Citation Nr: 1334027	
Decision Date: 10/28/13    Archive Date: 11/06/13

DOCKET NO.  11-20 936	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUES

Entitlement to service connection for bilateral tinnitus.

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

A.P. Armstrong, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1966 to April 1969.
This case comes before the Board of Veterans' Appeals (Board) on appeal from July 2010 and August 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho, which denied service connection for hearing loss and tinnitus.  When the Veteran moved to Oregon, VA transferred his claim to the RO in Portland, Oregon, which certified this appeal.  

The Veteran requested a Board hearing at the RO.  However, he failed to appear for the scheduled hearing in June 2012.  As discussed below, notices were sent to his last known address, but it is unclear if this address was correct.

In addition to the paper file, the Veteran also has a Virtual VA and VBMS paperless claims file, which are highly secured electronic repositories that are used to store and review documents involved in the claims process.  The Board has reviewed these electronic records and any further development or adjudication of this matter should take into account the existence of this paperless claims file.

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

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. 

Second, an in-service incurrence or injury is shown by the Veteran's reports of in-service acoustic trauma.  He reports that during service he was exposed to acoustic trauma from engine noise and artillery fire while he was on a Howitzer.  His reports are consistent with his military occupation of track mechanic.  As such, his reports are competent and credible.  U.S.C.A. § 1154(a).  

Finally, there is evidence of a nexus between the in-service acoustic trauma and current tinnitus.  Throughout the claims process, including during the 2010 VA examination and in his claim, the Veteran reported experiencing ringing in his ears since service.  Although the VA examiner gave a negative opinion as to the etiology of tinnitus, she did not appear to consider the Veteran's reports, and therefore her opinion is based on incomplete evidence and is less probative.  Moreover, service connection may be proven by lay statements, including those of persistent and observable symptoms.  Charles, 16 Vet. App. at 374; see also 38 U.S.C.A. § 1154(a).  There is nothing to contradict the Veteran's competent reports, and they are deemed credible.  

Thus, in the present case, service connection is being awarded based on continuity of symptomatology.  In this regard, the Board calls attention to Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), which holds that service connection based solely on continuity of symptomatology is only warranted where the claimed disability is a "chronic disease" under 38 C.F.R. § 3.309(a).  Such is the case here.  Indeed,    
it is appropriate to consider high frequency sensorineural hearing loss and tinnitus as organic diseases of the nervous system and, therefore, subject to presumptive service connection.  See Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995; 38 C.F.R. § 3.309(a) (2013).

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).  The benefit of the doubt has been applied and the Veteran is granted service connection.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.


ORDER

Service connection for tinnitus is granted.



REMAND

The Veteran's claim for service connection for hearing loss is remanded for an additional medical opinion and to attempt to provide a Board hearing.

As noted above, the Veteran failed to appear for a scheduled Board hearing at the RO in June 2012.  VA sent notice twice to his last known address, but such notice was returned as undeliverable.  Apparently, the Veteran had moved and did not provide a forwarding address.  Accordingly, VA should attempt to obtain the correct address for the Veteran, schedule him for another hearing before a Veterans Law Judge at the local RO, and send him notice.  (The hearing should be scheduled following the completion of the remaining development requested in this remand.)

Additionally, the Veteran has reported exposure to acoustic trauma during active service and indicated that he was diagnosed with hearing loss in the 1970s, or the decade right after service, and again in 1986.  The VA examiner in June 2010 gave a negative etiology opinion based solely on the Veteran's lack of medical treatment in the intervening time since service.  As such, her opinion is insufficient and the claim is remanded for an addendum opinion.  See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (conclusory opinions, which do not consider lay statements are impermissible).

Accordingly, the case is REMANDED for the following action:

1. Forward the claims file to the June 2010 examiner, or another appropriate VA provider if she is unavailable, to provide an addendum opinion for service connection for hearing loss.  The examiner should provide answers to the following: 

a. Was the Veteran's current hearing loss at least as likely as not (probability of 50 percent or more) caused by in-service noise exposure?

b. If not, was the Veteran's current hearing loss at least as likely as not caused by his service-connected tinnitus?  If not, then was the current hearing loss at least as likely as not aggravated (permanently worsened beyond it natural progression) by the 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, specifically his reports of being diagnosed with hearing loss in the 70s.  Such reports cannot be rejected merely because there is an absence of supporting clinical evidence.  

If any requested opinion cannot be offered without resort to speculation, state whether the inability is due to the absence of any evidence or is due to the limits of scientific or medical knowledge.

2. 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.

3. After the above tasks are completed, attempt to obtain the correct address for the Veteran.  If one can be obtained that is different from the prior address to which notice was sent, schedule the Veteran for a Board hearing and send him notice.

4.  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).



_____________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs