Citation Nr: 1338964	
Decision Date: 11/26/13    Archive Date: 12/06/13

DOCKET NO.  13-10 570	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUES

1.  Entitlement to service connection for tinnitus.

2.  Entitlement to service connection for a bilateral hearing loss disability.


REPRESENTATION

Appellant represented by:	Oregon Department of Veterans' Affairs


ATTORNEY FOR THE BOARD

A. Chance, Associate Counsel



INTRODUCTION

The Veteran served on active duty with the United States Air Force from November 1961 to November 1965.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision by the Portland, Oregon, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied service connection for a bilateral hearing loss disability and tinnitus.

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 files or are irrelevant to the issue on appeal.

The issue of service connection for a bilateral 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

The Veteran's current tinnitus disability cannot be satisfactorily disassociated from excessive noise exposure during active service.


CONCLUSION OF LAW

The Veteran's tinnitus disability was incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303.



REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). As the Board has determined that service connection for tinnitus is warranted, further discussion of the VCAA is unnecessary.

Law and Regulations- Service Connection

Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). 

In order to establish service connection on a direct basis, the record must contain: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

If there is no evidence of a chronic condition during service or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. The U.S. Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in § 3.303(b) is limited to the chronic diseases listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for disease that is diagnosed after discharge from active service, when the evidence establishes that such disease was incurred in service.  38 C.F.R. § 3.303(d).

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

In determining whether service connection is warranted for a disability, 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 preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b).

Analysis

The Veteran contends that as an aircraft jet engine mechanic in the military, he was exposed to excessive acoustic trauma which has led to his current tinnitus disability. Specifically, he alleges that his tinnitus disability began in the mid-1960's while serving on active duty. Therefore, he believes that he is entitled to service connection. 

As noted above, to be successful in a claim of service connection, there is generally three required elements: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a casual relationship between the present disability and the disease or injury incurred or aggravated during service.

Here, the Veteran has a current diagnosis of tinnitus. Tinnitus is a disability in which the Veteran himself can report its existence. This disability was noted during the September 2011 and July 2013 VA examinations. Thus, a current disability is well established. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000).

The next requirement of direct service connection is that the Veteran must have suffered an in-service injury or disease. Again, the Veteran contends that as an aircraft jet engine mechanic in the United States Air Force, he was exposed to excessive acoustic trauma from jet engines within close proximity on a daily basis for approximately 2.5 years. He alleges that although earmuff style hearing protection devices were provided and worn, they were not useful because he could still hear the jet noise and felt the vibrations. In light of the Veteran's military occupational specialty, the Board will presume that the Veteran's allegations of excessive noise exposure are true because it is consistent with his service and duties. Therefore, his noise exposure during service is conceded and the second element of service connection is satisfied- an in-service injury or disease.

Therefore, this claim turns upon the existence of the third requirement of service connection- a "nexus" or relationship between the Veteran's current tinnitus disability and the noise exposure during active service. In support of his claim for service connection for his tinnitus disability, the Veteran offered lay evidence through credible written statements that he was constantly within close proximity to jet engines running at full power on a daily basis for approximately 2.5 years. He stated that although he wore hearing protection, it was not very useful because he could still hear the jet noise and could feel the vibrations that damage hearing acuity, as the sound levels were exceedingly high. Additionally, he stated that while he worked as an aircraft mechanic and inspector post-military, he always wore hearing protection and the post-service occupational noise exposure was not as significant as the exposure during active duty.

The Board finds that the Veteran's lay statements are credible because there is nothing in the record that directly contradicts his statements. However, while the Veteran is competent to report the symptoms that he experiences and the presence of tinnitus, he is not competent to provide the etiology of his current tinnitus disability. The Veteran lacks the required knowledge and specialized skills to do so. Again, this is a medical question of some complexity of which the Veteran is not competent to address. 

In addition, the Veteran submitted lay evidence in the form of internet research from the Occupational Safety and Health Administration (OSHA). The research generally suggested that exposure to high levels of noise can cause permanent hearing loss and tinnitus, and gave recommendations for occupational noise control. While this evidence is credible, it is not capable of providing the missing nexus requirement between the Veteran's current tinnitus disability and his military service. This literature merely lists the outcomes that could result from excessive occupational noise exposure and suggestions for controlling such. 

Lastly, the Veteran submitted a private audiogram from November 1965, approximately one week before his discharge from service which is irrelevant to his current tinnitus claim, as it does not include any complaints or a diagnosis of such.

Upon review of the Veteran's service treatment records, there is no indication of any complaints or diagnosis of tinnitus during service.

The Veteran was afforded an initial VA audiology examination in September 2011 to determine the etiology of his current tinnitus disability. The VA examiner, a licensed audiologist, reviewed the Veteran's claims file and his medical history. She opined that the Veteran's current tinnitus disability was at least as likely as not a symptom of his current bilateral hearing loss disability, which the examiner further opined was not related to his military service noise exposure. Upon receipt of additional evidence (discussed above), the Veteran was afforded a subsequent VA audiology examination in July 2013, by a different examiner. Again, that examiner- a licensed audiologist, reviewed the Veteran's claims file and his medical history. He opined that the Veteran has a diagnosis of clinical hearing loss, and that his tinnitus is at least as likely as not a symptom associated with the hearing loss. The Board notes that the examiner opined that the Veteran's bilateral hearing loss disability was not at least as likely as not caused by or the result of his military service noise exposure, but provided an inadequate rationale for such opinion. Additionally, the examiner opined that the Veteran's current tinnitus is at least as likely as not caused by or a result of military noise exposure. He supported the latter opinion with the rational that prior to military service, the Veteran did some shooting but nothing major, during service he worked on the flight line servicing jet engines that were often running, the Veteran reported that even with hearing protection the sound levels were exceedingly high, and lastly because he had routine testing during his post-service employment as a mechanic and inspector.

While the Board notes that the opinions provided by the July 2013 examiner may appear to be contradictory, the latter opinion which provided a nexus between the current tinnitus and the military noise exposure, was supported by adequate rational. The former opinion, merely addressed the possibility that the tinnitus disability was associated with the Veteran's hearing loss, as tinnitus is known to be a symptom of such. Therefore, the Board finds that the July 2013 VA examination provides a positive and competent medical opinion which supports the Veteran's claim of service connection for tinnitus. Furthermore, given the fact that the Veteran gave credible statements regarding his post-service employment noise exposure, hearing protection always being worn while on the job, and his post-service routine testing, it cannot be definitively determined that his post-service exposure is the cause of his current tinnitus disability.

Essentially, the Veteran's tinnitus disability cannot be satisfactorily disassociated from his active service. Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied and doubt is resolved in the Veteran's favor. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993). As such, the Board finds that entitlement to service connection for tinnitus may be granted.


ORDER

Entitlement to service connection for tinnitus is granted.


REMAND

The Board finds that further development is necessary prior to final adjudication of the bilateral hearing loss disability claim on appeal.

VA is required to seek a medical opinion if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains competent lay or medical evidence of a current disability, establishes that the veteran suffered an event, injury or disease in service, and indicates that the current disability may be associated with the in-service event, injury or disease. 38 C.F.R. § 3.159(c)(4) (2013). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

"[W]hen audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993).

In the instant case, the Veteran underwent VA audiology examinations in September 2011 and July 2013 to determine the existence of a bilateral hearing loss disability, and if so, the etiology of such. Both examinations resulting in opinions in which the examiner opined that the current bilateral hearing loss disability was not at least as likely as not caused by or the result of military noise exposure because the Veteran's hearing acuity was within normal limits at the time of separation from service. As addressed by the court in Hensley, the Board finds these medical examinations and opinions to be inadequate for evaluation purposes of the bilateral hearing loss claim. A new medical opinion must be provided and the examiner must provide a more substantive rationale for the opinion that the Veteran's current bilateral hearing loss disability is not at least as likely as not caused by or the result of his military noise exposure, if that same opinion is rendered subsequently. 


Accordingly, the case is REMANDED for the following action:

1. Provide the claims file to a licensed audiologist, other than the September 2011 and July 2013 examiners, skilled in the diagnosis and treatment of hearing disorders, for the purpose of reviewing the file and providing an adequate opinion as to whether the Veteran's current diagnosis of a bilateral sensorineural hearing loss disability is at least as likely as not (50 percent probability or greater) caused or aggravated by his military service. If the examiner believes that such an opinion cannot be made without an additional examination of the Veteran, then such an examination should be scheduled. .The examiner is advised that in-service noise exposure due to the Veteran's military occupational duties is conceded.

The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it.



A full and complete rationale for any opinion expressed is required. The examiner must address the allegations in the lay evidence of record in light of the fact that lay testimony can be sufficient to establish a nexus. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must 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 the 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). Jones v. Shinseki, 23 Vet. App. 382 (2010).

2. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then re-adjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order.

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 Supp. 2012).




______________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs