Citation Nr: 1339635 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 09-34 509 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Finn, Counsel INTRODUCTION The Veteran served on active duty from January 1971 to February 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In July 2010, the Veteran testified during a personal hearing at the RO and, in February 2012, the Veteran testified at a video conference hearing before the undersigned. Transcripts of these hearings are associated with the claims file. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present 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 It is just as likely as not that the Veteran's tinnitus is a consequence of noise exposure during his military service. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, tinnitus is the result of injury - namely, acoustic trauma - incurred during his service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION Preliminarily, the Veterans Claims Assistance Act of 2000 (VCAA) outlines procedural assistance VA must provide to claimants in certain cases. In light of the full grant, the Board need not discuss whether there has been compliance with these duty-to-notify-and-assist obligations. The Veteran asserts that he has suffered from tinnitus since his in-service noise exposure to weapons discharge and an explosion. (See February 2012 Hearing Transcript pp. 3, 7, and 12). Based on the evidence of record, service connection for tinnitus is warranted. After a careful review of the record, and resolving all doubt in favor of the Veteran, the Board has determined, based upon the medical and satisfactory lay evidence that the Veteran's current tinnitus was incurred during his active service. Tinnitus is defined as "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." Dorland's Illustrated Medical Dictionary, 1956 (31st ed. 2007). Because tinnitus is "subjective," its existence is generally determined by whether the veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). Accordingly, the Board finds the Veteran's statements that tinnitus symptoms existed since active service are competent and credible evidence of a continuity of symptoms of tinnitus since his active service. An August 2010 VA examination with a September 2010 addendum concluded that the Veteran tinnitus was less likely as not caused by or a result of military noise exposure. The rationale was premised on the fact that the Veteran reported to the examiner that his tinnitus occurred approximately 10 to 12 years prior. However, at the time of the VA examination, the Veteran actually stated that he "was not sure of onset, but that it has been present for approximately 10 to 12 years." The VA examiner's opinion is flawed in that the Veteran clarified during his hearing that he had tinnitus since service, but that he received treatment five or six years prior. (See February 2012 Hearing Transcript pp. 7 and 9). While the VA opinion concluded that tinnitus was less likely than not related to service, the examiner failed to address the Veteran's history of noise exposure and credible lay statements. After a review of the opinion, the service records, and the lay testimony, the evidence is in equipoise as to the issue of a nexus between the current condition and the symptomatology. Thus, resolving all reasonable doubt in the Veteran's favor, the Board concludes that service connection for tinnitus is warranted. ORDER Service connection for tinnitus is granted. REMAND The Veteran filed a service connection claim for bilateral hearing loss. The RO, in part, denied the claim because bilateral hearing loss pre-existed service and did not worsen while in service. (See August 2009 SOC and April 2011 SSOC ). To reach these conclusions, the RO relied, in part, on the opinion of the August 2010 VA examiner. An August 2010 VA examination opinion with a September 2010 addendum concluded that the Veteran's hearing loss was less likely as not caused by or a result of military noise exposure. The rationale was premised on the fact that the Veteran had a bilateral, high-frequency hearing loss at induction and separation as observed by audiometry findings in the claims file, but that there was no worsening of hearing from induction to separation; And that, research to noise exposure and hearing loss do not support delayed onset of hearing loss. However, the VA examination report is inadequate for purposes of adjudicating the claim. First, the VA examiner does not cite to any research that he referenced to support his conclusion. Second, the VA examiner did not adequately explain aggravation when the STRs showed that the Veteran experienced threshold shift during service, particularly for the left ear. Specifically, the Veteran's September 1970 enlistment examination showed a 5 decibel loss at 500 Hertz, 5 decibel loss at a 1000 Hertz, 10 decibel loss at 2000 Hertz, and 40 decibel loss at 4000 Hertz in the right ear. His hearing loss in the left ear was 5 decibel loss at 500 Hertz, 5 decibel loss at 1000 Hertz, 5 decibel loss at 1000 Hertz, 5 decibel loss at 2000 Hertz, and 5 decibel loss at 4000 Hertz. The Veteran's separation examination, conducted in February 1973, showed a 20 decibel loss at 500 Hertz, 15 decibel loss at 1000 Hertz, 5 decibel loss at 2000 Hertz, and 35 decibel loss at 4000 Hertz in the right ear. In the left ear, he demonstrated a 10 decibel loss at 500 Hertz, 10 decibel loss at 1000 Hertz, 0 decibel loss at 2000 Hertz, and 35 decibel loss at 4000 Hertz. As shown above, the Veteran appears to have had a significant threshold shift particularly for the left ear. The significance of these changes are beyond the competence of the Board, see Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board is not competent to substitute its own opinion for that of a medical expert), and should be addressed in another clarifying opinion so that the question of whether the Veteran's bilateral hearing loss was aggravated in service can appropriately be addressed. Further, the VA examiner's opinion does not take into account the Veteran's assertions that he has experienced the symptoms of hearing loss since service. He is competent to report symptoms that are non-medical in nature. The matter should be remanded in order to obtain a supplemental opinion, or if the previous examiner is not available, another VA examination with opinion. Also, the Veteran testified that he had available medical records from his former employer "Good Year Rubber." The RO must attempt to obtain missing non-VA and VA records for that period and any employment medical records pertinent to the issue on appeal. Accordingly, the case is REMANDED for the following action: 1. The RO should ask the Veteran to identify all VA and non-VA health care providers that have treated him for hearing loss. The RO should attempt to obtain records not associated with the claims file from each health care provider he identifies and indicates may still have records available, in particular any missing records from his previous employer "Good Year Rubber." The Veteran should also be asked to sign a release of information from his former employer(s). If records are unavailable, please have the provider or employer so indicate. 2. The RO/AMC should forward the claims folder to the audiologist that conducted the August 2010 VA examination, if available, for a supplemental opinion. If not available, the RO/AMC should schedule the Veteran for an audiological examination. A copy of this Remand and the claims folder must be made available to the examiner for review. The opinion should include a discussion of the Veteran's documented history, and offer a complete explanation for the given diagnosis or diagnoses and all medical opinions. The examiner is specifically requested to address the following in regard to the Veteran's hearing loss: (a) Did the Veteran's hearing loss exist prior to his period of active duty? In this regard, the examiner is asked to comment on the Veteran's STRs, specifically his enlistment examination of September 1970 and his separation examination of February 1973. (b) If hearing loss pre-existed the Veteran's period of active duty, did such disease increase in disability during such period of active duty? In answering this question, the examiner is asked to specify whether the Veteran sustained temporary or intermittent symptoms resulting from service; or, whether there was a permanent worsening of the underlying pathology due to service, resulting in any current disability. (c) If hearing loss increased in disability during service, was that increase due to the natural progression of the disease? 3. Then, the RO/AMC should review the Veteran's entire record, and readjudicate the claim. If the claim is denied, in whole or in part, the RO/AMC should provide the Veteran and his representative with a supplemental statement of the case (SSOC) and allow an appropriate period of time for response. Thereafter, the claims file should be returned to the Board for further appellate review, if otherwise in order. The Veteran 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. 2013). ______________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs