Citation Nr: 1334876	
Decision Date: 10/31/13    Archive Date: 11/06/13

DOCKET NO.  13-06 685	)	DATE
	)
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Received from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

M. Espinoza, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1967 to February 1973.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

The issue of entitlement to service connection for bilateral hearing loss is being remanded 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's tinnitus is as likely as not attributable to his active military service


CONCLUSION OF LAW

The criteria for service connection for tinnitus are met.  38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision, the Board grants entitlement to service connection for tinnitus, which constitutes a complete grant of the Veteran's claim with respect to this issue.  Therefore, no discussion of VA's duty to notify or assist is necessary.

Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013).  To establish service connection on a direct incurrence basis, the Veteran 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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  In service connection claims consideration must be given to all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. § 3.303(a).

In this case, the Veteran satisfies the existence of the present disability standard for his tinnitus claim.  Here, the Veteran reported that he has experienced ringing in the ears.  In April 2011, the Veteran underwent a VA audiological examination in connection with the claim and was diagnosed with tinnitus, even though the examiner stated this is not clinically significant tinnitus because it occurs monthly and lasts for seconds.  Additionally, for VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone.  See Charles v. Principi, 16 Vet. App. 370 (2002).  

The evidence of record supports a finding that the Veteran sustained exposure to loud noises while in service.  Specifically, the Veteran's Form DD-214 lists his military occupation as a Fire Control Technician and was awarded the Vietnam Service Medal.  Veteran described that he was exposed to noise in service from artillery, gunfire and engine noise.  He reported that the majority of his military noise exposure was from working around cooling systems with loud engine noise onboard ships.  The Veteran's February 2013 VA Form 9 stated that the Veteran was exposed to noise from shooting 5 inch and 8 inch guns off a heavy cruiser.  As the Veteran's service records are supportive of his competent and credible contentions regarding exposure to loud noises, the element of the incurrence of an in-service injury is met for tinnitus.

The Veteran has consistently reported that tinnitus first began during service or shortly after service.  Tinnitus is the type of condition that a lay person can identify.  Charles, 16 Vet. App. at 374.  The Veteran is credible with respect to his assertions of experiencing tinnitus ever since service because his statements regarding the onset of the tinnitus are generally consistent.  The Veteran filed his claim for tinnitus in February 2011 but did not specify when the tinnitus began.  At the April 2011 VA audiological examination, the Veteran stated that the tinnitus began years before.  An October 2011 private medical letter stated the Veteran began experiencing intermittent bilateral tinnitus shortly following active duty.  On the March 2013 Form 646, the Veteran's representative stated that his condition manifested while on active duty.  Thus, these are generally consistent statements that show the Veteran maintains the tinnitus began during service or shortly after service.  

The Board finds the Veteran's statements as to the onset of his tinnitus to be credible and his statements are accorded significant evidentiary weight.  Moreover, the VA examiner's explanation as to why the Veteran's tinnitus is not service connected is less persuasive.  The April 2011 VA examiner stated that the Veteran's tinnitus is less likely than not caused by or a result of military noise exposure.  The April 2011 VA examiner's rationale for her opinion is that the Veteran had normal hearing at discharge and a history of civilian noise exposure.  However, the Veteran has consistently stated that the tinnitus began during service or shortly after service, which the April 2011 VA examiner does not account for in her opinion.  

Additionally, the Veteran disputes the April 2011 VA examiner's finding of civilian noise exposure.  The April 2011 VA examination report stated that the Veteran worked 17 years as a systems analyst around factory machine noise and hunted for about 5 years, and did not use hearing protection in either instance.  On the February 2013 VA Form 9, the Veteran argued his civilian jobs were in information technology and management.  He further stated that he worked in a front office or in a corporate environment for about 12 years, without any noise exposure.  He also stated that during the time he had to walk through the factory to his office, a sound proof room, he arrived and departed during the shift change when most of the machines were not running.  Finally, he stated that the machines complied with Occupational Safety and Health Administration standards for noise exposure and the few machines that were running, were at the far ends of his building and not near the office area.  Thus, the medical opinion is of little evidentiary value because the probative value of a medical opinion comes from the factually accurate, fully articulated, and sound reasoning for the conclusion.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  Therefore, the Veteran's credible statements as to the onset of his tinnitus and the lack of civilian noise exposure are sufficient to outweigh the opinion of the examiner in the April 2011 VA examination and establish a nexus between the Veteran's tinnitus and noise exposure during service.

A Veteran's lay statements may be sufficient evidence in any claim for service connection.  38 C.F.R. § 3.303(a) ("Each disabling condition shown by a Veteran's service records, or for which he seeks a service connection [,] must be considered on the basis of . . . all pertinent medical and lay evidence"; see 38 U.S.C.A. § 1154(a) (requiring VA to include in its service connection regulations that due consideration be given to "all pertinent medical and lay evidence").

The Board finds that the Veteran is both competent and credible to report tinnitus during service and since service.  At the least, this evidence raises reasonable doubt as to whether the Veteran's tinnitus is etiologically related to noise exposure in service.  When resolving the benefit of the doubt in the Veteran's favor, the Board finds that tinnitus is in fact related to service.  See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013).  Thus, the Board concludes that service connection for tinnitus is warranted.  


ORDER

Entitlement to service connection for tinnitus is granted.


REMAND

The Board finds it necessary to remand the issues of entitlement to service connection for bilateral hearing loss, to the agency of original jurisdiction for additional development and consideration.  

The Veteran contends that he was exposed to loud noise during service, as described above, and that his bilateral hearing loss is the result of that noise exposure.  

The Board concludes that the April 2011 VA examination is not adequate for the purpose of adjudicating the Veteran's claim of entitlement to service connection for bilateral hearing loss.  The April 2011 VA examination audiometric testing revealed puretone thresholds were reflective of hearing impairment for VA purposes under the requirements of 38 C.F.R. § 3.385 (2013) for the right ear but not for the left ear.  The VA examiner noted that in review of the Veteran's claims file, the Veteran's hearing was normal at discharge and the examiner noted a history of civilian noise exposure.  Therefore, the VA examiner reasoned that the Veteran's hearing loss was less likely than not caused by or a result of military noise exposure.  However, the United States Court of Appeals for Veterans Claims (Court) has held that the lack of in-service evidence of hearing loss is not fatal to a claim for service connection.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Evidence of a current hearing loss disability and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  Additionally, the Veteran, as described above, has credibly stated that he did not experience 17 years factory noise exposure as a systems analyst, as described in the April 2011 VA examination report.  Thus, the medical opinion is of little evidentiary value because the probative value of a medical opinion comes from the factually accurate, fully articulated, and sound reasoning for the conclusion.  Nieves-Rodriguez, 22 Vet. App. at 304.  

As such, given the deficiencies in the April 2011 VA examination, another VA medical opinion is required to adequately decide the merits of these claims.  38 C.F.R. § 3.159 (2013); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Another VA examination is also necessary because the evidence indicates that the Veteran's hearing loss has worsened since the last VA examination, and the last VA examination is too remote to constitute a contemporaneous examination, a new examination is required.  See 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2013).  See also Weggenmann v. Brown, 5 Vet. App. 281 (1993).  Here, a October 2011 private medical letter indicates the Veteran has mild to moderate sensorineural hearing loss in the left ear, and while it is unclear if this constitutes hearing loss for VA purposes under 38 C.F.R. § 3.385, it does indicate the Veteran's hearing loss increased in severity, as this was not diagnosed at the VA examination.  Thus, a new examination is required.

Finally, as described above, the Veteran has sought private audiological treatment.  Specifically, an October 2011 private medical letter references an evaluation for hearing loss, which occurred the same date of the letter; however, the physical examination referenced within the letter is not part of the evidence of record.  Thus, the necessary authorization should be obtained from the Veteran and any additional records, from the Austin Ear Clinic, should be attempted to be obtained and associated with the claims folder.  38 C.F.R. § 3.159(c)(1).

Accordingly, the case is REMANDED for the following actions:

1.  Obtain the necessary authorization from the Veteran and then attempt to obtain additional audiological records, in particular the October 2011 examination report, from the Austin Ear Clinic, and associate them with the claims folder.  All attempts to obtain these records must be documented in the claims file.  The RO must make two attempts to obtain these records unless the first attempt demonstrates that further attempts would be futile.  If no records are obtained, the RO must (1) inform the Veteran of the records that were not obtained (2) tell the Veteran what steps were taken to obtain them, and (3) tell the Veteran that the claim will be adjudicated without the records but that if he later submits them, the claim may be reconsidered.  See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012 § 505(a), Pub L. 112-154, 126 Stat. 1165 (August 6, 2012) (codified as amended at 38 U.S.C.A. § 5103A(b)(2)(B) (West 2002 & Supp. 2013)).

2.  Thereafter, schedule the Veteran for a VA examination in order to ascertain the nature and severity of any bilateral hearing loss.  The entire claims file should be made available for review, to include a complete copy of this remand, and the examination report should reflect that such review occurred.  

The examiner should consider the effect of bilateral hearing loss on occupational and daily functioning of the Veteran.  Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007).

Upon examination of the Veteran and review of the record, the examiner must respond to the following:  If bilateral hearing loss is diagnosed, provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the hearing loss is related to active service or any incident of service.

The term "at least as likely as not" does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of a certain conclusion as it is to find against it. 

The examiner must provide a complete rationale for any opinion expressed, based on the examiners clinical experience, medical expertise, and established medical principles.  The examiner is advised that the lack of documentation of hearing loss in service treatment records or a normal separation examination is not, by itself, a sufficient rationale for a negative opinion. 

3.  The RO must notify the Veteran that it is his responsibility to report for the examinations and to cooperate in the development of the claims.  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.  Finally, after undertaking any other development deemed appropriate, readjudicate the issue on appeal.  If the benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review.

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. 2013).



______________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs