Citation Nr: 1337816	
Decision Date: 11/19/13    Archive Date: 12/06/13

DOCKET NO.  13-03 238	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1. Entitlement to service connection for bilateral hearing loss disability.

2. Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

C. Samuelson, Associate Counsel





INTRODUCTION

The Veteran had active service from November 1970 until May 1972.

This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim.

The issue of hearing loss disability 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

Tinnitus had its onset in service.


CONCLUSION OF LAW

Tinnitus was incurred in service.  38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303(a) (2013).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

In this decision, the Board grants service connection for tinnitus, which represents a complete grant of the benefit sought on appeal.  As such, no discussion of VA's duty to notify and assist is necessary.

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; 38 C.F.R. § 3.303.  

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  

Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.  38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and law and medical evidence of record in a case before the Secretary with respect to benefits under the laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claimant.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

The Veteran states that he has tinnitus as a result of hazardous noise exposure sustained during active service.  Specifically, he reports hearing "crickets" since being exposed to mortars, tanks, grenades, and machine gun trainings while in service.  The Veteran's DD Form 214 shows the Veteran's military occupational specialty (MOS) while in active service was listed as light weapons infantryman.  Therefore, the Board concedes acoustic trauma in service.  

A review of the service treatment records show no documentation of complaints, diagnosis, or treatment for tinnitus.  

In a VA treatment record dated July 2001, the Veteran reported a "sizzling sound" in his right ear with sudden hearing loss then gradually comes back.  He also reported constant bilateral tinnitus.

The Board notes that the Veteran is competent to report when he first experienced tinnitus and that the symptoms have continued since service.  Lay testimony is competent to establish the presence of observable symptomatology.  Layno v. Brown, 8 Vet. App. 398 (1995).  Further, the Board finds the Veteran to be credible.

In December 2011, the Veteran was afforded a VA examination.  At that time, the Veteran reported recurrent tinnitus.  The Veteran reported hearing "crickets" since being exposed to mortars, tanks, grenades, and machine gun trainings while in service.  The Veteran reported tinnitus being present typically when it is quiet and tinnitus to fluctuate in loudness.  The Veteran also reported being "slapped" in one of both ears during basic training during hand to hand combat lessons.  The examiner opined that the Veteran's tinnitus was less likely than not caused by or a result of military noise exposure.  The examiner noted there was no evidence of combat nor was there any evidence of tinnitus within the Veteran's claims file.  

The Board is free to assess medical evidence and is not obligated to accept a physician's opinion.  In this case, the Board declines to accept the VA examiner's opinion regarding the etiology of the Veteran's tinnitus as the VA examiner does not sufficiently support her conclusion.  In this regard, the examiner did not address the Veteran's lay statements and his military noise exposure during active service.  The VA examiner also failed to provide any other causal explanation for the Veteran's tinnitus.

The Board notes that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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.  In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

In this case, the Veteran is competent to identify tinnitus and his statements of such have been found credible.  The Board has conceded the Veteran's hazardous military noise exposure during service.  The Veteran has competently reported recurrent tinnitus and hearing "crickets" since being exposed to mortars, tanks, grenades, and machine gun training while in service and this statement has been found to be credible by the Board.  While there is a medical opinion of record indicating that it is less likely as not that the Veteran's tinnitus was caused by acoustic trauma during military service, the opinion does not consider all pertinent facts and does not provide a complete, thorough, and detailed rationale supporting the conclusions made.

Accordingly, the Board finds that the evidence for and against the claims of entitlement to service connection for tinnitus is at least in equipoise.  Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for tinnitus is warranted.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for tinnitus is granted.


REMAND

The Veteran maintains that he has hearing loss as a result of hazardous noise exposure sustained during active service.  The Board concedes acoustic trauma in service.

The Board observes that the Veteran was provided an audiological examination in December 2011.  The examiner diagnosed bilateral sensorineural hearing loss.  However, the examiner opined that the Veteran's hearing loss is not at least as likely as not caused by or a result of an event in military service.  The VA examiner noted that the Veteran's exit examination done in 1972 documents normal hearing at military separation.  The examiner also noted the Veteran was an infantryman in the Army but denied being exposed to combat situations and there was no evidence of combat within the Veteran's claims file.  She conceded that the Veteran's MOS likely exposed him to excessive noise, but further stated the SMRs do not indicate that this had a negative impact on hearing.  She stated that the claims file documents that military noise exposure did not cause hearing loss during military service.  The examiner further opined that it is likely that post-military noise exposure (i.e. working some construction) and aging effects are playing a role in the Veteran's current audiological configuration.

The examiner's rationale is based largely on the Veteran's service treatment records documenting normal hearing in service.  In Hensley v. Brown, 5 Vet. App. 155 (1993), the Court held that, even though disabling hearing loss may not have been demonstrated at the military separation, a Veteran may still establish service connection for a current hearing loss disability by showing he now satisfies the threshold minimum requirements of § 3.385 (2013) and by submitting evidence that his current disability is related to his active military service.  Additionally, the Veteran's separation examination documenting normal hearing is based, at least in part, on the "normal" whisper test at the separation examination in 1972.  The Board notes that "whispered tests" are inherently unreliable.

Furthermore, the RO, in its request for a medical opinion, noted that acoustic trauma during service was conceded.  Based on the examiner's opinion, it does not appear that this finding was afforded appropriate consideration.

Under the circumstances, the Board finds that the December 2011 examination is not adequate for rating purposes.  VA has a duty to ensure that any examination or VA opinion it provides is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Therefore, an addendum opinion is necessary in order to render a fully informed decision.  38 U.S.C.A. § 5103A(d); Barr.  In rendering such opinion, the examiner should specifically consider the Veteran's lay statements regarding service incurrence, including his documented noise exposure and reports of recurrent symptoms since service.  

Accordingly, this matter is REMANDED for the following action:

1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed his in-service and post-service acoustic trauma and problems hearing.  The Veteran should be provided an appropriate amount of time to submit this lay evidence. 

2. After associating any pertinent, outstanding records with the claims folder, afford the Veteran an appropriate VA examination.  The claims folder should be made available and reviewed by the examiner and all necessary tests, including an audiological evaluation, should be conducted.  

The examiner must opine as to whether it is at least as likely as not that the Veteran's bilateral hearing loss was related to or had its onset in service, to specifically include his in-service acoustic trauma.

In offering this opinion, the examiner must acknowledge and discuss the Veteran's report as to the onset of the disability.

All opinions expressed should be accompanied by supporting rationale in a legible report.  If the audiologist cannot provide an opinion without resorting to mere speculation, such should be stated along with a supporting rationale. 

3. Then readjudicate the appeal.  Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order.  The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed.  The purpose of this remand is to ensure compliance with due process considerations.

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).




______________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs