Citation Nr: 1336292 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 11-32 073 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD U. Ifon, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force (Air Force) from July 1966 to July 1970. This appeal to the Board of Veterans' Appeals (Board) is from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the benefits sought on appeal. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 an aircraft mechanical engineer in service. 2. Affording the Veteran the benefit of the doubt, the evidence of record demonstrates that the Veteran's 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 service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 U.S.C.A. §§ 3.102, 3.303, (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to notify and assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist Veterans in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Here, the disposition of the claim being decided below is fully favorable to the Veteran. Therefore, the Board finds that all notification and development action necessary to render a fair decision on the matter has been accomplished. Pertinent Laws and Regulations In general, service connection may be granted for disability 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). Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2013). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (citing Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004)); 38 C.F.R. § 3.303(a) (2013). When a chronic disease is shown in-service, sufficient to permit a finding of service connection, any subsequent manifestation of the same chronic disease at any later date is service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2013). A chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, the Veteran's tinnitus is not diagnosed as a chronic condition listed under 38 C.F.R. § 3.309(a) (2013). In making all determinations, the Board must fully consider the lay assertions of record. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 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, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. Analysis The Veteran asserts that he has tinnitus due to exposure to loud noises during service, primarily while working on a flight line. Tinnitus, by definition, is "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 1930 (32nd ed. 2012). VA treatment records dated in June 2010 and August 2010, along with a September 2010 VA examination report, essentially reflect an assessment of subjective tinnitus. 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"). Thus, the Board finds the Veteran has a current disability which satisfies the first element for service connection. See Shedden, 381 F.3d at 1167. As for evidence of an injury in-service, the Veteran's service treatment records (STRs) show no complaints of, treatment for, or diagnosis of tinnitus. However, his DD-214 shows he had a military occupational specialty (MOS) as an aircraft mechanical engineer. The Veteran's statements of an in-service acoustic trauma are supported by his MOS. Accordingly, the Board finds that the Veteran's statements are credible and an in-service exposure to acoustic trauma is conceded. See 38 U.S.C.A. § 1154(a) (West 2002). Therefore, the second element for service connection is satisfied. Shedden, 381 F.3d at 1167. Given that the first two elements for service connection have been met, the determinative issue is whether a nexus element between the two exists. In a June 2010 VA treatment note, the Veteran, in pertinent part, reported a history of tinnitus and requested an audiology consultation. In a separate June 2010 statement, the Veteran asserted, in pertinent part, that he believed his tinnitus was related to his occupation as a jet engine mechanic in the Air Force. He also stated that he had a hearing examination conducted several years ago but could not access the records because the office was "retired and closed." In September 2010, the Veteran was afforded a VA audiology examination. He reportedly noticed tinnitus a year after discharge from service but did not recognize what the symptoms meant. He allegedly reported it to his family doctor in 1975, but no testing was done. He also stated his tinnitus was constant and became more bothersome about 10 years ago. The VA examiner was unable to comment on the etiology of the Veteran's tinnitus without resorting to mere speculation, and as such was unable to provide an opinion as to whether the Veteran's current tinnitus was the result of an acoustic trauma in service. The examiner reasoned the Veteran's medical history showed that the Veteran could have experienced tinnitus symptoms prior to service, but there was no way to resolve the issue of onset except by speculation. Medical evidence that is speculative, general or inconclusive in nature cannot be used to support a claim. Obert v. Brown, 5 Vet. App. 30, 33. Thus, this opinion is of no probative value. 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 nexus element. Davidson, 581 F.3d at 1316. Given the subjective nature of tinnitus (as explained above), the Board finds that the Veteran is competent and credible to report continuing tinnitus symptoms since service. 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 favor of the Veteran, the Board finds his reports of continuous tinnitus symptoms since service is causally related to his in-service acoustic trauma, and satisfies the nexus element. Shedden, 381 F.3d at 1167. The Board's grant of service connection in this case is not pursuant to the continuity of symptomatology provision of 38 C.F.R. § 3.303(b). Rather, it is based on the lay and medical evidence indicating that the Veteran's current tinnitus is related to his in-service acoustic trauma, and warrants entitlement to service connection under 38 C.F.R. § 3.303(a). 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) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for tinnitus is granted. REMAND The Veteran contends his hearing loss has been on-going since service. However, the Board finds that additional evidentiary development is necessary in order to address the merits of the service connection claim for bilateral hearing loss. It does not appear that hearing loss of the left ear was noted on the Veteran's entrance examination report. It must be determined whether the Veteran's left ear is presumed sound at entrance and must be rebutted by clear and unmistakable evidence that a left ear hearing loss existed prior to service, and clear and unmistakable evidence that it was not aggravated by service beyond its natural progression. See 38 U.S.C.A. § 1111 (West 2002); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). It is not apparent that the September 2010 VA examiner considered the Veteran's lay statements of on-going hearing loss symptoms since service. Furthermore, after the examiner converted the audiometric findings to meet the International Standards Organization (ISO)-American National Standards Institute (ANSI) standards, examiner reported more decibels than frequencies. The examiner's rationale is not supported by explanation for basis for the opinion and thus is inadequate. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For the reasons stated above, the December 2011 VA opinion is inadequate and must be returned for clarification. 38 C.F.R. § 3.159(c)(4) (2013). Inasmuch as the case is being remanded for an addendum, any outstanding VA treatment records, to include Mount Vernon Community Based Outpatient Clinic (CBOC) records, should be associated with the claims file. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: 1. Obtain all outstanding VA treatment records, to include Mount Vernon CBOC records, dated since October 2010. All records received should be associated with the claims file. 2. After all records have been received, return the claims file to the examiner who conducted the September 2010 VA audiology examination for the purpose of obtaining an addendum medical opinion. If the requested examiner is no longer available, another qualified VA examiner should be asked to review the claims file and provide an addendum opinion. The examiner is asked to respond to the following: a. Convert the audiometric findings from the Veteran's 1966 entrance examination to meet current ISO/ANSI standards, and restate the findings in the claims file. b. Next, indicate whether there is clear and unmistakable evidence that the Veteran had pre-existing hearing loss prior to entering military service. The examiner should reconcile the opinion with the report of normal hearing on the Veteran's 1966 entrance examination and provide explanation for this opinion. c. If there is clear and unmistakable evidence of pre-existing hearing loss at entrance to service, indicate whether there is also clear and unmistakable evidence that the pre-existing hearing loss was not aggravated beyond its natural progression during the Veteran's period of service. d. If there is no clear and unmistakable evidence of pre-existing hearing loss at entrance, clarify whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the current hearing loss had its clinical onset during his period of active military service, or is in anyway related to service to include whether the Veteran's service-connected tinnitus caused or aggravated hearing loss. The examiner must provide an explanation for any opinion based on the evidence and lay statements of record as well as any relevant medical literature. Comment on the significance, if any, of the Veteran's lay assertions of on-going hearing loss symptoms since service. In making the above determinations, the VA examiner must directly answer the above questions as written, and provide a complete explanation for all opinions and conclusions, to include a discussion of all lay and medical evidence of record. If the examiner cannot respond without resorting to speculation, the examiner should explain why a response would be speculative. 3. Readjudicate the issue on appeal. If the benefit sought remains denied, provide the Veteran and his representative 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 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. 2013). ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs