Citation Nr: 1509920 Decision Date: 03/10/15 Archive Date: 03/17/15 DOCKET NO. 13-09 355 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for low back pain with scoliosis. REPRESENTATION Appellant represented by: Robert Brown Jr., Attorney WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1990 to January 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In an April 1992 rating decision the RO denied the Veteran's original claim of entitlement to service connection for low back pain with scoliosis. The Veteran did not appeal that decision. The Veteran filed to reopen his claim for service connection for low back pain with scoliosis, and in the March 2012 rating decision on appeal, the RO denied the claim finding that new and material evidence sufficient to reopen the claim had not been submitted. In January 2012, the Veteran's service personnel records were associated with the claims file. Pursuant to 38 C.F.R. § 3.156(c), any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). Accordingly, the April 1992 rating decision is non-final and de novo review of the claim is warranted. The Board acknowledges that the Veteran has claimed that the April 1992 rating decision that denied his original claim for service connection for low back pain with scoliosis contains clear and unmistakable error (CUE). As the April 1992 rating decision has not become final, it cannot be challenged via a CUE motion, and the CUE issue is deemed moot. 38 C.F.R. § 3.105(a) (2014) (indicating that a finding of CUE applies to "previous determinations which are final and binding"). In August 2013, the Veteran and his spouse testified at a Videoconference hearing before the undersigned. A transcript of this hearing is of record. During the hearing, the Veteran submitted additional evidence accompanied by a waiver of initial RO consideration. This evidence will be considered by the Board in adjudicating this appeal. See 38 C.F.R. § 20.1304 (2014). In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed his electronic file on the Virtual VA and VBMS systems to ensure a complete assessment of the evidence. The issues of entitlement to service connection for bilateral hearing loss and low back pain with scoliosis are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, the evidence shows that tinnitus had its onset during service. CONCLUSION OF LAW Tinnitus was incurred in service. 38 U.S.C.A. §§ 1131, 1110, 1154(a), 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. 38 C.F.R. § 3.102 (2014); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that he has tinnitus related to his active service in the Air Force as he was exposed to loud noise from equipment and aircrafts for 12 hours a day while working on the flight line as an Apprentice Air Transportation Specialist. During a January 2013 private audiological evaluation, the audiologist diagnosed the Veteran with bilateral constant tinnitus. During the audiological evaluation and the August 2013 Videoconference hearing, he reported that he experienced constant tinnitus and that he first noticed tinnitus during service. As noted, the Veteran's military occupational specialty was an Apprentice Air Transportation Specialist. In addition, his service personnel records contain a Personal Data Report on Individual Personnel which indicates that the Veteran's duty title was an Import Freight Processor. Thus, the Board finds that the Veteran had at least some acoustic trauma during his service. The audiologist who conducted the private audiology evaluation in January 2013 diagnosed bilateral tinnitus. She documented the Veteran's history of in-service and post-service occupational noise exposure. After reviewing the Veteran's reported service history, she opined that it is at least as likely as not that his tinnitus was caused by his exposure to hazardous noise during service. She reasoned that excessive noise exposure to aircraft, particularly over extended periods of time, can result in the development of tinnitus. While the Veteran's service records are negative for complaints of tinnitus, he is nevertheless competent to report a history of tinnitus that began during his active service. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Moreover, tinnitus is a disorder that is readily observable by laypersons and does not require medical expertise to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). In light of the favorable nexus opinion of record and the Veteran's competent statements that tinnitus began while he was in the military and his service as an Apprentice Air Transportation Specialist, the Board finds that his tinnitus had its onset during service. After resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted. ORDER Entitlement to service connection for tinnitus is granted. REMAND The Veteran's claim for service connection for low back pain with scoliosis was denied by the RO in April 1992 in an unappealed decision. In the March 2012 rating decision on appeal and in the March 2013 statement of the case, the RO declined to reopen the previously denied claim, finding that new and material evidence had not been received. However, as noted above, the record reflects that subsequent to the April 1992 prior final denial, service personnel records not previously associated with the claims file but that existed when the claim was first decided, were associated with the claims file. Thus, the claim should be reconsidered de novo, and there is no requirement to first consider whether there is new and material evidence to reopen. 38 C.F.R. § 3.156(c). Thus, the Veteran's claim for service connection for low back pain with scoliosis must be remanded to the RO for consideration on its underlying merits instead of as a petition to reopen. See Hickson, 23 Vet. App. 394 (where the Board reopens a claim, but the RO did not, the claim must be remanded for RO consideration unless there is a waiver from the appellant or no prejudice would result from the Board's immediate readjudication of the claim). As to the claim for service connection for bilateral hearing loss, the Veteran contends that he has a current bilateral hearing loss disability that had onset during his active military service and that is due to his military noise exposure to aircraft engines for 12 hours a day while working on the flight line as an Apprentice Air Transportation Specialist. During the August 2013 Videoconference hearing, he reported that he experienced "muffled hearing" every night after working his daily 12 hour shift in close proximity to loud aircraft engines. He and his wife testified that he has difficulty hearing conversational speech, especially in the presence of background noise, as well as difficulty hearing the TV. The medical evidence currently of record does not demonstrate hearing loss in either ear as defined by VA regulation. However, given that the Veteran's hearing was most recently evaluated during a private audiologic evaluation in January 2013, more than 2 years ago, and his and his spouse's testimony pertaining to his increasing difficulty in hearing and understanding conversational speech, the Board finds that he should be provided a VA audiologic examination to determine if he currently has a hearing loss disability as defined by VA regulation, and if so, whether such disability is related to any incident of his military service, to include his military noise exposure therein. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran an opportunity to identify and submit any outstanding, relevant VA and non-VA records pertaining to his claimed back and hearing loss disabilities. Provide the Veteran with the appropriate authorization for release form(s). Obtain all identified records and associate any records with the claims file for review. For any outstanding private treatment records identified and authorized by the Veteran, make at least two (2) attempts to obtain such records. All attempts made must be documented in the claims file, to include the unavailability of any identified records. For any identified records that are not obtained, notify the Veteran and his attorney of such and provide them with an opportunity to submit those records directly. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service hearing loss and low back symptoms. He should be provided an appropriate amount of time to submit this evidence. 3. After the above development has been completed to the extent possible, schedule the Veteran for a VA audiological examination with an appropriate medical professional to determine if a current hearing loss disability is present in one or both ears. The examiner should elicit a history of the claimed hearing loss disability, to include his service and post-service history of occupational and recreational noise exposure from the Veteran, which should be documented in the examination report. The examiner must also review the Veteran's claims file and contentions of record, in conjunction with the examination. Puretone audiometric testing and Maryland CNC word discrimination testing should be conducted, and all findings should be reported in detail. If a hearing loss disability is diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that such disability had its onset in service or is otherwise etiologically related to service. A full explanation should accompany any opinion expressed. 4. Finally, readjudicate the Veteran's claims for service connection for low back pain with scoliosis (de novo) and bilateral hearing loss. If any benefit sought remains denied, issue the Veteran and his attorney a supplemental statement of the case and allow for an appropriate period of time for response before returning the case to the Board. The appellant has the right to submit additional evidence and argument on the 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 2014). ______________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs