Citation Nr: 1340797 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 11-30 356 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky THE ISSUES 1. Entitlement to a rating in excess of 10 percent for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a right leg disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran had active military service from July 1967 to October 1974. This appeal comes to the Board of Veterans' Appeals (Board) from a September 2010 rating decision. In reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his "Virtual VA" file to insure a total review of the evidence. The issue of an increased rating 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 evidence makes it at least as likely as not that the Veteran's tinnitus is the result of his military noise exposure. 2. The Veteran broke his right leg in service and continues to experience symptoms such as swelling in the right leg. CONCLUSIONS OF LAW 1. Criteria for service connection for tinnitus have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). 2. Criteria for service connection for a right leg disability have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Right Leg The Veteran is seeking service connection for a right leg disability as a result of a broken leg in service. Service treatment records confirm that in February 1967 the Veteran suffered a closed fracture of his right distal tibia and fibula with no nerve or artery involvement. He was hospitalized until July and then returned to active duty with a L3 temporary profile. At a Board hearing in May 2012, the Veteran testified that following the injury in service he had problems marching or standing for extended periods, and he stated that if he were to stand on concrete, even now, his right leg would swell up. Lay testimony is competent to establish the presence of observable symptomatology, such as swelling in an extremity, and may provide sufficient support for a claim of service connection. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). While the right leg fracture healed well (as noted both in the service treatment records and in the post-service treatment records), the evidence clearly documents a right leg injury in service, and the Veteran has credibly testified to right leg symptoms since that time (not in the sense that his right leg has been continually swollen, but in the sense that the swelling has recurred regularly). The Board acknowledges that the VA examinations that have been provided have not endorsed a specific right leg disability. In this regard, the Board in granting this appeal is not suggesting that a compensable rating is warranted as the residual symptoms do not appear to have required much, if any, medical treatment. Nevertheless, given the injury in service and the credible symptoms since that time, the Board believes that the criteria for service connection have indeed been met, and the Veteran's claim is therefore granted. Tinnitus In July 2010, the Veteran filed a claim seeking service connection for tinnitus. Service treatment records do not show any complaints of, or treatment for, ringing in the ears while in service, and there is no record of any post-service complaints of, or treatment for, ringing for multiple decades following service. In fact, even the VA treatment records which have been obtained fail to show any treatment for tinnitus. The Court of Appeals for Veterans Claims (Court) has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation, but the Veteran testified at a hearing before the Board that he was unclear when his tinnitus actually began. See Charles v. Principi, 16 Vet. App. 370 (2002). Nevertheless, there is no dispute that the Veteran was exposed to extensive amounts of loud noise in service, to the extent that he was given a hearing profile and is now service connected for bilateral hearing loss. The Veteran has been provided with two VA examinations during the course of his appeal. In September 2010, the examiner indicated that the Veteran's tinnitus was related to his bilateral hearing loss, which as noted is service connected. In May 2011, the examiner found that the Veteran's tinnitus was unrelated to his military noise exposure, because it did not begin until years after service. However, this opinion did not appear to consider the possibility that the Veteran's bilateral hearing loss caused the tinnitus, and service connection may be awarded when a disability is secondary to a service connected disability, even if it did not actually onset in service. Having reviewed the evidence of record in its entirety, the Board finds that neither opinion is more probative than the other, meaning that the evidence for and against the Veteran's claim is essentially in relative equipoise. In such a situation, VA regulations direct that reasonable doubt is to be resolved in the Veteran's favor. As such, service connection for tinnitus is granted. In light of this result, a detailed discussion of VA's various duties to notify and assist is unnecessary (because any potential failure of VA in fulfilling these duties is harmless error). ORDER Service connection for tinnitus is granted. Service connection for a right lower extremity disability is granted. REMAND At his hearing before the Board in June 2013, the Veteran testified essentially that his hearing had gotten worse, and the undersigned Veterans Law Judge indicated that a VA examination would be provided to assess the current nature and severity of his hearing disability. As such, another VA examination should be provided. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA audiological evaluation. 2. Then readjudicate the appeal. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 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. ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs