Citation Nr: 1333742 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 09-26 909 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to April 1972. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the RO. The Board has considered documentation included in Virtual VA. The claim of service connection for bilateral hearing loss is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The currently demonstrated tinnitus is shown as likely as not to be due to the Veteran's documented exposure to hazardous noise levels that began incident to his duties as a vehicle operator during service. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, his disability manifested by tinnitus is due to disease or injury that was incurred in active service. 38 U.S.C.A.§§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. To the extent that the action taken hereinbelow is favorable to the Veteran, a discussion of VCAA is not required at this time. Analysis Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (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. Morris v. Shinseki, 678 F.3d 1346, 1353 (Fed. Cir. 2012) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). In doing so, equal weight is not accorded to each piece of evidence in the record as every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert, 1 Vet. App. at 53; see also 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" "to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. A layperson is competent to report on the onset and continuity of his current symptomatology. 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 v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (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, 433 (2011); see also Jandreau, 492 F.3d at 1372. The evidence confirms the Veteran's current diagnosis of tinnitus. See January 2009 VA examination report. As for the in-service incurrence of tinnitus, the Veteran reported to the January 2009 VA examiner that his tinnitus arose approximately 37 years ago. This places the onset of the condition in 1972. He reports being exposed to high levels of noise from the flight line, jet engines, diesel trucks, and T-38 training jets. In a December 2008 statement, the Veteran reported that, as a heavy equipment operator in the Air Force, one of the vehicles he drove was an international crash recovery crane which had vertical exhaust stacks within 18 inches of the driver's head. The vehicle was extremely loud. After driving this vehicle, the Veteran's ears would ring, and most of the time he ended his day with a headache. He also reported that he was tasked with taking the air crews to the planes while the planes were running. The Veteran contended that the jets were very loud, especially if the one in front or beside him began to taxi off because the pilot had to really run the engine up to start to move. Initially, the Board notes that the appellant is competent to describe in-service ringing in the ears. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 470 (1994); Washington v. Nicholson, 19 Vet. App. 362 (2005). Moreover, his DD Form 214 confirms that he served as a vehicle operator. The United States Department of Defense (DOD) has established lists of military occupational specialties (MOS) and the corresponding probability of hazardous noise exposure for each branch of the Armed Services. Here, the MOS of vehicle operator in the United States Air Force been identified as an MOS with "moderately probable" hazardous noise exposure. See Duty MOS Noise Spreadsheets, Veterans Benefits Administration Fast Letter 10-35 (Dep't of Veterans Affairs, Sept. 2, 2010). Further, the RO has already conceded the presence of military noise exposure. See March 2009 Rating Decision. As such, the Board accepts that the Veteran experienced in-service noise exposure, as alleged. Tinnitus is not among the chronic disabilities listed in 38 C.F.R. § 3.309(a), and may not be established as a chronic disease diagnosed in service or on the basis of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, the Veteran's claim for tinnitus may be established if competent evidence, including lay evidence, establishes that tinnitus had its onset in service or is related to service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 n. 1 (Fed. Cir. 2006) (finding that the adjudicator must consider whether the lay statements of record presented sufficient evidence of the etiology of the Veteran's disability). The Veteran's statements regarding the in-service onset of ringing of the ears are competent because the matter is within lay observation. See Buchanan, 451 F.3d at 1336-37; see also Jandreau, 492 F.3d at 1377. Further, his account is internally consistent and consistent with the other evidence of record, including his DD-214 Form. The VA examiner found that tinnitus was less likely than not related to service because of the absence of treatment for tinnitus in service. Additionally, the examiner felt the tinnitus was more likely related to hearing loss and the Veteran's post-service occupational and recreational noise exposure. In this regard, the Veteran reported some occupational noise exposure from concrete construction. He reported recreational noise exposure from hunting and target shooting, but stated that he used hearing protection. The Board finds the January 2009 VA examiner's opinion concerning the etiology of tinnitus to be of low probative value. The examiner relied, in part, on the absence of service treatment records supporting the claims, but did not consider the competent reports of the Veteran and the lay evidence as to the onset of symptoms. In Dalton v. Nicholson, 21 Vet. App. 23 (2007), it was determined that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and, instead, relied on the absence of evidence in the Veteran's service treatment records to provide a negative opinion. Additionally, the examiner did not explain why the Veteran's current tinnitus was unrelated to his accepted in-service noise exposure. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."); see also Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 302 (2009). It is unclear from the report why the Veteran's tinnitus would be more likely related to his limited amounts of post-service occupational noise, and noise during hunting while wearing ear protection. Based on a careful review of the record, the Board finds the evidence to be in relative equipoise in showing that the current tinnitus as likely as not is the result of the exposure to a pattern of excessive and harmful noise levels beginning with the Veteran's duties during service. The Board finds the Veteran's lay statements regarding onset of tinnitus to be credible evidence, and of greater probative value than the opinion of the VA examiner. See Buchanan, 452 F.3d at 1335; see also Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005) (it is the Board's responsibility, as fact-finder, to determine the credibility and weight to be given to the evidence). Therefore, after resolving all reasonable doubt in the Veteran's favor, service connection is warranted. The Veteran has a current diagnosis of tinnitus and the competent, credible and persuasive evidence places the onset of this condition in service. See Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. ORDER Service connection for tinnitus is granted. REMAND After carefully considering the record, the Board finds that the claim remaining on appeal must be remanded for further development. Specific to the claim of service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. On VA examination in January 2009, a hearing loss disability for VA purposes was not demonstrated by the Veteran's puretone threshold values or his speech recognition scores. The post-service treatment records also do not document a hearing loss disability for VA purposes. However, prior to adjudicating this claim, the Board finds that updated treatment records be obtained, and an additional examination be performed. The Veteran reports having functionally severe hearing loss. He reports having a hard time hearing female voices and customers at his job if there is any background noise at all. He reported to the VA examiner that his hearing difficulty was affecting his performance at work at Home Depot. He reported that he could not hear the radio while running equipment or hear the spotter who was watching for people who move the barricades. He reports having to ask people to repeat themselves and only hearing what is said closest to him. As discussed, the Board has conceded in-service noise exposure. Further, the service treatment records reflect a decline in hearing from the time of the Veteran's entrance examination to his separation from service. Indeed, the VA examiner conceded that "it [was] noted that from the time of enlistment to separation, there was a worsening of thresholds at all frequencies in both ears." The most current treatment notes of record are dated from January 2009, and as noted, the VA examination was conducted in November 2009, approximately 4 years ago. Prior to appellate adjudication of this claim, updated records and an updated examination should be obtained. Accordingly, this remaining matter is REMANDED to the RO for the following action: 1. The RO should take appropriate steps to ask the Veteran to identify all VA treatment he has received for his claimed hearing loss since 2009. Then, the RO should obtain copies of all outstanding VA treatment records and associate them with the record. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of those records. The Veteran also should be notified that he may submit medical evidence or treatment records to support his claim. 2. The RO then should have the Veteran scheduled for a VA examination to ascertain the nature and likely etiology of his claimed bilateral hearing loss. The examiner is to be provided access to the claims folder and Virtual VA in connection with the evaluation. Any and all indicated studies deemed necessary by the examiner should be accomplished. After reviewing the entire record and examining the Veteran, the examiner should offer an opinion addressing whether it is at least as likely as not (50 percent probability or greater) that the Veteran suffers from bilateral hearing loss disability that is due to the exposure to hazardous noise level or other event or incident of his period of active service. In rendering any opinion, the examiner must specifically consider and discuss the conceded in-service noise exposure, and worsening of thresholds at all frequencies in both ears between the time of entry and separation from service. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles. 3. The Veteran is hereby notified that it is his responsibility to report for any examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). 4. After the requested examination has been completed, the RO should review the examination report to ensure it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the RO must implement corrective procedures at once. 5. After completing all indicated development, the RO should readjudicate the claim remaining on appeal in light of all the evidence on file. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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. 2012). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs