Citation Nr: 1335087	
Decision Date: 11/01/13    Archive Date: 11/13/13

DOCKET NO.  12-11 703	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1. Entitlement to service connection for bilateral hearing loss.

2. Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:  Marine Corp League 


ATTORNEY FOR THE BOARD

W. Doernberg, Associate Counsel



INTRODUCTION

The Veteran had active service from December 1975 to December 1978.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

The issue of 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

It is reasonably shown that the Veteran's tinnitus had onset in service.


CONCLUSION OF LAW

The criteria for entitlement to service connection for tinnitus have been met.  38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.159, 3.326(a) (2013). 

As the Board is granting the claim for service connection for tinnitus, the claim is substantiated, and there are no further VCAA duties.  Wensch v. Principi, 15 Vet. App. 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim").

Service Connection for Tinnitus

Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  In order to establish service connection, the following must be shown: (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).  Service connection may 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).

The Veteran asserts that she currently has bilateral recurrent tinnitus that began in service.  The evidence of record, including a June 2009 private examination report and January 2010 VA examination report reflects the Veteran's contentions that she has ringing in her ears.  The Veteran is competent to report occurrences of tinnitus because its symptoms are capable of lay observation.  Charles v. Principi, 16 Vet. App. 370, 374 (2002).  The Board also finds that the Veteran's statements are credible as they are consistent throughout the record and were not discounted by either the VA examiner or the private examiner.  The current disability element has been met.

The evidence also establishes that the Veteran was exposed to noise during service.  The Veteran contends that she was exposed to noise in a communications center from teletype, communications equipment, and radio noise.  She also describes exposure to noise from aircraft and ground support repair equipment.  As the Veteran's DD-214 indicates that she was a public affairs officer, her contentions regarding in-service acoustic trauma are consistent with the circumstances of her service.  38 U.S.C.A. § 1154(a) (West 2002).  The Board finds that the Veteran's competent accounts are credible and consistent.  In-service injury has therefore also been established.

The Veteran was provided with a VA audiological examination in January 2010.  The examiner initially opined that the Veteran's tinnitus is as likely as not related to service.  However, in a supplemental report after reviewing the Veteran's service treatment records, the examiner found that the Veteran's tinnitus is less likely than not caused by noise exposure in service.  The record also contains opinions from a private provider from June 2009 and November 2010.  The private provider found that it is more likely than not both that the Veteran's tinnitus is related to her noise exposure in service.

The Board gives little weight to the VA examination because the examiner did not explain the reason for changing her opinion concerning the cause of the Veteran's tinnitus.  A mere conclusion without an underlying rationale is of no probative value.  Miller v. West, 11 Vet. App. 345 (1998).  The Board also gives little weight to the private examiner who did not express a clear rationale for his opinion.

The Board instead relies on the competent and credible accounts of the Veteran who states that she began to experience tinnitus in service.  38 C.F.R. § 3.303(d).  In her January 2011 notice of disagreement, the Veteran states that tinnitus was common in her position.  She considered it to be "simply accepted as part of the 'job description.'"  The Veteran is competent to report that her tinnitus had onset in service and that her symptoms continue.  Charles, 16 Vet. App. at 374 (2002).  Given the nature of tinnitus, the Veteran is the only one who is competent to testify as to when she began to perceive tinnitus.  The Board also finds these statements are credible because the Veteran has consistently maintained that her tinnitus began in active service.  This consistency adds credibility to the Veteran's statements.  Based upon the Veteran's competent and credible statement, it is clear that her tinnitus had onset during service.

As the weight of the evidence reflects that the Veteran experienced noise trauma and tinnitus in service, the Veteran has current tinnitus, and there is a relationship between her tinnitus and her service, the criteria for service connection for tinnitus have been met.  38 U.S.C.A. § 1110, 5107(b); 38 C.F.R. § 3.303.  


ORDER

Service connection for tinnitus is granted.


REMAND

The Veteran seeks service connection for bilateral hearing loss.  After having carefully considered the matter, and for reasons expressed immediately below, the Board finds that the Veteran's appeal must be remanded to ensure that she is accorded full compliance with the statutory duty to assist.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The Veteran was afforded a VA contracted audiology examination to determine the etiology of her hearing loss and tinnitus in January 2010.  In her addendum opinion, the examiner found that the Veteran's hearing loss is less likely than not caused by or a result of service because hearing loss was present prior to service and was not worsened by service as measured by discharge audiograms.  The Board finds that the examiner's opinion is inadequate in this case.  The examiner considered that the Veteran's hearing loss pre-existed service and therefore expressed the opinion that the hearing loss had no nexus to service.  However, the examiner did not address whether the Veteran's pre-existing left ear hearing loss was aggravated by service, but instead only addressed whether bilateral hearing loss was caused by service.  This portion of the examiner's opinion is therefore inadequate.  The examiner also did not address the measured improvement upon discharge in the right ear when compared with the Veteran's entrance examination.

Under these circumstances, the Board believes that a new nexus opinion must be obtained.

The Board also finds that a June 2009 auditory examination contains a graph that the Board cannot interpret.  It is therefore necessary that an examiner provide an appropriate interpretation of this graph.


Accordingly, the case is REMANDED for the following action:

1. The RO/AMC should refer the Veteran's claims folder to the January 2010 VA contracted audiology examiner or, if she is unavailable, to another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of any current hearing loss that may be present.  The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements.  The examination report must state whether this review was accomplished.  If an additional examination is deemed necessary to provide the requested opinion, such an examination should be scheduled.

The examiner should provide another opinion on whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran's right ear hearing loss is related to in-service noise exposure.

The examiner should also provide an opinion on whether there is clear and unmistakable evidence that the Veteran's pre-existing left ear hearing loss was not aggravated beyond the normal progression of the disease by any event in service.

In so doing, the examiner must also discuss the likelihood that the Veteran's right ear hearing loss is due to in-service noise exposure on a delayed or latent onset theory of causation.

The examiner should address the improvement in puretone thresholds from entrance to separation as well as the November 2010 private opinion concerning this improvement.  The examiner should state what effect, if any, this improvement has on his or her opinion.

The examiner should provide an appropriate interpretation of the graph contained in the June 2009 auditory examination.

The examiner must provide reasons for each opinion.  The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions.  If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so, aside from lack of contemporaneous medical treatment or documentation.

If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered.

2. Review the examination report to ensure that it complies with these remand instructions and, if not, return it to the examiner for correction.

3. Readjudicate the issue on appeal.  If the benefit sought remains denied, provide the Veteran a supplemental statement of the case and an appropriate period of time for response.

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 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. 2013).




______________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs