Citation Nr: 1337062	
Decision Date: 11/14/13    Archive Date: 11/26/13

DOCKET NO.  12-35 643	)	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:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Sara Schinnerer, Counsel





INTRODUCTION

The Veteran served on active duty from August 1971 to August 1973.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (RO).

The issue of entitlement to service connection for bilateral hearing loss is remanded to the RO via the Appeals Management Center in Washington, DC.


FINDING OF FACT

The Veteran's current tinnitus is related to his active duty service.


CONCLUSION OF LAW

Tinnitus was incurred in active service.  38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue of entitlement to service connection for tinnitus.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326 (2013).  This is so because the Board is taking action favorable to the Veteran by granting such claim.  As such, this decision poses no risk of prejudice to the Veteran.  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49, 747 (1992). 

Service connection may be established for disability resulting from personal injury or disease incurred in the line of duty in the active military, naval, or air service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  

The Veteran contends that his current tinnitus began during active service.  Specifically, he asserts that he was exposed to acoustic trauma coincident to his duties as an ammunition specialist in the United States Army, as he was exposed to live weapons fire during such time.  He further reported that he experienced ringing in his ears since service.  In this regard, the Veteran's Form DD 214 shows a military occupational specialty of an ammunition storage and operations specialist, in the United States Army.  

Service treatment records include the report of an August 1971 induction examination, which is negative for complaints, treatment, or a diagnosis of tinnitus.  
The report of a July 1973 separation examination is negative for a diagnosis of tinnitus. 

Post-service records include the report of an April 2011 fee-based examination.  The Veteran reported that he was exposed to live weapons fire during active service.  He denied any post-service occupational or recreational noise exposure.  He stated that he experienced recurrent ringing in his ears.  The examiner diagnosed recurrent tinnitus.  The examiner noted that the tinnitus was "as likely as not" a symptom of associated hearing loss.  The examiner noted that the Veteran's hearing was normal upon induction and separation from service.  The examiner concluded 

that the Veteran's current tinnitus was "less likely than not" related to acoustic trauma in service.  

The Board finds the April 2011 fee-based examination inadequate for adjudication purposes.  In this regard, there is no indication that the examiner reviewed the claims file.  Specifically, the examiner failed to acknowledge the lay assertions of record regarding the Veteran's in-service noise exposure and ringing in his ears since that time.  Such statements are competent evidence regarding his in-service noise exposure and observable symptoms that he experienced ever since military service.  See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Charles v. Principi, 16 Vet. App. 370 (2002).  Accordingly, the April 2011 opinion is of no probative value.  

In sum, the Board finds that the history the Veteran provided about noise exposure in service, where he was exposed to noise from serving as an ammunition specialist is consistent, competent, and credible.  See Id.  As above, the Veteran's service personnel records show his military occupational specialty as an ammunition storage and operations specialist, supporting his claimed exposure to noise.  Further, tinnitus is subjective and the kind of condition which lay evidence is competent to describe, to include the time of onset.  See Charles, 16 Vet. App. at 374.  In addition, the Veteran has presented written statements regarding his in-service incurrence of noise exposure and tinnitus, and there is evidence of recurrent ringing in the Veteran's ears, as shown during the aforementioned fee-based examination.  

Affording the Veteran the benefit of the doubt, service connection for tinnitus is warranted.  See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for tinnitus is granted.



REMAND

The Veteran contends that his current bilateral hearing loss is a result of exposure to acoustic trauma coincident to his duties as an ammunition specialist during active service, where he was exposed to live weapons fire. 

Another opinion is needed to determine whether the Veteran's current bilateral hearing loss disorder began in service or is etiologically related to service, as the April 2011 fee-based opinion is not adequate for adjudicative purposes.  Specifically, such opinion was based in significant part on a determination that the Veteran had normal hearing at induction and separation.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Hensley v. Brown, 5 Vet. App. at 159.  The examiner failed to comment on the fact that, while the Veteran's hearing was normal as defined by VA at the time of discharge, it had worsened since entry into service, showing a significant threshold shift at 1000 through 3000 Hertz, of the right ear, and at 4000 Hertz, bilaterally.    

The requirements for service connection for hearing loss need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted.   38 C.F.R. § 3.385.  The regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service.  Hensley, 5 Vet. App. 155 (1993).  Accordingly, another medical opinion is necessary.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

Accordingly, the case is remanded for the following actions:

1.  The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim for entitlement to a service connection for bilateral hearing loss.  Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources.  All attempts to secure this evidence must be documented in the claims file by the RO.  When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received.  If the RO is unable to secure any of the identified records, the RO must notify the Veteran and his representative and (a) identify the information the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain that information; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that the Veteran is ultimately responsible for providing information.  The Veteran and his representative must then be given an opportunity to respond.

2.  The claims file and all electronic records must be made available to the April 2011 fee-based examiner, and the examiner must specify in the examination report that these records have been reviewed.  If the examiner who conducted the April 2011 examination is unavailable, an appropriate VA examiner must be directed to provide the supplemental finding to the April 2011 fee-based examination.  If the VA examiner determines another examination is necessary to provide the finding, an examination must be scheduled.  

Following review of the service and post-service medical records, the Veteran's military occupational specialty, and with consideration of the Veteran's statements and his history of inservice noise exposure, the examiner must state whether any degree of the Veteran's current hearing loss is related to his military service, to include exposure to acoustic trauma.  In providing the opinion, the examiner must comment on the Veteran's August 1971 induction physical examination report and his July 1973 separation physical examination report.  Specifically, the examiner must address the Veteran's threshold shift at 1000 through 3000 Hertz, of the right ear, and at 4000 Hertz, bilaterally, which is demonstrated on his separation examination report.  A complete rationale for all opinions must be provided.  The RO must remind the examiner that, although hearing loss may not be shown in service or at separation from service, service connection can still be established if the medical evidence shows that it is actually due to incidents during service.  If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation.  Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner.  The report must be typed. 

3.  The medical report must be reviewed to ensure that it is in complete compliance with the directives of this remand.  If the report is deficient in any manner, the RO must implement corrective procedures. 

4.  After completing the above actions, the RO must readjudicate the Veteran's claim, taking into consideration any and all evidence that has been added to the record since its last adjudicative action.  If the benefit on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case and given an appropriate opportunity to respond.  Thereafter, the case must be returned to the Board for appellate review. 

No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO.  Kutscherousky v. West, 12 Vet. App. 369 (1999).



______________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs