Citation Nr: 1335806 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 08-16 711 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas 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 WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran served on active duty from May 1989 to August 1990, from February to May 2002, and from February 2003 to February 2005. This matter is on appeal from a November 2007 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Veteran testified before the undersigned in December 2008. A transcript of the hearing is of record. In August 2010, the Board remanded the claims for further development and they have since returned for further appellate consideration. The issue of entitlement to service connection for 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. FINDINGS OF FACT 1. The Veteran was exposed to acoustic trauma as a helicopter repairman in service. 2. Affording the Veteran the benefit of the doubt, the satisfactory lay and medical evidence of record demonstrates that his tinnitus is related to acoustic trauma during active service. CONCLUSION OF LAW Resolving the benefit of the doubt in the Veteran's favor, the criteria for the establishment of service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act (VCAA) The VCAA, codified, in part, at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. § 3.159 (2013). In this case, the Board finds that the RO has substantially satisfied the duties to notify and assist, as required by the VCAA. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with the service connection claim for tinnitus given the fully favorable nature of the Board's decision. Pertinent Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disorder on a direct basis, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease; such diseases are listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Tinnitus, however, 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. Id. Nonetheless, the Veteran's claim 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). 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). 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. Analysis The Veteran asserts that he has tinnitus related to exposure to loud noises during service, primarily while working on a flight line. Tinnitus is, by definition "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." See Dorland's Illustrated Medical Dictionary, 1914 (30th ed. 2003). VA examination reports dated in October 2007 and September 2010, along with a November 2010 addendum, essentially reflect that the Veteran currently has tinnitus. Additionally, the Veteran, as a layperson, is competent to report ringing of the ears because such symptomatology is readily apparent to those experiencing it. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("tinnitus is capable of lay observation"). Here, according to his DD Form 214, the Veteran's military occupational specialty (MOS) during his second and third periods of active service was a helicopter repairman. His statements regarding his noise exposure primarily on the flight line in service are consistent with the circumstances of his military service and are therefore deemed competent. Therefore, exposure to acoustic trauma during service is conceded. The Veteran's service treatment reports do not show any tinnitus findings, complaints, or treatment. On post-deployment health assessment reports dated in 2004 and 2005, the Veteran denied having had ringing of the ears. In October 2007, the Veteran was afforded a VA audiology examination in conjunction with this claim. He reported constant bilateral ringing of the ears. He attributed the ear problems to working around aircraft while stationed in Bosnia in 2004-2005. He stated that his ear problems began shortly after service discharge in 2005 and gradually worsened. The Veteran also reported some post-service civilian noise exposure but stated that he never worked for extended periods in noisy situations and had the benefit of hearing protection. After examining the Veteran and reviewing the claims file, the VA examiner determined that the Veteran's tinnitus is not related to his military service. In September 2010, the Veteran was afforded an additional VA audiology examination. He reiterated his contentions regarding being exposed to loud noises during service from helicopters, as well as gunfire. In a November 2010 addendum, the VA examiner determined that the Veteran's tinnitus was not caused by acoustic trauma during service. The Board however finds deficiencies in the VA examiners' rationale. In determining that the Veteran's tinnitus is not related to his military service, the October 2007 VA examiner reasoned that the Veteran's service treatment records do not document tinnitus. This opinion improperly relied solely on negative evidence as its bases. See Dalton v. Nicholson, 12 Vet. App. 23 (2007) (holding that the lack of documentary evidence during or after service cannot be the sole basis for an opinion against the claim). The Board therefore finds the October 2007 VA opinion inadequate. Additionally, the 2010 VA examiner's apparent sole reason for disassociating the Veteran's tinnitus with service was that he denied tinnitus on two post-deployment health assessments dated in October 2004 and January 2005. However, the Veteran has consistently reported that he did not first notice ringing of the ears until shortly after service in 2005. Thus, when he completed those assessments, his tinnitus symptoms may have been present but to a lesser extent and not yet readily discernible. Moreover, by declining to afford the proper weight to the Veteran's lay assertions, both examiners have rendered opinions that are based on an incomplete history of the case. In light of the above, the 2007 and 2010 VA opinions are not adequate for the Board to make an informed decision on the Veteran's claim. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (finding that an examination report is adequate where it describes the disability in sufficient detail so the Board can make a fully informed evaluation of the disability). Although an etiological relationship has not been demonstrated through the foregoing VA examination reports, nor otherwise shown through competent medical opinion evidence, the absence of a "valid medical opinion" is not an absolute bar to service connection, particularly where, as here, the lay evidence of record is sufficient to satisfy the third and final Hickson prong. Davidson, 581 F.3d at 1316. After a careful review of the record, and resolving all doubt in favor of the Veteran, the Board has determined, based upon the medical and satisfactory lay evidence set forth above, that the Veteran's current tinnitus was incurred during his active service. As noted above, the Veteran currently has tinnitus and was exposed to acoustic trauma during service. The Board finds his reports of having experienced tinnitus symptoms shortly after service discharge in 2005 to be competent and credible evidence of continuing tinnitus symptoms. Notably, the first evidence referencing the Veteran's tinnitus complaints is his claim of entitlement to service connection for tinnitus received in July 2007, which was just about two-and- a half years after his service separation. The Board also finds the competent lay evidence to be sufficient, given the particular facts of this case, to establish a direct link between his current tinnitus and active service. Resolving any doubt in his favor, the Veteran's account, in addition to the other aforementioned evidence of record, meets the nexus criteria outlined in 38 C.F.R. § 3.303(d) as it indicates that his tinnitus is causally related to the in-service acoustic trauma. Thus, resolving all reasonable doubt in favor of the Veteran, service connection for tinnitus is warranted. 38 C.F.R. § 3.102 (2013). See also 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for tinnitus is granted. REMAND The record contains an authorization to disclose information to the Social Security Administration (SSA) signed by the Veteran in connection with an application for SSA benefits. See Form SSA-827, received at the Board in November 2010. Neither the records related to the Veteran's application for such benefits nor the SSA decision on his claim is associated with the claims file. When VA has notice prior to the issuance of a final decision of the possible existence of certain records and their relevance, the Board must seek to obtain those records before proceeding with the appeal. Murincsak v. Derwinski, 2 Vet. App. 363, 373 (1992); see also Quartuccio v. Principi, 16 Vet. App. 183, 187-188 (2002); Baker v. West, 11 Vet. App. 163, 169 (1998). Accordingly, the case is REMANDED for the following action: 1. Request all records related to the Veteran's application for disability benefits from the SSA, including the SSA decision and award, if applicable. All requests and responses, positive and negative, should be associated with the claims file. 2. Then, readjudicate the service connection claim for bilateral hearing loss. If any benefit sought remains denied the Veteran and his representative should be issued a supplemental statement of the case (SSOC) that addresses actions taken since the issuance of the last SSOC and given the opportunity to respond. The case should then be returned to the Board, if in order. 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). ______________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs