Citation Nr: 1400415	
Decision Date: 01/07/14    Archive Date: 01/23/14

DOCKET NO.  11-06 568	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service connection for headaches.


REPRESENTATION

Appellant represented by:	John P. Dorrity, Agent


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

W.T. Snyder, Counsel


INTRODUCTION

The Veteran served on active duty from November 1966 to October 1970.

This appeal to the Board of Veterans' Appeals (Board) arose from a May 2010 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Newark, New Jersey, that denied the benefits sought on appeal.

In July 2013, the Veteran appeared at a hearing before the undersigned at the RO.  A transcript of the hearing is associated with the Virtual claims file.

In additional to his paper claims file, the Veteran has a Virtual claims file, which is a highly secured paperless repository, associated with his appeal.

The issue of entitlement to service connection for headaches is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran if further action is required.


FINDINGS OF FACT

1.  Current hearing loss is the result of noise exposure in service.

2.  Tinnitus is the result of hearing loss.

CONCLUSIONS OF LAW

The criteria for service connection for tinnitus and hearing loss are met.  38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303, 3.310, 3.385 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service connection will be granted for disability resulting from an injury or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 

Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) 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). 

VA and private examinations show that the Veteran has current hearing loss as defined by VA.  38 C.F.R. § 3.385 (2013).  The VA examiner also found at the March 2010 examination that the Veteran had current tinnitus, which was secondary to the hearing loss. 

The VA examiner noted that the only reported noise exposure occurred during service when the Veteran served on flight lines.  The examiner noted that the Veteran had a hearing threshold shift in service, but opined that the shift was not consistent with noise exposure and could have been due factors such as improper headphone placement or congestion.  The examiner; therefore concluded that the current hearing loss was unrelated to service.  A private audiologist has opined that the Veteran's current hearing loss is due to noise exposure.

The VA examiner did not explicitly state the origins of the Veteran's hearing loss.  Hence, the opinion is of limited probative value.  The Board is left with the Veteran's testimony, history related to the VA examiner and opinion of the private audiologist, which all indicate that his current hearing loss is related to noise exposure and that the only noise exposure occurred in service.  The only opinion with regard to tinnitus is that it is secondary to the hearing loss.  

The evidence is in at least equipoise as to whether the current hearing loss is related to in-service noise exposure.  Resolving reasonable doubt in the Veteran's favor service connection for hearing loss is granted.  38 U.S.C.A. § 5107(b) (West 2002).  The evidence is all in favor of a finding that tinnitus is proximately due to hearing loss.  Hence service connection is granted for tinnitus as secondary to the service connected hearing loss.  38 C.F.R. § 3.310.


ORDER

Service connection for bilateral hearing loss is granted.

Service connection for tinnitus is granted.


REMAND

The Veteran's testimony triggers VA's duty to afford him an examination with regard to the headache claim.  38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2013).

Accordingly, the case is REMANDED for the following action:

The agency of original jurisdiction (AOJ) should arrange an examination to determine if the Veteran has a current headache disorder related to a disease or injury in service.  The claims file must be provided for review by the examiner as part of the examination.  

The examiner should opine as to whether there is at least a 50-percent probability that any headache disorder shown since 2009 had its onset in active service or is otherwise causally related to a disease or injury in service?

The examiner is advised that the Veteran is competent to report the onset and nature of his symptoms and these reports must be considered in rendering the requested opinions.  The examiner is further advised that the absence of medical documentation of treatment, standing alone, is not an adequate basis for a negative diagnosis or nexus opinion.  The examiner should provide a full explanation for any opinion rendered.

4.  Thereafter, the AOJ must review the claims file and ensure that the foregoing development actions, as well as any other development that may be in order, has been conducted and completed in full.

5.  If any decision remains adverse to the Veteran, issue a supplemental statement of the case (SSOC).

The case should thereafter be returned to the Board, if in order.  The Board intimates no opinion as to the ultimate outcome of this case.  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. 2012).

_________________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs