Citation Nr: 1341371 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 07-18 006 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran had active service from August 1963 to August 1967, including in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Veteran testified before the undersigned at a video conference Board hearing in September 2010; a transcript of that proceeding has been associated with the claims file. The issues of entitlement to service connection for bilateral hearing loss, tinnitus, and posttraumatic stress disorder (PTSD) previously were before the Board in October 2010, at which time they were remanded to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development. In October 2011, the RO granted service connection for PTSD. This is a full grant of benefits sought on appeal; thus, this issue is no longer in appellate status. See Grantham v. Brown, 114 F .3d 1156 (1997). Unfortunately, and although the Board regrets any additional delay, the issue of entitlement to service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED again to the RO/AMC. VA will notify the Veteran if further action is required on his part. FINDING OF FACT Resolving any reasonable doubt in the Veteran's favor, his current tinnitus began during active service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. Given the favorable disposition of the action here with respect to the Veteran's claim of service connection for tinnitus, which is not prejudicial to him, the Board need not assess VA's compliance with the VCAA with respect to this claim. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Laws and Regulations Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease; such diseases are listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Tinnitus is not among those chronic diseases listed under 38 C.F.R. § 3.309(a), however. 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) (2013). In adjudicating the claims, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Under 38 C.F.R. § 3.159(a)(2)(2013), competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. Id. In Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), the Federal Circuit reiterated that under 38 U.S.C.A. § 1154(a) VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for benefits. Citing Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit stated that under § 1154(a) 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, 492 F.3d at 1377. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Factual Background The Veteran contends that his tinnitus is related to acoustic trauma sustained in-service. He specifically asserts that he was exposed to excessive aircraft noise on the flight line as well as some combat-related noise, e.g., mortars/rockets while serving in the Air Force. The Veteran's active service included service in the Republic of Vietnam. His military occupational specialty was as a parachute rigger. Service treatment records confirm that Veteran "seldom or never" wore hearing protection and that he suffered from occasional tinnitus following exposure to noise. Post-service records include reports of periodic tinnitus since service upon VA audiometric examination in January 2005. At that time, he gave a history of in-service exposure to noise from being on the flight line (aircraft engines) and serving as a parachute rigger. The VA examiner opined that the Veteran's tinnitus was not likely related to military noise exposure. Additional VA audiometric evaluation in June 2006 likewise reflected complaints of periodic tinnitus since service. At that time, he reported being exposed to excessive noise from jet engines without the use of hearing protection in-service. He also reported that he was a truck driver for 30 years following service, and that he used hearing protection in that capacity. The VA examiner provided an opinion that tinnitus was not due to military acoustic trauma. The Veteran testified before the undersigned in September 2010 and reported a history of tinnitus since working on the flight line in-service. Most recently, a November 2010 VA audiometric evaluation report reflected complaints of tinnitus. In a January 2011 VA addendum opinion, the Veteran reported that his bilateral tinnitus started in the military. The examiner opined that tinnitus was not due to military noise exposure and that no reports of tinnitus had been located in the Veteran's claims file. Analysis The Board finds that the evidence supports granting the Veteran's claim of service connection for tinnitus. The Board acknowledges initially that several VA examiners have determined that the Veteran's tinnitus was not likely related to noise exposure in-service. Having reviewed the record evidence, the Board affords little, if any, probative value to the negative nexus opinions concerning the contended etiological relationship between the Veteran's tinnitus and active service. The Veterans Court has held that, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The January 2005 VA examiner provided no rationale for her negative nexus opinion. The lack of any rationale for the January 2005 opinion concerning the contended causal relationship between the Veteran's tinnitus and active service frustrates the Board's review because it does not permit the Board to weigh this evidence against other evidence of record. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Thus, the Board finds that the January 2005 VA examination report is inadequate for VA compensation purposes. The June 2006 and November 2010 VA examiners relied on the absence of in-service complaints of tinnitus as rationale for their negative nexus opinions concerning the contended causal relationship between the Veteran's tinnitus and active service. The Board notes that the Veterans Court has held that the lack of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr, 21 Vet. App. at 303 ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). Because the rationale provided following VA examinations in June 2006 and November 2010 appears to violate the Court's holdings in Buchanan and Barr, the Board also finds these examination reports to be inadequate for VA compensation purposes. The Board further finds it significant that a review of the January 2005, June 2006, and November 2010 VA examination reports shows that none of these examiners acknowledged or otherwise discussed the documented in-service diagnosis/complaints of tinnitus in the Veteran's service treatment records. This persuasively suggests that these opinions of record are entitled to little probative value. The Veteran is competent to state that he has had ringing in his ears since he was exposed to acoustic trauma as parachute rigger on the flight line in-service. See Jandreau, 492 F.3d at 1377. The Veteran's statements concerning his in-service noise exposure are considered credible because they are consistent with the facts and circumstances of his active service as a parachute rigger. See Caluza, 7 Vet. App. at 498. The Veteran's statements regarding his in-service noise exposure also are not internally contradictory and are not refuted elsewhere in the record. In this case, the Veteran's available service treatment records expressly document complaints/diagnoses of tinnitus following noise exposure in October 1964. The evidence also shows that the Veteran has been diagnosed as having tinnitus which he attributes to active service. The opinions of record concerning the contended etiological relationship between the Veteran's tinnitus and active service have been found to be of little probative value. In summary, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that the evidence supports granting the Veteran's claim of service connection for tinnitus. ORDER Entitlement to service connection for tinnitus is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND The Veteran also contends that he incurred bilateral hearing loss during active service. The Veteran was afforded a VA examination to assess the etiology of his claimed bilateral hearing loss in November 2010 and an addendum to this report was provided in January 2011. Unfortunately, a review of the November 2010 VA examination report and January 2011 addendum indicates that this evidence is inadequate for VA compensation purposes. See Barr, 21 Vet. App. at 312. Specifically, the November 2010 VA examiner found support for her negative nexus opinion concerning the contended etiological relationship between the Veteran's bilateral hearing loss and active service in the presence of normal hearing thresholds during active service. The Veterans Court has held that this is an insufficient basis for an opinion. See Buchanan, 451 F.3d at 1337, and Barr, 21 Vet. App. at 312; see also Hensley v. Brown, 5 Vet. App. 155, 159 (1993), and Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of current hearing loss and medically sound reasoning for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley, 5 Vet. App. at 159. Before the Board can rely on an examiner's conclusion that a claimed disability is not related to active service, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence. See Stefl, 21 Vet. App. at 124. Furthermore, VA must ensure that any medical opinion is "based on sufficient facts or data." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2009). Therefore, it must be clear from either the examiner's statements or the Board's decision that the examiner has considered "all procurable and assembled data" by obtaining all tests and records that might reasonably illuminate the medical analysis. See Daves v. Nicholson, 21 Vet. App. 46 (2007). When the record leaves this issue in doubt, it is the Board's duty to remand for further development. The November 2010 VA examiner did not explain the basis for her negative nexus opinion concerning the contended etiological relationship between bilateral hearing loss and active service. Nor is it clear from a review of this examination report that it is "based on sufficient facts or data." See Nieves-Rodriguez, 22 Vet. App. at 295. Given the foregoing, and especially in light of the length of time which has elapsed since the November 2010 VA examination, the Board finds that, on remand, the Veteran should be provided with another examination to determine the nature and etiology of his bilateral hearing loss that includes a sufficient rationale. The RO/AMC also should attempt to obtain the Veteran's up-to-date VA and private treatment records. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and/or his service representative and ask him to identify all VA and non-VA clinicians who have treated him for bilateral hearing loss since his service separation. Obtain all VA treatment records which have not been obtained already. Once signed releases are received from the Veteran, obtain all private treatment records which have not been obtained already. A copy of any records obtained, to include a negative reply, should be included in the claims file. 2. Schedule the Veteran for appropriate VA examination to determine the nature and etiology of his bilateral hearing loss. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, if possible. Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that bilateral hearing loss, if diagnosed, is related to active service or any incident of service, to include the October 1964 notation of noise exposure in the Veteran's service treatment records. A complete rationale must be provided for any opinions expressed. If any requested opinion cannot be provided without resorting to speculation, then the examiner should explain why. The examiner is advised that the Veteran contends that he incurred bilateral hearing loss during active service, including as a result of in-service noise exposure while working as a parachute rigger on the flight line in Vietnam. The examiner also is advised that the Veteran's service personnel records confirm that he was a parachute rigger in Vietnam. The examiner is advised further that the Veteran's service personnel records note noise exposure in October 1964. The Board emphasizes that that the lack of in-service complaints of or treatment for bilateral hearing loss is not persuasive evidence that such did not occur during active service and such finding is insufficient rationale for an opinion. 3. The Veteran should be given adequate notice of the requested examination which includes advising him of the consequences of his failure to report to the examination. If he fails to report to the examination, then this fact should be noted in the claims file and a copy of the scheduling of examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims file. 4. Review all evidence received since the last prior adjudication and readjudicate the Veteran's claim. If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran and his service representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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. 2013). ______________________________________________ MICHAEL T. OSBORNE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs