Citation Nr: 1333496 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 10-30 498 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for a bilateral hearing loss disability. 3. Entitlement to service connection for erectile dysfunction, to include as secondary to diabetes mellitus, type II. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD J. Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1968 to March 1971, to include service in the Republic of Vietnam from January 1969 to January 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal of October 2009 and September 2010 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO), which denied claims for service connection. The issue of erectile dysfunction 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 bilateral hearing loss for VA compensation purposes that is related to acoustic trauma during service. 2. The Veteran has tinnitus that is related to acoustic trauma during service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was incurred as a result of his military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2013). 2. Tinnitus was incurred as a result of his military service. 38 U.S.C.A. § 1101 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, it should be noted that in this decision, the Board grants service connection for bilateral hearing loss and for tinnitus. These actions constitute a complete grant of the benefits sought on appeal. Therefore, a discussion of VA's duties to notify and assist is unnecessary. The Veteran claims service connection for bilateral hearing loss and for tinnitus, which he asserts are due to his exposure to loud noise and resulting acoustic trauma from firing weapons, explosions during training, and driving a supply truck. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Disorders diagnosed after discharge may still be service connected if all of the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). For purposes of applying the laws administered by VA, impaired 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 above frequencies 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; see also Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes). With audiological examinations, the threshold for normal hearing is from 0 decibels (dB) to 20 dB; higher threshold levels indicate some degree of hearing loss. Hensley, 5 Vet. App. 155. However, unless a hearing loss as defined under 38 C.F.R. § 3.385 is shown, VA may not grant service connection for hearing loss. The Veteran's DD 214 shows that he was a Supply Sergeant/Armorer in Vietnam. Service treatment records show that when hearing was measured in March 1968 and January 1971, both times by pure tone audiometric testing, hearing was within normal limits. A VA audiological consultation report dated in January 2010 shows that the Veteran reported hearing loss and tinnitus. The VA audiologist reported that audiometric testing revealed bilateral sensorineural hearing loss (SNHL). The audiometric data used to formulate this opinion is not included in the record. On VA audiological examination in July 2010, the Veteran complained of difficulty hearing and constant ringing in the ears. An audiogram at that time showed pure tone thresholds, in decibels, at 500, 1000, 2000, 3000 and 4000 Hertz of 70, 80, 80, 80, and 85 dB in the right ear, and 80, 85, 85, 90, and 95 dB in the left ear. Speech discrimination testing was 85 percent in the right ear and 85 percent in the left ear. These pure tone thresholds in decibels meet the requirements of 38 C.F.R. § 3.385 to be considered a hearing loss disability for VA purposes. The examiner diagnosed the Veteran as severe to profound SNHL bilaterally and recurrent tinnitus. The examiner expressed the opinion that the etiology of tinnitus is at least as likely as not associated with hearing loss. The examiner also expressed the opinion that it is at least as likely as not that the hearing loss is due to the Veteran's military noise exposure. The rationale was that the DD 214 shows that the Veteran experienced noise exposure in service. As the VA audiologist's opinions were based on audiometric findings, review of the claim file, and interview and examination of the Veteran, they are competent medical evidence that the Veteran's current hearing loss and tinnitus are related to service. The Board attributes significant probative value to these opinions. The Veteran and his servicemen authored a number of statements to VA. The statements consistently show that the Veteran experienced noise exposure during service and that he complained of hearing loss and ringing in the ears in and since service. Specifically, they show that the Veteran served as a Supply Sergeant/Armorer in Vietnam. In this capacity, he supplied and repaired weapons for his unit. His duties included firing weapons, which he often did without ear protection. The statements also described a variety of noise exposure during basic training and while driving a supply truck. As a lay person is competent to report symptoms of hearing loss and tinnitus, these statements are competent evidence that the Veteran experienced symptoms of hearing loss and tinnitus in and since service. As these statements are uncontroverted by the evidence of record, they are deemed credible. The Board attributes significant probative value to these statements. The Veteran is not required to show that he met the criteria of 38 C.F.R. § 3.385 at separation if he has a hearing loss disability otherwise shown to have begun in service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The regulation does not preclude service connection for a hearing loss disability first diagnosed after service. Hensley, 5 Vet. App. at 159. The record reveals that the competent medical and lay evidence unanimously shows that the Veteran's hearing loss and tinnitus are related to service. As such, service connection for a bilateral hearing loss disability and tinnitus is warranted. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. REMAND In a VA examination report dated in August 2009, the VA examiner opined that the Veteran's erectile dysfunction is not related to his service-connected diabetes mellitus because erectile dysfunction began before diabetes mellitus was diagnosed. However, in August 2010, the Veteran submitted a medical record from Salisbury VAMC, dated on July 22, 2010, which shows that diabetes mellitus was diagnosed before erectile dysfunction. As the August 2009 report is based upon an inaccurate factual premise, a new examination is needed. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Accordingly, the case is REMANDED for the following action: 1. Obtain all relevant treatment records for the Veteran from Salisbury VAMC for the period from May 2010 to present. If such records are unavailable, the Veteran's claim file should be clearly documented to that effect and the Veteran should be notified in accordance with the provisions of 38 C.F.R. § 3.159(e). 2. Then, schedule the Veteran for an appropriate VA examination. The claims folder must be made available and reviewed by the examiner and all necessary tests should be conducted. The examiner must opine as to whether it is at least as likely as not that erectile dysfunction is caused by, at least in part, the Veteran's service-connected diabetes mellitus. The examiner must also state whether it is at least as likely as not that the Veteran's erectile dysfunction was aggravated by his service-connected diabetes mellitus. In formulating an opinion, consider that the Veteran's assertions (i) that the onset of erectile dysfunction was contemporaneous with the diagnosis of diabetes mellitus in October 2008 and (ii) that he had been taking hypertension medications for 15 years without systems of erectile dysfunction. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must 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). 3. Then readjudicate the appeal. If the benefit (or either benefit, or any of the benefits, as appropriate) sought remains (or remain, as appropriate) denied, issue a Supplemental Statement of the Case and return the case to the Board. 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs