Citation Nr: 1338048 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 12-17 093 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs ATTORNEY FOR THE BOARD Ashley Martin, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1969 to February 1973. These matters come before the Board of Veterans' Appeals (BVA or Board) from January 2011(bilateral hearing loss) and March 2011 (tinnitus) rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in Denver, Colorado. The Veteran initially requested a video conference hearing before a Veterans Law Judge, but that request was withdrawn in a September 2012 statement. 38 C.F.R. § 20.704 (2013). The Board has reviewed both the paper and electronic (Virtual VA and Veterans Benefits Management System (VBMS)) records in relation to this appeal. The issue of 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 is diagnosed with tinnitus that is etiologically related to his period of active service. CONCLUSION OF LAW The Veteran's tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 1111, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA is required to meet the notice and duty to assist provisions of 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Service Connection Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). Service connection may also be established by chronicity and continuity of symptomatology. See 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service or in the applicable presumptive period is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in-service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The provisions of § 3.303(b) only apply to the list of chronic disabilities identified under § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In making all determinations, the Board must fully consider the lay assertions of record. 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. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Board is also charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), Wensch v. Principi, 15 Vet. App. 362, 367 (2001). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). The Veteran seeks service connection for tinnitus. He attributes his current tinnitus to acoustic trauma experienced during active service while working as a weapons mechanic. Specifically, the Veteran contends that he was exposed to loud noises through jet engines, support equipment on the flight line, heavy equipment, and weapons qualification. The Veteran's DD 214 confirms service as a weapons mechanic. Therefore, the Board concedes that the Veteran experienced in-service acoustic trauma. 38 U.S.C.A. § 1154(a). The Veteran's service treatment records do not reveal complaints or a diagnosis of tinnitus. Post-service treatment records prior to 2010 also do not show complaints of tinnitus. In December 2010, the Veteran was afforded a VA audiological evaluation. Although, the Veteran was diagnosed with bilateral hearing loss, the VA examiner noted that complaints of tinnitus were not reported at the time of the examination. In March 2011, the Veteran underwent another VA audiological evaluation. During this examination, the Veteran reported constant tinnitus and indicated that he could not recall when his tinnitus began. The examiner noted that an opinion could not be provided "without resort to mere speculation. Rationale for opinion given: the Veteran has no idea of a date of onset. The tinnitus cannot be related to military service. The Veteran's occupation for 30 years involved noise." In his May 2011 notice of disagreement, the Veteran said his post-service employment was in a leadership position which did not require that he be on the production floor daily. He also stated that he did not report symptoms of tinnitus during the December 2010 VA examination because he "[did not] know what tinnitus was." He also asserted that he had had ringing in his ears "ever since he was on active duty." An addendum medical opinion was obtained from the same examiner in June 2012. After reviewing the records and specifically considering the Veteran's statement that tinnitus began in service, the examiner concluded that an opinion regarding the etiology of the Veteran's tinnitus could not be provided without resorting to mere speculation because the Veteran denied tinnitus in 2010 and could not give a date of onset in 2011. Affording the Veteran the benefit of the doubt, the Board finds that service connection is warranted for tinnitus. A veteran is competent to report what he or she experiences. For VA purposes, tinnitus is the type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). Thus, if a veteran reports ringing in his or her ears, then a diagnosis of tinnitus is generally provided without further examination. The etiology of the disorder is similarly reliant upon lay statements. The date that a veteran reports that the tinnitus symptoms began is generally accepted as the date that the disorder began, without further examination, unless there is something in the record that would call the veteran's statement into question. The Veteran has asserted that he has suffered from ringing in his ears since service. The Board acknowledges the inconsistencies in the Veteran's reports as to both the existence and onset of tinnitus during the December 2010 and March 2011 VA examinations. However, the Veteran said he did not report symptoms of tinnitus when initially asked because he did not know what tinnitus was and argued that he has had it since service. The Board finds the Veteran's statement credible. The VA examiner's inability to provide an etiology opinion in this case is an assessment arrived at after consideration of all procurable information. The examiner clearly identified the reason an opinion could not reached; that is, the Veteran's inconsistent statements. Jones v. Shinseki, 23 Vet. App. 382 (2010). Nevertheless, the Board has weighed the probative evidence of record including the Veteran's competent and credible assertions concerning continuing tinnitus symptomatology versus the speculative VA medical opinions, and finds that the evidence is at least in equipoise. The benefit of the doubt rule is thus for application. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Resolving reasonable doubt in the Veteran's favor, the evidence supports the grant of service connection for tinnitus. See 38 U.S.C.A § 5107. ORDER Service connection for tinnitus is granted. REMAND The Veteran seeks service connection for bilateral hearing loss which he attributes to noise exposure experienced during active service while working as a weapons mechanic. The Veteran was afforded a VA audiological examination and an addendum medical opinion was obtained in December 2010. The Veteran was diagnosed with bilateral hearing loss. The examiner opined that the Veteran's hearing loss was less likely than not related to his service. In providing this negative medical opinion, the examiner appeared to rely largely on the absence of hearing loss at time of separation. Even if disabling hearing loss is not demonstrated at separation, a veteran may establish service connection for a current hearing disability by submitting evidence that a current disability is causally related to service. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Furthermore, the lack of any evidence showing the Veteran had hearing loss during service is not fatal to his claim for service connection. The laws and regulations do not strictly require in-service complaint of, or treatment for, hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Thus, an opinion is required to determine whether the Veteran's current hearing loss is related to in-service noise exposure. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following actions: 1. Return the Veteran's claims file to the examiner who conducted the Veteran's VA examination in December 2010, or to a qualified medical professional if the examiner is unavailable. If the examiner determines that an examination is necessary, one should be scheduled. The entire claims file and all pertinent records must be reviewed by the examiner. After reviewing the record, the examiner should address whether it is at least as likely as not (a 50 percent probability or greater), that any current hearing loss is etiologically related to the Veteran's active military service, to include any in-service noise exposure. The audiologist is advised that the Board has found that the Veteran was exposed to loud noise in service, and the absence of separation audiometric findings should not preclude an opinion. A complete rationale should be provided for all opinions and the examiner's rationale cannot be premised solely on the fact that the Veteran's separation examination did not show hearing loss. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. Thereafter, readjudicate the Veteran's claim with application of all appropriate laws and regulations, and consideration of any additional information obtained as a result of this remand. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an appropriate period of time within which to respond. The Appellant has the right to submit additional evidence and argument on the matter 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 2002). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs