Citation Nr: 1340223 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 13-11 894 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an initial compensable evaluation for the service-connected bilateral hearing loss disability. 2. Entitlement to service-connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran, Witness ATTORNEY FOR THE BOARD A. VanValkenburg, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1951 to November 1955. These matters comes before the Board of Veterans' Appeals (Board) on appeal from the September 2012 decision by the Louisville, Kentucky, Regional Office (RO) of the United States Department of Veteran Affairs (VA), which denied service connection for tinnitus and granted a noncompensable rating for bilateral hearing loss disability. The Veteran testified at a video conference hearing in front of the undersigned Veteran's Law Judge (VLJ) in November 2013. A transcript of the hearing is associated with the claims file. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure complete review of the evidence of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of bilateral hearing loss is being remanded 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 Resolving doubt in favor of the Veteran, bilateral tinnitus was incurred in service. CONCLUSION OF LAW Service connection for tinnitus is warranted. 38 U.S.C.A. § 1110, 1111, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.012, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The VCAA describes VA's duties to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In light of the favorable decision herein as to the tinnitus issue on appeal, the Board finds that any deficiencies in notice were not prejudicial to the Veteran. The Veteran contends he has tinnitus caused by his active duty military service. In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus or relationship between the two. As an initial matter, the record shows the Veteran a current diagnosis of tinnitus. See VA contract examination received March 2013. The Veteran's military occupational specialty (MOS) was a damage controlman. See DD-214. The Veteran claims exposure to loud gun fire, power equipment, and engine noise occurred while aboard a destroyer ship during the Korean War. The Board notes the Veteran's in-service exposure to noise is consistent with his circumstances of service and the Board has no reason to doubt the Veteran's credibility. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (noting a Veteran is competent to testify as to his own observable symptomatology and in-service experiences). A review of the record leads the Board to conclude that service connection for tinnitus is warranted. Several VA contract nexus opinions were provided regarding tinnitus based on examinations from May 2012, with an August 2012 addendum, and February 2013. Both examiners opined the issue of tinnitus could not be resolved without resorting to mere speculation. During both examinations, the Veteran indicated the tinnitus began "after service" but could not further specify when the tinnitus onset. The examiners noted the service treatment records had no mention of tinnitus complaints. The February 2013 examiner noted the Veteran's medical history included high blood pressure, dizziness/vertigo, and ear infections which could also contribute to periodic tinnitus. The service treatment records do not contain any subjective complaints of tinnitus, nor do they express any objective findings of tinnitus. Nonetheless, there is no actual negative evidence in the record that contradicts the Veteran's assertions of tinnitus. Although the Veteran has struggled to identify the onset of his tinnitus during VA examinations, he has indicated that he recalls it being present for almost his entire adult life, which would place its onset either in service or in very close proximity to service. For this reason, and given the subjective nature of tinnitus and that the Veteran is understandably struggling to recall events from many decades ago, the Board finds that the Veteran's lay contentions are sufficient to place the evidence at least in equipoise. Accordingly, the benefit of the doubt rule applies and service connection for tinnitus is warranted. ORDER Entitlement to service-connection for tinnitus is granted. REMAND The Veteran essentially asserts that his VA audiological examinations have not accurately reflected the current severity of his service-connected hearing loss. The Veteran was afforded audiological examinations in May 2012 and February 2013. The February 2013 examiner indicated there was no significant change in thresholds since the last May 2012 VA examination. However, as the Veteran's representative highlighted during the 2013 VLJ hearing, the audiometric findings appear to be inconsistent. Audiometric findings noted an improvement in the Veteran's right ear hearing decibels between 3000 and 4000 hertz from 2012 to 2013. Due to the inconsistent findings between examinations, the Board finds a new examination is needed to evaluate the nature and extent of the Veteran's current hearing loss disability. The Veteran identified updated treatment records from the VA in Ashland, Kentucky and Huntington VAMC. See VA Form 9 April 2013. Where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by claimant were, "in contemplation of law, before the Secretary and the Board and should be included in the record"). An attempt should be made to associate these records with the Veteran's claims folder. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. Obtain any outstanding VA treatment records with the claims file to include records from Ashland, Kentucky and Huntington VAMC. If the search efforts produce negative results, the claims file should be so documented. 2. Schedule the Veteran for an appropriate VA examination of the Veteran for evaluation of the current severity of his bilateral hearing loss. The claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All indicated tests and studies, including controlled Maryland CNC speech discrimination test and a puretone audiometry test, should be conducted, and the reports should be incorporated into the examination report. A complete rationale should be given for all opinions and conclusions expressed. 3. Upon completion of the above requested development and any additional development deemed appropriate, readjudicate the issue of entitlement to service connection for a bilateral hearing loss disability. All applicable laws and regulations should be considered. If the benefit sought on appeal remains denied, the Veteran and her representative should be provided with a supplemental statement of the case (SSOC). 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 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). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs