Citation Nr: 1338236 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 11-32 575 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Dean, Associate Counsel INTRODUCTION The Veteran had active military service from December 1967 to July 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 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. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues 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 Tinnitus is etiologically related to noise exposure during active service. CONCLUSION OF LAW Tinnitus was incurred in active service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Given the favorable disposition of the claim, the Board finds that all notification and development actions needed to fairly adjudicate this claim has been accomplished. Legal Criteria Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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 lay and medical evidence of record in a case before the Secretary with respect to benefits under 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 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Veteran has asserted that he has tinnitus as a result of acoustic trauma sustained in active service. Specifically, the Veteran has reported that while serving in Vietnam, he was assigned to an artillery unit that produced excessive noise trauma. He also stated that he was exposed to acoustic trauma while undergoing weapons qualifications for the M-14 and M-16. The Veteran's DD Form 214 confirms that he served in Vietnam and shows that his military occupational specialty (MOS) was field illumination crewman. His Record of Assignments confirms that he was attached to artillery units while serving in Vietnam from April 1968 to July 1969. The Board has found nothing in the record that contradicts the Veteran's contentions concerning his in-service noise exposure. Therefore, the Board finds that the Veteran's reports of noise exposure during active service are both competent and credible. As such, the Board concedes the Veteran's acoustic trauma during active service. A review of the Veteran's service treatment records (STRs) shows that at the time of his induction examination in December 1967, the Veteran had no complaints of tinnitus. Further review of his STRs fails to show any complaints of symptoms of tinnitus at any time during his active service or at the time of his separation examination. However, in his January 2010 notice of disagreement (NOD), the Veteran stated that his tinnitus had existed since service. Specifically, he stated that his tinnitus started while in was in Vietnam, it worsened over the years, and in 1975 it began to bother him more consistently. The Board notes that the Veteran is competent to report when he first experienced symptoms of tinnitus and that they have continued since service. See Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). The Board finds that based on his assertion that he experienced symptoms of tinnitus since service in Vietnam, the Veteran is credible in this regard. A review of the Veteran's post-service treatment records show that the Veteran received VA audiology treatment since at least September 2008. A treatment notation from April 2009 confirms a history of tinnitus. In July 2009, the Veteran was afforded a VA audiology evaluation. At that time, he reported in-service exposure to artillery, explosives, and gunfire. He denied high level noise exposure in his civilian occupation or recreational activities. The examiner noted that he reported constant tinnitus that began in approximately 1975. The examiner opined that the Veteran's tinnitus was less likely as not a result of noise trauma in service, as there were no complaints of tinnitus in his service treatment records, and he stated the tinnitus began in 1975. The Board notes that the Veteran stated in his NOD that the examiner misconstrued his statement. He reported that he told the examiner the tinnitus started in service but started to consistently bother him in 1975. 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed. Cir. 2006). 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, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. Dalton v. Nicholson, 21 Vet. App. 23 (2007); Caluza v. Brown, 7 Vet. App. 498 (1995). In this case, the Veteran is competent to identify tinnitus and his statements of such have been found credible, as they have been consistent. In sum, the Board has conceded the Veteran's exposure to hazardous noise while in active service. The Veteran has competently reported that he has experienced tinnitus since active service and that he has continued to experience such since his separation from active service, and these statements have been found credible by the Board. Accordingly, the Board finds that the evidence for and against the claims is at least in equipoise. When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013). Therefore, the benefit of the doubt must be resolved in favor of the Veteran and entitlement to service connection for tinnitus is warranted. ORDER Entitlement to service connection for tinnitus is granted. REMAND The Board finds that additional development is required before the Veteran's claim for service connection for bilateral hearing loss is decided. Remand is required for this claim to obtain adequate etiological opinion. Where VA provides a veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In addition, the absence of a hearing loss disability for VA purposes at separation does not automatically preclude service connection. Hensley v. Brown, 5 Vet. App. 155 (1993). Furthermore, a Veteran is competent to report lack of hearing acuity during service as well as a continuation of those symptoms. Barr, 21 Vet. App. at 307-08 (stating that lay testimony is competent to establish observable symptomatology). Here, the Veteran has asserted that he has bilateral hearing loss disability directly related to hazardous noise exposure sustained during active service. As stated earlier, the Board concedes acoustic trauma at this time. A review of the Veteran's STRs shows that at the time of his induction examination in December 1967, the Veteran was noted to have normal hearing based upon an audiometric evaluation. Reported puretone thresholds, in decibels, were: HERTZ 500 1,000 2,000 3,000 4,000 RIGHT 15 0 0 0 5 LEFT 10 0 5 0 5 In July 1969, the Veteran was afforded a separation examination. A review of the examination report shows that the Veteran's hearing went through a shift between his April 1966 audiogram at the time of his enlistment into active service and the later separation examination. Reported puretone thresholds, in decibels, were: HERTZ 500 1,000 2,000 3,000 4,000 RIGHT 10 0 0 -- 10 LEFT 20 10 5 -- 10 While the Veteran's hearing was worse at separation from active service than upon his induction, he did not have hearing loss disability for VA purposes at any point during his service. 38 C.F.R. § 3.385. In July 2009, the Veteran was afforded a VA audiological examination. A review of the examination report shows that at that time, the examiner diagnosed mild sensorineural hearing loss in the right ear and normal to moderately severe sensorineural hearing loss in the left ear. The examiner opined that it less likely as not that the Veteran's bilateral hearing loss disability was a result of noise trauma in service. In this regard, the examiner noted that the Veteran's hearing was normal upon separation, and that an Institute of Medicine study found no evidence of late onset hearing loss after noise exposure. The Board notes that the July 2009 VA examiner did not address the threshold shift in the Veteran's hearing acuity during active service. The threshold for normal hearing is between 0 and 20 decibels and a higher threshold is indicative of some degree of hearing loss. Hensley, 5 Vet. App. at 157. Therefore, the Board finds that while the Veteran did not have bilateral hearing loss disability for VA compensation purposes at any time during active service, the Veteran's hearing acuity worsened during his active service. Therefore, the July 2009 VA examination and opinion are inadequate for adjudication purposes. As such, the Veteran should be afforded a new VA examination to determine the nature and etiology of any currently present bilateral hearing loss disability. Finally, any additional VA treatment records should be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain any outstanding relevant VA treatment records (to include, but not limited to, records from the Tampa, Florida VAMC), dated from April 2009 to the present. 2. Thereafter, schedule the Veteran for a VA audiological examination. The claims file and a complete copy of this REMAND must be made available to and reviewed by the examiner in conjunction with the examination. The VA examination report should indicate that this has been accomplished. All necessary studies and tests should be conducted. Appropriate testing should include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. The examiner should specifically report the auditory thresholds in the frequencies 500, 1000, 2000, 3000, and 4000 Hertz for both ears. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hearing loss (if at a level of impairment to be considered a disability for VA purposes (see 38 C.F.R. § 3.385)) had its clinical onset during active service, or is related to any in-service disease, event, or injury, to include hazardous noise exposure. The examiner must specifically address the shift in the Veteran's hearing acuity that has been shown to have occurred in service. In providing this opinion, the examiner should acknowledge the Veteran's exposure to acoustic trauma in service due to weapons fire and any statements regarding continuity of symptomatology since service. The examiner also should note that the fact that there was no diagnosis of hearing loss in service is not, by itself, a sufficient reason to deny service connection for hearing loss. A full rationale must be provided for all opinions expressed. 3. Next, review the claims file and ensure that the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If the examination report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 4. Finally, after completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal. If any benefit sought on appeal remains denied, furnish the Veteran and his representative, if any, with an SSOC and afford them the appropriate time period for a response before the claims file is returned to the Board for further appellate consideration. 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). ______________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs