Citation Nr: 1339700 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 11-19 731 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri 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 J. Moses, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from July 1962 to December 1962, and additional duty with the U.S. Army Reserve. This matter came before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the St. Louis, Missouri, Regional Office (RO), which denied service connection for tinnitus and bilateral hearing loss. 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. FINDINGS OF FACT 1. The Veteran was exposed to acoustic trauma (loud noise) during service. 2. Tinnitus originated during active service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, tinnitus was incurred in active service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2013). In the present case, the Board grants service connection for tinnitus. This decision constitutes a full grant of the benefits sought on appeal; therefore, no further discussion regarding VCAA notice or assistance duties is required. Service Connection Legal Authority Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may 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). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed aggravation of a disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Tinnitus is not a "chronic disease" enumerated under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are not applicable with respect to the claimed disorder. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465 (1994). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Service Connection Analysis The Veteran contends that service connection is warranted for tinnitus resulting from his in-service noise exposure as a "sharpshooter," which he claims has persisted to the present time. On the April 2010 claim form and accompanying statement, the Veteran reported that he experienced tinnitus after being exposed to loud noise on the shooting range during service. After a review of all the evidence, the Board finds that the Veteran has a current disability of tinnitus. In Charles v. Principi, 16 Vet. App. 370 (2002), the United States Court of Appeals for Veterans Claims (Court) determined that tinnitus is the type of disorder associated with symptoms capable of lay observation. When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303, 308-10 (2007); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (stating that lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition). The Board finds that the Veteran was exposed to loud noise (acoustic trauma) during service. On the April 2010 claim form and accompanying statement, the Veteran reported that he was exposed to loud noise on the shooting range during service. The Veteran's personnel records reflect that he was awarded a badge for his proficiency in shooting rifles. In a March 2013 statement, the Veteran's representative stated that the Veteran shot weapons in service without hearing protection. The Board finds that the evidence is at least in equipoise on the question of whether the tinnitus originated during service, that is, was incurred in service. The Veteran's has asserted that, following the loud noise exposure in service, he experienced symptoms of tinnitus, and that the tinnitus has continued since then. The Veteran's statements are competent and, not inconsistent with the other evidence of record, found to be credible. The Veteran is competent to state that he experienced tinnitus during and after service, and that he still has tinnitus. See Charles, 16 Vet. App. at 374. Though the Veteran's service treatment records are absent of any complaint, finding, or treatment for tinnitus, the Veteran consistently states that tinnitus began in service and that he has experienced tinnitus since service. Resolving reasonable doubt on this question, the Board finds that symptoms of tinnitus began during service and has continued since service, and the criteria for service connection for tinnitus have been met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for tinnitus is granted. REMAND A remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's claim. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). The Veteran has contended that service connection is warranted for bilateral hearing loss because he was exposed to loud noise in service. He has further asserted that his hearing loss began in service during his time on the shooting range. Service treatment records indicate that hearing was still within normal limits at service separation in 1962. The evidence does not show that the Veteran reported experiencing symptoms of hearing loss during service or for many years thereafter. A 1966 periodic examination which included audiometric testing showed a shift in hearing thresholds in both ears since service, although the thresholds were still within the normal range. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (where the Court cited to medical authority recognizing that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss). Although the Veteran did not experience symptoms of hearing loss during service or for many years after service, the Court has indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. Hensley, 5 Vet. App. at 155; see also 38 C.F.R. § 3.303(d) (service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service). In disability compensation (service connection) claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, no VA or private medical report is of record with opinions regarding whether the Veteran has a current hearing loss disability or whether any current hearing disability is related to service. Given the credible evidence of in-service loud noise exposure and the competent evidence of tinnitus that resulted from that noise exposure, the Board finds that the Veteran should be afforded a VA examination in order to assist in determining whether he has a current hearing loss disability, and, if so, to obtain an opinion as to whether any current hearing loss disability is related to the loud noise exposure in service. Accordingly, the issue of service connection for bilateral hearing loss is REMANDED for the following action: 1. Schedule the Veteran for a VA audiological examination that includes audiometric testing and speech recognition testing in order to ascertain and evaluate the current level of bilateral hearing loss. The relevant documents in the claims file should be reviewed by the VA examiner in connection with the examination. The examiner should report the extent of the Veteran's hearing loss disability in accordance with VA rating criteria. The examiner should specifically note and discuss the Veteran's in-service loud noise exposure. In assessing the relative likelihood as to origin and etiology of the current bilateral hearing loss, the examiner should express the following opinion: Is it as likely as not (i.e., to at least a 50-50 degree of probability) that the current bilateral hearing loss is causally or etiologically related to the noise exposure during service? The examiner should provide a rationale for any such conclusion set out in the report. Note: As used above, the term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 2. After completion of the above, the claim for service connection for bilateral hearing loss should be readjudicated in light of all the evidence of record. If the determination remains adverse to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case. An appropriate period of time should then be allowed for a response before the record is returned to the Board for further appellate consideration. The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of this claim. See 38 C.F.R. § 3.655 (2013). The Veteran 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 or by the Court 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). ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs