Citation Nr: 1337187 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 09-48 964 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The Veteran had active military service from November 1972 to July 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In August 2012, the appellant testified before the undersigned member of the Board during a hearing at the RO. Additional evidence was submitted by the Veteran following the hearing with a waiver of initial RO consideration of that evidence. The Board accepts the evidence for inclusion into the record on appeal. (The issue of 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.) FINDING OF FACT The Veteran has tinnitus that is attributable to his active military service. CONCLUSION OF LAW The Veteran has tinnitus that is the result of injury or disease incurred in active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or from aggravation of a pre-existing injury suffered or disease contracted in line of duty. See 38 C.F.R. § 1110; 38 C.F.R. § 3.303. The Veteran has reported that he experiences tinnitus and has attributed the disability to being subjected to small arms, tank, and artillery fire in service. The Veteran has reported that part of his daily job in the United States Army, as a small arms repairman, was to provide mechanical support for tanks on the firing range. The Veteran's service treatment records do not reflect complaints or a diagnosis associated with tinnitus. The medical opinion evidence of record is unfavorable to the Veteran's claim. In a report of January 2009 VA audiological examination, the Veteran was noted as reporting a periodic high pitched ringing in both ears that occurred once per week and lasted one minute. The examiner noted the Veteran's reported history of military noise exposure secondary to weapons' fire in service. No significant occupational noise exposure was reported and recreational noise exposure was identified as that associated with hunting. Following examination, hearing loss for VA disability purposes was identified in the left ear but not the right. See 38 C.F.R. § 3.385 (2013). The examiner commented that the ringing described by the Veteran was consistent with normal ear function and not considered "tinnitus" for rating purposes. The examiner also commented that due to the frequency of the tinnitus reported, it was not consistent with noise exposure or acoustic trauma. She indicated that the rare ringing in the Veteran's ears, as he described, was consistent with normal ear function. The examiner opined that the Veteran's tinnitus was not related to service. At his hearing before the undersigned, the Veteran testified that he had been assigned to the 27th Maintenance Battalion of the 1st Calvary Division. He reported spending time on the tank practice range providing mechanical support if any tank weapons system broke down. The Veteran emphasized that while out in the field on the practice ranges, there was no hearing protection offered and as a result he was told to place shell casings in his ears in an attempt to protect himself from the loud noise. Also, the Veteran commented that tanks continued to fire on the practice range even when soldiers were trying to fix the firing system of a nearby tank. According to the Veteran, the noise was tremendous. Additionally, the Veteran testified that he did report having problems with his ears (temporary hearing loss and ringing) to the medical staff, but he was not sure if his complaints were ever documented in his service treatment records. He also testified that since being exposed to weapons' fire in the service, he had had a constant noise in his head. He described the noise as manifested by a buzzing and/or snapping sound that was more noticeable when it was quiet. With regard to the January 2009 VA examination, the Veteran testified that he reported to the examiner that he had ringing in his ears all the time, and that he was told that such ringing was normal. Furthermore, the Veteran reported that the examiner did not appear to write down all the history he reported. As noted above, the only medical opinion evidence of record is unfavorable to the Veteran's claim. While the VA examiner reported tinnitus that was periodic and lasted less than a minute, the Veteran has testified that he did in fact tell the examiner that his tinnitus was constant. The Board finds the Veteran's testimony to be credible. Furthermore, as a layperson, the Veteran is competent to describe experiencing ringing in his ears. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, given the conflicting history of record concerning the frequency of tinnitus, the Board will accept that history most favorable to the Veteran. As such, the Veteran is considered to suffer from persistent tinnitus. Therefore, the VA examiner's conclusion that the Veteran's infrequent tinnitus would not be consistent with noise exposure or acoustic trauma is not persuasive. With that said, the record on appeal does not reflect treatment for tinnitus. However, when assessing a claim, the Board may not consider the absence of evidence as substantive negative evidence. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). Also, symptoms, not treatment, are the essence of any evidence of continuity of symptomatology, and a lay person is competent to testify in regard to the onset and continuity of symptomatology. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Furthermore, as noted above, the Veteran is competent to describe experiencing ringing in his ears. The Board accepts the Veteran's lay history as to noise exposure in service and the lack of use of adequate hearing protection at the time of the noise exposure. Also, the Board finds lay evidence of a continuity of symptoms of tinnitus (ringing in the ears) associated with the reported noise exposure. The Board has weighed the Veteran's statements and testimony with the other evidence of record. The evidence taken as a whole, at the very least, raises a reasonable doubt as to whether the Veteran has persistent tinnitus etiologically related to his period of service, notwithstanding the January 2009 VA opinion. Therefore, after consideration of the lay and medical evidence of record, and finding reasonable doubt in favor of the Veteran, service connection for tinnitus has been established. 38 U.S.C.A. § 5107, 38 C.F.R. § 3.102. ORDER Entitlement to service connection for tinnitus is granted. REMAND Besides his claim for service connection for tinnitus, as noted above, the Veteran has also claimed that he suffers from bilateral hearing loss and that the disability is also related to his period of military service. The Veteran's history of noise exposure in service is the same as was previously reported-that he was subjected to consistent loud noise without hearing protection and that he suffered acoustic trauma. In the report of January 2009 VA audiological examination, the examiner noted the Veteran's history, and discussed the Veteran's service audiological testing at service entrance and separation. In particular, with regard to audiometric shifts, the examiner reported that, ". . . there was not any significant threshold shifts noted." The Board's review of the service entrance and separation audiological examinations reflects a worsening threshold shift in the right ear of 10 (decibel) db at 500 Hertz (Hz) as well 5 db threshold shifts at 2000 Hz and 4000 Hz. In the left ear, there was a 5 db shift at 4000 Hz. As noted previously, audiometric testing at the time of the VA examination revealed hearing loss for VA disability purposes in the left ear but not the right. Following her interview of the Veteran and review of the claims folder, the examiner opined that, "Due to documentation of no threshold shift from time of enlistment to time of discharge, it is my opinion that hearing loss is not a result of time in service." As noted above, review of the service audiograms by the VA examiner as well as the Board indicates a worsening threshold shift in decibels in both ears, which the examiner described as "not any significant threshold shifts." However, in finding that the Veteran's hearing loss was not related to service, the examiner identified, "no threshold shift from time of enlistment to time of discharge." In the Board's view, the examiner appears to have misstated the evidence. In this regard, there is a clear difference between no significant threshold shift (which implies some shift) and no threshold shift. Whether the VA examiner did mistakenly believe that there was no threshold shift and whether this influenced her unfavorable opinion is unknown. Therefore, as there is a discrepancy in the examiner's reporting of the evidence and this may have influenced her opinion, the Board finds the January 2009 medical opinion to be inadequate. The Board also notes that since the January 2009 VA audiological examination, the Veteran has submitted additional evidence for review. Included with that evidence is a January 2010 audiogram from Hearite Corporation. The audiogram (in graph form) would appear to demonstrate hearing loss in the right ear for VA disability benefit purposes under 38 C.F.R. § 3.385. In light of the discussion above, a remand is necessary to obtain a new opinion as to whether the Veteran has bilateral hearing loss and whether such hearing loss is related to service. Also, in reviewing the Veteran's application for benefits (VA Form 21-526), received in August 2008, the Board notes that the Veteran identified receiving Social Security Administration (SSA) benefits. At the time of the application's filing, the Veteran was 53 years of age. His application for benefits also noted that he was unable to work due to his "back and knee problems." In February 2009, the Veteran was notified that his claim for nonservice-connected pension benefits was denied based on income. There is no indication, nor has it been reported, that the Veteran is receiving SSA disability benefits associated with hearing loss. Otherwise, the most recent VA treatment records are dated no later than August 2008. The RO should obtain any available VA treatment records since that time. It appears the Veteran's treatment is through the VA Eastern Colorado Health Care System and the VA Salt Lake City Health Care System. Accordingly, the case is REMANDED for the following action: 1. Obtain any available VA treatment records dated since August 2008. 2. After completion of the above, accord the Veteran an appropriate VA audiological examination to determine the nature, extent, and etiology of his claimed bilateral hearing loss. The claims file must be made available to the examiner for review in connection with the examination, and a notation that this review has taken place should be made in the examination report. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. The examiner is requested to obtain a detailed history of the Veteran's bilateral hearing loss and is also requested to review the claims folder. In particular, the examiner should consider the Veteran's service treatment records, the report of January 2009 VA audiological examination, a July 2012 statement from a soldier who served with the Veteran in the U.S. Army, the August 2012 hearing transcript, and a January 2010 audiogram from the Hearite Corporation. Following audiological testing, the examiner should offer his/her opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), that any diagnosed hearing loss had its clinical onset during service or is otherwise related to service, including the Veteran's conceded in-service noise exposure related to weapons' fire, in particular, military tanks. 3. After the above has been completed, undertake any additional evidentiary development deemed appropriate. Thereafter, re-adjudicate the claim for service connection for bilateral hearing loss on appeal. If any benefit sought is denied, the Veteran and his representative must be provided a supplemental statement of the case (SSOC) and given an opportunity to respond before the case is returned to the Board for appellate review. (CONTINUED ON NEXT PAGE) 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 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). ______________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs