 40, and 40 dB at 250, 500, 1000, 2000, 3000, 4000, 6000, and 8000 Hertz, respectively. Left ear hearing thresholds were 25, 45, 40, 50, 55, 65, xx, and 55 dB at 250, 500, 1000, 2000, 3000, 4000, 6000, and 8000 Hertz, respectively. No reading was recorded in the left ear at 6000 Hertz. The pure tone averages were 34 dB for the right ear and 53 dB for the left ear. The Maryland CNC speech recognition scores were 100 percent for the right ear and 80 percent for the left ear. The examiner noted good inter-test consistency. The assessments were mild to moderate high frequency sensorineural hearing loss in both ears; excellent right ear speech recognition; and, good left ear speech recognition. The Veteran underwent a VA audiology evaluation in January 2005. Audiometry revealed that right ear hearing thresholds were 10, 10, 10, 55, and 35 dB at 500, 1000, 2000, 3000, and 4000 Hertz, respectively. Left ear hearing thresholds were 35, 25, 30, 35, and 40 dB at 500, 1000, 2000, 3000, and 4000 Hertz, respectively. The pure tone averages were 28 dB for the right ear and 33 dB for the left ear. The Maryland CNC speech recognition scores were 100 percent for the right ear and 88 percent for the left ear. The summary was mild to moderate sensorineural hearing loss in a noise-induced pattern in the right ear and mild to moderate sensorineural hearing loss in the left ear. The examiner noted that tinnitus arose 4 years earlier, was recurrent in the left ear, was of unknown etiology, but was not of the same etiology as the hearing loss. The Veteran underwent a VA neurology compensation examination in January 2005. The neurologist noted, erroneously, that the Veteran had military service only from 1984 to 1988 (his actual service period is from 1978 to 1988). The neurologist noted that the Veteran denied any nerve damage to the face and stated that his only problem was left ear hearing loss since 1978. All cranial nerves appeared to function normally. The diagnosis was cranial trauma, recurrent, but uncomplicated neurologically. In May 2005, the RO denied service connection for left ear hearing loss, tinnitus, and for nerve damage to the left side of the face/jaw. Concerning the denial of service connection for left ear hearing loss, the RO based the denial on purportedly no complaint of hearing loss or tinnitus due to head trauma or acoustic trauma during active service and that audiograms dated in 1987 and 1988 note normal left ear hearing at the time of discharge. Moreover, there was no evidence of treatment for this condition since active service. Finally, although a left ear hearing loss was currently shown, there was no indication that it was connected to active service. The basis for the denial of service connection for tinnitus was that there was no evidence of treatment for tinnitus since discharge from active service and no evidence that tinnitus arose prior to 4 years earlier. The basis for the denial of service connection for nerve damage to the left side of the face/jaw is that there is no evidence of treatment for this since active service, no evidence of a current complaint, and no evidence of a current disability. In August 2007, the Veteran requested that his three service connection claims be reopened. He claimed service connection for left ear hearing loss, tinnitus, and for nerve damage to the left side of the face, the left ear, and the jaw secondary to trauma to the left side of the face and head. He reported in-service treatment for hearing loss and tinnitus in 1987 at the base hospital at Camp Lejeune, North Carolina. He re-submitted his January 2005 letter to the RO. He submitted an October 2005 private record that notes treatment for left ear pain. Amoxicillin and Vicodin(r) were prescribed. The Veteran also submitted two letters to the RO in August 2007. One letter bears no date, but the other letter is dated August 17, 2007. He reported that he had lost his commercial trucking job because of his hearing loss disability. He reported that he had re-applied for service connection six months earlier, but received no response from the RO. In November 2007, Sandra, an acquaintance, wrote to the RO and reported that the Veteran had a long history of poor hearing. The RO obtained more recent VA out-patient treatment reports. These include a March 2006 VA otolaryngology report. That report notes dizziness and aural fullness. Audiometry and an ENG (electronystagmogram) study were recommended. At an April 2006 VA audiometry consultation, hearing thresholds were measured at eight frequencies, 250, 500, 1000, 2000, 3000, 4,000, 6,000 and 8000 Hertz. Right ear hearing thresholds were 10, 20, 15, 15, 65, 35, 35, and 35 dB at 250, 500, 1000, 2000, 3000, 4,000, 6000, and 8000 Hertz, respectively. Left ear hearing thresholds were 15, 25, 25, 30, 35, 40, X, and 40 dB. Left ear threshold at 6000 Hertz was not reported. The pure tone averages were 33 dB for both ears. The Maryland CNC speech recognition scores were 92 percent for the right ear and 80 percent for the left ear. The examiner also noted that an abnormal oculomotor test result suggested a CNS (central nervous system) dysfunction. An ear-nose-throat (ENT) specialist follow-up was recommended. The April 2006 VA audiometry consultation is highly relevant to the current claims for three reasons. First, it is dated within one year of the May 2005 RO rating decision previously thought to have become final. As noted above, in King, 23 Vet. App. at 467, the Court stressed that where new and material evidence was submitted within the one-year appeal period but had not been acted upon, the earlier claim could still be pending until a decision had been made on that evidence. Second, while the April 2006 VA report was not actually submitted within the one-year appeal period, because it is a VA record, it was constructively within the RO's possession from the date of its creation. In Bell v. Derwinski, 2 Vet. App. 611, 613 (1992), the Court held that where the documents offered are within the Secretary's control and could reasonably be expected to be a part of the record "before the Secretary and the Board," such documents are, in contemplation of law, before the Secretary. Third, the April 2006 VA audiology consultation report triggers VA's duty to assist because the audiology examiner recommended a follow-up by an ENT specialist to further study the Veteran's three claimed conditions. A recommendation for a specialist triggers VA's duty to assist. In Hyder v. Derwinski, 1 Vet. App. 221 (1991), the Court held that VA's duty to assist includes further examination by a specialist, when recommended by VA's own physician. In Shade, 24 Vet. App. at 120 (at footnote 8), the Court found new and material evidence where the evidence triggered VA's duty to provide a medical opinion, stating, "...under McLendon, ordering a VA examination may be obligatory." Thus, the April 2006 VA audiology consultation report destroys the finality of a May 2005 VA rating decision. However, the April 2006 VA audiology consultation report does not automatically reopen the three service connection claims because the RO again denied the those claims in October 2008, after considering the April 2006 VA report. The next question is whether the October 2008 RO rating decision became final. The Veteran underwent a VA otolaryngology consultation in January 2008. The physician noted a complaint of gradually worsening hearing, disequilibrium in recent years, and a history of head trauma and migraines. The remainder of the report appears to be identical to the April 2006 audiometry consultation report. The Veteran underwent a VA audiology consultation in February 2008. Right ear hearing thresholds were 15, 25, 25, 20, 60, 30, 40, and 40 dB at 250, 500, 1000, 2000, 3000, 4,000, 6000, and 8000 Hertz, respectively. Left ear hearing thresholds were 70, 70, 55, 60, 50, 60, 85, and 75 dB. The pure tone averages were 34 dB for the right ear and 56 dB for the left ear. The Maryland CNC speech recognition scores were 84 percent for the right ear and 72 percent for the left ear. The examiner noted unreliable responses, positive Stenger test, and pseudohypacusis in on the left side and recommended retesting. An April 2008 VA otolaryngology consultation report reflects that the Veteran had lost a truck driving job because of vertigo; there had been only one vertigo episode in the recent 6 months. A July 2008 VA otolaryngology consultation report reflects treatment for left ear otitis externa. A July 2008 VA Medical Center emergency room note indicates the Veteran had reported a ringing and burning in the left ear. An August 2008 VA referral audiometry report notes that the examiner was asked to review the file and offer etiology opinions addressing left ear hearing loss and tinnitus. The examiner noted, erroneously, that the Veteran had served in active military service from 1984 to 1988 (his actual service period is from 1978 to 1988). The Veteran's hearing was tested. Maryland CNC word recognition scores were 76 percent in the right ear and 48 percent in the left ear. The audiologist stated, "It is as likely as not that the tinnitus is related to the same etiology, noise exposure, as the hearing loss." The audiologist found that the current test results were unreliable and declined to offer a more clear etiology opinion. The audiologist reported, "Again, it is difficult to give my opinion with the unreliable thresholds given by the Veteran at this time." In an October 2008 rating decision, the RO determined that no new and material evidence had been submitted to warrant reopening any of the three service connection claims. While the Veteran did not appeal that decision, the RO did, within the one-year appeal period, receive additional relevant evidence. The relevant evidence is a November 2008 VA audiology consultation report. Because it is a VA medical record, it is deemed to be in the RO's possession at the date of creation, even though the RO obtained the record later. Bell, 2 Vet. App. at 613. The next question is whether the November 2008 VA audiology consultation report is sufficiently new and material evidence to warrant reopening any of the three previously denied service connection claims. If so, then this evidence destroys the finality of an otherwise-unappealed October 2008 VA rating decision. King, 23 Vet. App. at 467. The prior VA audiometry evaluation report, dated in August 2008, reflects that no etiology opinion would be offered because the audiometry results themselves were unreliable. The November 2008 VA audiometry consultation report contains no indication of unreliability of the data contained therein and therefore triggered VA's duty to obtain a nexus opinion concerning the etiology of the left ear hearing loss disability, tinnitus, and nerve damage to the head. 38 U.S.C.A. § 5103A; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Thus, the October 2008 rating decision is not final and, like the May 2005 rating decision, remains pending. While the current appeal is purportedly taken of the April 2010 RO rating decision, as explained above, neither the May 2005 rating decision nor the October 2008 rating decision became final because new and material evidence was submitted within their respective one-year appeal periods. If new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). We now turn to service connection for the claimed disabilities. Service Connection for Left Ear Hearing Loss Disability Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131, 1137. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent;" however, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases, such as organic diseases of the nervous system, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013). Organic diseases of the nervous system are included among the diseases listed as chronic diseases under the law. 38 U.S.C.A. § 1101 (3); 38 C.F.R. § 3.309(a). VA considers high frequency sensorineural hearing loss to be an organic disease of the nervous system. See Memorandum from Under Secretary of Health to Under Secretary for Benefits, Characterization of High Frequency Sensorineural Hearing Loss, October 4, 1995; but see Walker, 708 F.3d at 1340 (noting in a claim for service connection for bilateral hearing loss that the Veteran "seeks compensation for a condition that is not listed as a chronic disease in [section] 3.309(a)). Where a chronic disease under § 3.309(a) is "shown as such in service" ("meaning clearly diagnosed beyond legitimate question" Walker, 708 F.3d at 1339, or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In cases where a chronic disease is "shown as such in service", the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service­connected disability compensation is sought." Walker, 708 F.3d at 1336. Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. For claims for service connection for hearing loss or impairment, VA has specifically defined what is meant by a "disability" for the purposes of service connection. 38 C.F.R. § 3.385. "[I]mpaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent." 38 C.F.R. § 3.385. While VA had determined that no hearing loss disability exists unless the above-mentioned thresholds are met, the Court has determined that the threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In this case, the STRs clearly document the onset of a left ear hearing loss disability. Audiometry reports dated within the appeal period continue to show a left ear hearing loss disability. Although April 2010 and November 2011 VA audiometry reflect that left ear hearing was within normal limits, a left hear hearing loss disability was shown at the time that the claim was filed. In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court stressed that the specific service connection requirement of a current disability is satisfied when the disability is "current at the time a claim is filed" even where the disability resolves prior to the Secretary's adjudication of the claim. See also Gilpin v West. 155 F.3d 1353 (Fed. Cir. 1998). As set forth above, because VA considers a high frequency sensorineural hearing loss to be a chronic disease subject to presumptive service connection, the Veteran need not show a causal relationship where the chronic disease first arose during active service. Service connection may be granted without any evidence of a link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. After consideration of all the evidence of record, including the testimony, the Board finds that the evidence favors presumptive service connection for a left ear hearing loss disability. Service Connection for Tinnitus The STRs reflect that the Veteran did not claim any relevant pre-existing condition and the examiner found no relevant pre-existing abnormality. No mention of tinnitus was made during active service. In September 2004, the Veteran claimed service connection for tinnitus. He reported in-service treatment for tinnitus in 1987 at the base hospital at Camp Lejeune, North Carolina. An August 2004 VA audiometry evaluation report mentions that the Veteran reported a two to three year history of tinnitus. According to an August 2004 VA audiometry evaluation report, the Veteran reported a two to three-year history of tinnitus. The examiner noted that tinnitus arose 4 years earlier, was recurrent in the left ear, was of unknown etiology, but was not of the same etiology as the hearing loss. In a January 2005 letter to the RO, the Veteran reported that while in basic training, a nearby hand-grenade explosion caused ear-ringing for a couple of days. During his years as a machine-gunner, he did not wear hearing protection. He reported that for years he was a rifle range instructor at Camp Pendleton, California. In May 2005, the RO denied service connection for tinnitus. The reason was that there was no evidence of treatment for tinnitus since discharge from active service and no evidence that tinnitus arose prior to 4 years earlier. A March 2006 VA otolaryngology report notes dizziness and aural fullness. Audiometry and an ENG study were recommended. An April 2006 VA audiometry consultation report notes that an abnormal oculomotor test result suggested a CNS dysfunction. An ENT specialist follow-up was recommended. The Veteran underwent VA otolaryngology consultations in January and February 2008; however, tinnitus is not mentioned in those reports. A July 2008 VA Medical Center emergency room note indicates the Veteran had reported a ringing and burning in the left ear. An August 2008 VA referral audiometry report notes that the examiner was asked to review the file and offer an etiology opinion addressing tinnitus. The audiologist stated, "It is as likely as not that the tinnitus is related to the same etiology, noise exposure, as the hearing loss." The audiologist then found that the current test results were unreliable and declined to offer a more clear etiology opinion. The audiologist offered an addendum in September 2008. The audiologist again cautioned that only speculation could be offered, but then further reported that because tests results were unreliable, no conclusion could be drawn, but that the test result show that hearing loss and tinnitus are not of service origin, because of inconsistent results. A November 2011 VA compensation examination report reflects that the examiner dissociated tinnitus from head trauma during active service on the basis that the STRs are silent for tinnitus and that the onset of tinnitus was in 1989. The examiner did not address whether noise exposure during active service caused tinnitus. In June 2013, the Veteran testified before the undersigned Veterans Law Judge that various episodes of ear ringing began during active service, beginning in 1978. The most favorable medical evidence in this case is contained in the August 2008 VA audiometry examination report. The audiologist found that the Veteran's tinnitus and his hearing loss are of the same etiology. Because the evidence shows that a left ear hearing loss disability arose during active service, the August 2008 opinion tends to attribute tinnitus to active service. However, the favorable August 2008 opinion is controverted by an opinion offered in August 2004 wherein an examiner concluded that tinnitus was not of the same etiology as the hearing loss. While both opinions appear to be based on reasonably correct facts, they are both supported by minimal rationale, which tends to diminish the persuasive value of each. Regardless of their reduced persuasive, or probative, value, even if both opinions were of equal weight, the outcome would be one of relative equipoise. An unfavorable medical opinion is contained in the November 2011 VA compensation examination report; however, that medical opinion dissociates tinnitus from a head injury, not from noise exposure. Therefore, it does not tend to support or controvert either the August 2004 VA etiology opinion or the August 2008 VA etiology opinion. After consideration of all the evidence of record, including the testimony, the Board finds that the evidence for service connection for tinnitus is in relative equipoise. The benefit of the doubt doctrine will therefore be applied. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, supra. Service connection for tinnitus will therefore be granted. ORDER Service connection for a left ear hearing loss disability is granted. Service connection for tinnitus is granted. REMAND As noted earlier, where a disability is shown at any time during the appeal period, the requirement of a current disability is satisfied. McClain v. Nicholson, 21 Vet. App. at 321. Although a February 2012 VA traumatic brain injury examiner found no current residual of in-service head injuries, earlier in the appeal period, multiple signs and symptoms that might be residuals of head injuries were shown. The STRs reflect that only two head scars were noted at entry into active military service. The May 1978 enlistment examination report notes a one-inch scar on the chin and an undescribed scar to the right of the nose; however, the separation examination report also mentions a six-inch scar on the back of the head. A dental health questionnaire, which the Veteran signed and dated June 6, 1978, notes "traumatic injury to head possible internal injury." The Veteran was treated in June 1979 for another head injury. The STR mentions that the Veteran had stumbled and hit his head. He was air-evacuated from the ship to Guam for observation. The impression offered was: neurological observation after insignificant head trauma. Another report, date obliterated, notes that a skull series showed no evidence of fracture; Impression: concussion. A March 1980 STR notes trauma to head, neck, chest, and abdomen due to a mugging a few days earlier. The Veteran reported having been kicked in the head. A May 1982 treatment report notes a head injury due to a dumpster lid striking the Veteran. The report mentions unconsciousness. The Veteran completed a report of medical history questionnaire in November 1983 and checked "yes" to having had or currently having: head injury; paralysis; and, loss of consciousness. In June 1987, the Veteran was treated for a mouth injury after a bottle had exploded into the mouth. The Veteran was seen in July 1987 for left mandible parasthesia reportedly due to left-side trauma. The consultation report, partly illegible, notes that patient was advised to "live with his dysesthesia" as an attempt at repair would be unsuccessful. The examiner also advised, "Would still use local anesthesia when performing operative procedures on lower left [illegible]." A March 2006 VA otolaryngology report notes dizziness and aural fullness. The examiner also noted that an abnormal oculomotor test result suggested a CNS dysfunction. An ENT specialist follow-up was recommended. A January 2008 VA audiologist reported a complaint of disequilibrium in recent years and a history of migraines. An April 2008 VA otolaryngology consultation report reflects one vertigo episode in the recent 6 months. Finally, although the February 2012 traumatic brain injury examiner reported that the Veteran exhibited no scar relevant to the claim, the Veteran's separation examination report clearly notes a 6-inch scar on the back of the head that was not there at entry into active military service. The February 2012 examination report must therefore be returned to the examiner for clarification and an addendum report addressing the etiology of the Veteran's dizziness, aural fullness, suggested CNS dysfunction, disequilibrium in recent years, history of migraines, vertigo, and six-inch scar on the back of the head. See 38 C.F.R. §§ 4.2, 19.9(a) (2013); Bierman v. Brown, 6 Vet. App. 125, 129 (1994); also see 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(b); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, the case is REMANDED for the following action: 1. VA should return the claims files to the February 2012 VA examining traumatic brain injury physician for an addendum report. 2. The physician should review the pertinent medical history, especially the multiple in-service head injuries documented in the claims files and the post-service medical evidence of dizziness, aural fullness, suggested CNS dysfunction, disequilibrium in recent years, history of migraines, vertigo, and the six-inch scar on the back of the Veteran's head, offer a diagnosis or diagnoses, if possible, for these signs and symptoms, and then address whether it is at least as likely as not (50 percent or greater probability) that any of those signs or symptoms is related to active military service. The physician should offer a rationale for any conclusion in a legible report. The Veteran may be re-examined, if necessary. If the requested physician is not available, a qualified substitute may be used. 3. After the development requested above has been completed to the extent possible, the RO should re-adjudicate the service connection claim. If the benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given an opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, if otherwise in order. The purposes of this remand are to comply with due process of law and to further develop the claim. No action by the Veteran is required until he receives further notice; however, the Veteran is advised that failure to report for examination, without good cause, may have adverse consequences on his claim. 38 C.F.R. § 3.655 (2013). The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the above. The Veteran 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 or by the Court 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). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs