Citation Nr: 1338871 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 11-03 835 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to a rating in excess of 20 percent for right forefoot region, with residual severe osteoarthritis, right fourth toe proximal interphalangeal joint, with mild fifth toe hammertoe (right forefoot disability). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The Veteran had active duty service from August 1960 to August 1970. These matters come before the Board of Veterans' Appeals from March 2009 and February 2011 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA), which, respectively, denied service connection for tinnitus and hearing loss, and continued the Veteran's 20 percent rating for right forefoot disability. With respect to the claims for tinnitus and hearing loss, the Veteran submitted a notice of disagreement in March 2009, a statement of the case was issued in January 2011, and a substantive appeal was received in January 2011. As for the matter of an increased rating for right forefoot disability, a notice of disagreement was submitted in November 2011, a statement of the case was issued in June 2012, and a substantive appeal was received in June 2012. The Veteran testified at a Board videoconference hearing in June 2013. The matters of service connection for bilateral hearing loss and an increased rating for right forefoot disability are being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. FINDING OF FACT The Veteran's tinnitus is casually related to noise exposure during active duty service. CONCLUSION OF LAW The Veteran's tinnitus was incurred in active duty service. 38 U.S.C.A § 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is seeking service connection for tinnitus, which he contends began during active duty. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that it has reviewed all the evidence in the Veteran's claims file and in Virtual VA. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran's DD-214 reflects that his military occupational specialty was a sheet metal worker. His STRs are silent for complaints, treatment, or diagnosis of tinnitus. On January 2009 VA audiological evaluation, the Veteran reported onset of tinnitus "five to six years ago." He described the tinnitus as being loud and high-pitched ringing in nature. The examiner noted the etiology as "likely as not...a symptom of hearing loss." The Board notes that audiological testing revealed the presence of bilateral sensorineural hearing loss. The Veteran was recommended for an ear, nose, and throat consultation, which also took place in January 2009. The audiologist opined that because the Veteran reported onset of tinnitus five to six years prior, many years following military service, "it is less likely than not tinnitus is related to military service." A January 2011 VA audiology note indicates that the Veteran presented complaining his tinnitus had worsened. In June 2013, the Veteran testified that he served as a welder in the military and was exposed to acoustic trauma in service without hearing protection. He explained that although he also worked as a welder post-service, he was required to wear hearing protection. He further stated that the tinnitus began during service and has continued since, but that it worsened in the past 5-10 years. Tr. at 5-7. In this case, the Veteran contends that he is entitled to service connection for tinnitus as a result of acoustic trauma experienced during active duty. It is not in dispute that the Veteran has tinnitus, as competent (medical) evidence of record documents his complaints, and tinnitus is a disability capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Additionally, the Veteran's DD-214 shows that his military occupational specialty was a sheet metal worker. The Veteran also testified that he was a ship welder. He stated that "for...10 years, [he] was exposed to loud and damaging noise" and that there "was never any hearing protection available." See November 2011 statement. Therefore, the Board concedes that he was exposed to acoustic trauma in service. What the Veteran must still show to establish service connection for his tinnitus is that the current disability is related to acoustic trauma in service. In this regard, the Board is presented with a situation where there is favorable evidence (in the form of the Veteran's statements and testimony as to symptomatology he is competent to report, see Barr v. Nicholson, 21 Vet. App. 303 (2007)), and negative evidence (in the form of the January 2010 ear, nose, and throat consultation opinion). Although the Veteran is competent (even as a layperson) to report symptoms which he has experienced, the Board must determine if he is credible. In this regard, the Board has reviewed the service records and post-service records and finds no persuasive reason not to find the Veteran credible. He has consistently maintained that his tinnitus began in service and has continued since. As for the comment on January 2009 examination about onset of tinnitus five to six years prior, he testified in June 2013 that he was trying to explain how his tinnitus became more noticeable/worsened in the years prior, but that his tinnitus began in service and has continued since. Further, although tinnitus or ringing in the ears was not reported on in-service examinations, the examination reports do not include any specific questions about tinnitus. Under these circumstances, the Board views the Veteran as credible as to the time of onset of the tinnitus. This finding together with the fact that he was clearly exposed to acoustic trauma during service places the favorable evidence in a state of equipoise with the negative medical opinion. Accordingly, service connection for tinnitus is warranted. 38 U.S.C.A. § 5107(b). There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim. Specifically, ordering a new VA examination; however, under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. See Ashley v. Brown, 6 Vet. App. 52, 59 (1993); Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance. In this matter, the Board is of the opinion that this point has been attained. Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993). In closing, there is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations in this case since there is no detriment to the veteran as a result of any VCAA deficiency in view of the fact that the full benefit sought by the Veteran is being granted by this decision of the Board. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). By letter dated in June 2008, the Veteran was furnished notice of the manner of assigning a disability evaluation and an effective date. He will have the opportunity to initiate an appeal from these "downstream" issues if he disagrees with the determinations which will be made by the RO in giving effect to the Board's grant of service connection. ORDER Entitlement to service connection for tinnitus is warranted. To this extent, the appeal is granted. REMAND The Veteran is also seeking entitlement to service connection for bilateral hearing loss. He was afforded a VA audiological evaluation in January 2009, at which time bilateral sensorineural hearing loss was diagnosed. On an associated ear, nose, and throat consultation, the audiologist opined that "because there are no data to compare today's findings with, the issue of relation of hearing loss to noise exposure in military service cannot be resolved without resorting to speculation." Unfortunately, the Board finds this opinion inadequate. The Court held in Jones v. Shinseki that a VA medical examiner's report was inadequate to resolve the service connection claim where an examiner failed to articulate a reasoned explanation of his conclusion that no opinion was possible without resort to mere speculation. Jones, 23 Vet. App. 382, 390-92 (2010). Therefore, the Board finds that obtaining another VA medical opinion, which is clearly based on full consideration of the Veteran's assertions and which is supported by a clearly stated rationale, is needed to resolve the claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Regarding the matter of an increased rating for right forefoot disability, the Veteran was afforded VA examinations in January 2009 and January 2011. Since then, updated VA treatment records (located in Virtual VA) have been associated with the file. Specifically, a December 2011 record notes the Veteran seen for evaluation of a painful right foot and diagnostic imaging, which revealed residual metatarsus adductus and evidence of joint spare narrowing. This evidence suggests a possible worsening of his right forefoot disability, and as such, a contemporaneous examination to assess the current severity of his disability is warranted. Accordingly, the case is REMANDED for the following actions: 1. The RO should obtain any VA treatment records (since June 2012) not already of record relevant to the claims remaining on appeal. 2. Then, the Veteran should be scheduled for an appropriate VA examination to ascertain the nature and etiology of his bilateral hearing loss. The claims file must be made available to the examiner for review. After examining the Veteran and reviewing the claims file, the examiner should respond to the following: Whether it is at least as likely as not (a 50% or higher degree of probability) that any current hearing loss is related to active duty service, to include as due to acoustic trauma therein? If the Veteran fails to report for the scheduled examination, the claims file should nevertheless be forwarded to an appropriate examiner for review and an opinion on the above question. A detailed rationale should be provided for all opinions furnished. 4. The Veteran should also be scheduled for an appropriate VA examination to determine the severity of his service-connected right forefoot disability. It is imperative that the claims folder be reviewed in conjunction with the examination. The examiner should specifically indicate whether the Veteran's disability is moderate, moderately severe, or severe in nature; or whether the Veteran has lost use of his foot. The Board notes that the Veteran contends he was not previously afforded X-rays to determine the extent of damage to his toes. Should the examiner determine that diagnostic imaging or special tests are needed to determine the severity of the Veteran's disability, such should be conducted and all clinical findings clearly reported to allow for application of VA rating criteria. 4. In the interest of avoiding further remand, the RO should review the examination reports obtained and ensure that they are adequate. If not, the case should be returned to the examiner(s) for an appropriate addendum. 5. After completion of the above, the RO should review the expanded record and determine if the benefits sought can be granted. The Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board if in order for further appellate review. The appellant has the right to submit additional evidence and argument on the 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs