Citation Nr: 1334291 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 11-21 178 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. Havivi, Associate Counsel INTRODUCTION The Veteran had service from August 1980 to August 1984. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. A review of the Virtual VA paperless claims processing system and the Veterans Benefits Management System reveals no additional records which are pertinent to the present appeal. The issue of bilateral 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. FINDING OF FACT The Veteran has been shown to currently have tinnitus that is as likely as not related to his military service. CONCLUSION OF LAW The requirements for entitlement to service connection for tinnitus have been met. 38 U.S.C.A. §§ 1101, 1131, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has specified duties to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The Board has considered whether further development and notice under the Veterans Claims Assistance Act of 2000 (VCAA) or other law should be undertaken. However, given the results favorable to the Veteran, further development under the VCAA or other law would not result in a more favorable outcome or be of assistance to this inquiry. Merits of the Claim The Veteran seeks service connection for tinnitus. Having carefully considered the claim in light of the record and the applicable law, the Board is of the opinion that the evidence is in equipoise, and therefore the criteria for entitlement to service connection for tinnitus have been met. Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury was incurred in service alone is not enough. Instead, there must be a disability resulting from that injury. 38 C.F.R. § 3.303. As detailed below, the Veteran has current disabilities of bilateral hearing loss and tinnitus. Generally, to prove service connection, the record must contain evidence concerning: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record. 38 U.S.C.A. § 7104(a). In addition, the Board must consider all information and lay medical evidence. 38 U.S.C.A. § 5107(b). In doing so, it is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence. See Owens v. Brown, 7 Vet. App. 429 (1995). In the evaluation of evidence, VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the Veteran. See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). It has also been observed that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence." Madden v. Brown, 125 F. 3d 1447, 1481 (Fed. Cir. 1997). In this case, the Board must evaluate the Veteran's statements, VA examinations and service treatment records. The Veteran was diagnosed with tinnitus at his June 2013 VA examination. The Veteran is also competent to testify as to this disability, as it is something of which he would have personal knowledge. Barr v. Nicholson, 21 Vet. App. 303 (2007); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). Therefore, the Veteran has a current disabilities of tinnitus. There is evidence of an in-service injury. In his July 2010 Notice of Disagreement, the Veteran described his duties as a System Organizational Maintenance Technician where he worked with C-130 planes in the hangar and on the flight lines. This statement is corroborated by his Military Occupational Specialty, as noted on his Form DD-214. He also attached an article describing his Military Occupational Specialty. The Veteran is competent to describe what he experienced in service. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Board finds the Veteran's statement regarding his service and duties credible, as they match his listed Military Occupational Specialty. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). The VA conceded noise exposure. Although the June 2010 rating decision did not concede in-service noise exposure, the July 2011 Statement of the Case conceded that the Veteran was exposed to at least some hazardous military noise. The Veteran's service treatment records also show a November 1981 treatment for a right ear 3-day earache, which was diagnosed as eustachitis. This condition was treated and did not recur. Therefore, there is competent and credible lay evidence of in-service noise exposure. The remaining question, therefore, is whether there is evidence of a nexus between the current disability and the in-service disease or injury. The Veteran was afforded a July 2011 VA examination, but the final results were considered invalid and therefore the examiner could not provide an opinion. The June 2013 VA examination is thorough and provides a rationale for its negative etiological conclusion. The examiner diagnosed weekly tinnitus that was a few minutes in duration. The examiner opined that it was not at least as likely as not related to service because there was no threshold shift in hearing ability, no evidence of acoustic trauma in service and that the Veteran did not time lock the onset of tinnitus to military service. The Veteran believes that his tinnitus is related to his service. As discussed above, the Veteran is competent to report his tinnitus. Although there is no record of post-service complaints or treatment before the April 2010 claim, the Board is within its province to weigh the Veteran's statements regarding the symptomatology he has experienced and to make a credibility determination as to whether that evidence supports a finding of in-service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). While the Veteran stated at the VA examination that he began experiencing tinnitus in the late 1980s, in his July 2011 VA examination and Form 646, he indicates that he has had it since service (which ended in 1984). The Board finds the Veteran's statement of continuity credible because although there is one piece of contradictory evidence, the difference in time is not precise and there is no other evidence to contradict the Veteran's statement. Therefore, the Board must award the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). As noted above, in certain cases, any element of service connection can be proven by lay evidence. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Here, the Veteran is competent to relate his in-service noise exposure to his current disability. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). As tinnitus is something which a lay person can observe, in this case, the Board finds the Veteran competent and credible to opine as to its etiology as well. Here, the Veteran's statements agree with his Military Occupational Specialty, he has a current disability of tinnitus, and because of his consistent corroborated statements he is credible to give a positive etiological opinion regarding his contemporaneous disability. When there is an approximate balance of evidence in favor and against the Veteran, VA is to give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). While there is evidence that tends to show that the Veteran's disabilities are not service-connected, such as the VA examination, there is also lay evidence that shows there is a nexus between his disabilities and his service. The Board is of the opinion that this point of equipoise has been reached in the instant case. Therefore, based on its review of the relevant evidence, and giving the benefit of the doubt to the Veteran, the Board finds that it is as likely as not the Veteran's tinnitus is service-connected. Id. Accordingly, service connection for tinnitus is granted. ORDER Service connection for tinnitus is granted. REMAND The Board finds it necessary to remand for inadequacy of the VA exam and opinion. Because the VA undertook to give the Veteran an exam in June 2013, it must ensure that the exam and opinion are adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In this case, the VA examination report that provided a negative opinion based mainly on the fact that the Veteran had normal hearing at the time of his separation from service. However, in Hensley v. Brown, the Court explained that the failure to meet VA's criteria for hearing loss at the time of a Veteran's separation from active service is not necessarily a bar to service connection for hearing loss disability. 5 Vet. App. 155, 159-60 (1993). In other words, a claimant "may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service." Id.; see 38 C.F.R. § 3.303(d). The VA examiner mentioned, but did not take into account the Veteran's credible statements regarding his in-service noise exposure and continuous hearing disability since service. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury but relied on the service medical records to provide a negative opinion). Upon re-examination, the examiner must take into account the Veteran's credible statements regarding in-service noise exposure, when the Veteran's bilateral hearing loss began and its continuity. Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). Similarly, as the July 2011 Statement of the Case conceded some level of hazardous in-service noise exposure, the examiner should also address other sources of the Veteran's hearing bilateral hearing loss not considered in the previous examinations. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA examination by a medical professional with sufficient expertise to determine the nature and etiology of any currently present bilateral hearing loss. Based on these results, the medical professional must render an opinion as to: Whether any diagnosed hearing loss disability is at least as likely as not (at least a 50 percent probability) causally or etiologically related to any incident of the Veteran's service, including and commenting on the Veteran's credible statements regarding his exposure to hazardous in-service noise, beginning of hearing loss and its continuity. The examiner must also discuss any other sources of hearing loss to which the Veteran may have been exposed in service and afterwards. A clear rationale for all opinions is required, including a discussion of the facts and medical principles involved. 2. Then, the RO/AMC shall then take such additional development action as it deems proper with respect to the claim. When the development has been completed, the case should again be reviewed on the basis of the additional evidence and readjudicated. If the benefits sought are not granted, the Veteran and his representative should be furnished Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant 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). ______________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs