Citation Nr: 1339482 Decision Date: 12/02/13 Archive Date: 12/13/13 DOCKET NO. 12-11 006 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Nadia Kamal, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1964 to September 1968. This matter comes before the Board on an appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. The issue of entitlement to 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 The Veteran's tinnitus had its onset in active military service. CONCLUSION OF LAW Tinnitus was incurred in active duty. 38 U.S.C.A. §§ 1110, 1111, 1137, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs has a 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). The Board is granting in full the benefits sought on appeal for entitlement to service connection for tinnitus. Accordingly, assuming, without deciding, that there was any error with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002). Generally, the evidence must show: (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, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). Lay evidence may be sufficient by itself to support a claim of service connection. Barr v. Nicholson, 21 Vet. App. 307 (2007). This is the case where the evidence is both competent and credible. Competency is "a legal concept determining whether testimony may be heard and considered" whereas credibility is "a factual determination going to the probative value of the evidence to be made after the evidence has been admitted." Layno v. Brown, 6. Vet. App. 465 (1994). A lay person is competent to provide testimony or statements relating to facts of events that the lay person observed or that is within the realm of his/her personal knowledge. Id. Factors for consideration in weighing the credibility of a lay person include a showing of interest, self-interest, bias, inconsistent statements, inconsistency with other evidence of record, facial implausibility, bad character, malingering, desire for monetary gain, and witness demeanor. See Pond v. West, 12 Vet. App. 341 (1999); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995); Cartright v. Derwinski, 2 Vet. App. 24 (1991). "[T]he Board cannot determine that lay testimony or a lay statement lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the lack of such evidence in combination with other factors may lead to the determination the lay testimony or statement is not credible. The benefit of the doubt is given to the Veteran when there is an "approximate balance" of positive and negative evidence regarding any issue material to the determination of a matter. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such, the Veteran prevails when the preponderance of the evidence supports his claim or is in relative equipoise but does not prevail when the preponderance of the evidence is against the claim. Id. Although his service treatment records are silent with respect to tinnitus, the Veteran presents competent evidence of in-service noise exposure as his DD-214 reflects that he was an aircraft mechanic during service. 38 U.S.C.A. § 1154(a). He likewise presents competent evidence of experiencing tinnitus in-service and post-service as it is a disability which laypersons are competent to identify. Charles v. Principi, 16 Vet. App. 370 (2002). He says he has been experiencing symptoms of tinnitus since service discharge. No factors suggest any reason for doubt. It is facially plausible that the Veteran experienced tinnitus at some point during service when he was exposed to noise and that tinnitus persisted thereafter. That he complained of a history of tinnitus in November of 2010 to R.G., Au.D., also supports his contention of a continuity of tinnitus following service. Pursuant to Buchanan, no negative inference can be drawn from the fact that there is no indication of such treatment in-service or between his discharge until the late 2000's. Recognition rather is given to the fact that tinnitus is not a condition or so significant a condition for which a reasonable individual would feel treatment is required. As such, the Board finds the Veteran's statements that his current tinnitus had its initial onset during his active duty to be of great probative value. In sum, there is sufficient evidence demonstrating that the Veteran has experienced tinnitus on a continuous basis since his active service. Service connection for tinnitus is established. ORDER Entitlement to service connection for tinnitus is granted. REMAND Additional development is required before the claim for service connection for hearing loss can be decided. The Veteran asserts that he has a bilateral hearing loss disability as a result of noise exposure during active duty. Specifically, reports exposure to noise from jet engine aircraft and reciprocating aircraft engines. The Board concedes noise exposure during service. In February 2011, the Veteran was afforded a VA audiological examination to determine the nature and etiology of his bilateral hearing loss disability. At this examination, he reported that had difficulty hearing conversations, especially if there was background noise. He further reported occupational noise exposure post service while working in a factory for eleven years without hearing protection as well as recreational noise exposure in the 1970s to motorcycles. After an examination of the Veteran and consideration of his complaints, the examiner diagnosed the Veteran with normal to moderately severe sensorineural hearing loss in both ears. The VA examiner opined that it was not at least as likely as not that the Veteran's hearing loss was related to service. In support of her opinion, she noted that the Veteran's bilateral hearing was within normal range upon his in service exams in 1964 and 1968. The examiner's rationale for her negative opinion in the February 2011 VA examination was problematic for the following reasons. First, the VA examiner based her rationale for finding that the Veteran's hearing loss was less likely than not related to service solely upon the Veteran's normal separation examination and the absence of any in-service treatment or complaints of hearing loss. This is not always fatal to a service connection claim for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The VA examiner also failed to consider the Veteran's prior complaints of hearing loss as well as the Veteran's private examination with R.G., Au.D., documenting a history of hearing loss. Finally, the hearing loss was not described in sufficient detail to include a consideration of the Veteran's noise exposure in-service. Therefore, the examination was inadequate and the matter should be readdressed on a new examination. Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to obtain any pertinent treatment records that are not already of record. 2. Then, the Veteran should be afforded a VA examination by an examiner with sufficient expertise to determine the nature and etiology of any currently present bilateral hearing loss disability. The claims file, to include any evidence in Virtual VA that is not included in the claims file, must be made available to and reviewed by the examiner. All indicated studies should be performed. Based upon the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's current bilateral hearing loss disability is etiologically related to service, to include his credible report of hazardous noise exposure. For the purposes of the opinion, the examiner should consider the November 2010 private audiology report and the Veteran's statements with regard to a continuity of hearing loss following service. A rationale for all requested opinions shall be provided, with citation to medical treatise, studies, etc., if appropriate. If an opinion cannot be provided without resorting to mere speculation, please provide a complete explanation stating why this is so. In so doing, you must explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that you have exhausted the limits of current medical knowledge in providing answers to the questions. 3. Therefore, the RO or the AMC should undertake any other development it determines to be warranted and then readjudicate the Veteran's claim on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, a Supplemental Statement of the Case should be furnished to the Veteran and his representative, and they should be afforded the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. 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). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs