Citation Nr: 1511953	
Decision Date: 03/20/15    Archive Date: 04/01/15

DOCKET NO.  12-33 518	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1.  Entitlement to service connection for tinnitus.

2.  Entitlement to service connection for bilateral hearing loss.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A. Barbier, Associate Counsel



INTRODUCTION

The Veteran served on active duty from August 1968 to August 1971.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.  

The Board notes that, in addition to the paper claims file, the Veteran also has electronic Virtual VA and Veterans Benefits Management System (VBMS) paperless claims files.  A review of the documents in Virtual VA and VBMS reveals that, with the exception of the Veteran's representative's March 2015 Appellate Brief in VBMS, the remainder of the documents are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal.  

The issue of service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

The evidence indicates the Veteran's tinnitus has existed since service.  


CONCLUSION OF LAW

Resolving any reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus have been met.  38 U.S.C.A. §§ 101, 1101, 1112, 1113, 1131, 5103, 5103A, 5107 (West. 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 111; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167   (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).  For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).  

The Board further notes that in a recent decision, the Court of Appeals for Veterans Claims held that tinnitus is to be considered an organic disease of the nervous system for purposes of 38 C.F.R. § 3.309(a).  Fountain v. McDonald, No. 13-0540 (Feb. 9, 2015).  In this regard, certain diseases shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post service (10 percent and one year, respectively, for organic diseases of the nervous system), even though there is no evidence of such diseases during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).  

With chronic disease shown as such in service (or within the presumptive period under 38 C.F.R. § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes.  Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned.  When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b).  

The United States Court of Appeals for the Federal Circuit recently clarified that the provisions of 38 C.F.R. § 3.303(b), pertaining to the award of service connection on the award of service connection on the basis of continuity of symptomatology, apply to chronic diseases as defined in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness. See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2). 

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. 

Furthermore, although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

The Veteran contends that he experiences tinnitus as a result of noise exposure while working as a heavy equipment operator on a regular basis without hearing protection.  In his September 2010 claim, the Veteran reported that he has suffered from tinnitus, in the form of a constant high-pitched whine, since leaving the Army.  The May 2011 VA examiner noted the Veteran's report of constant tinnitus and his reports that it had been present for a long time, including at discharge from service.  

The VA examiner noted that the Veteran was not able to provide specific dates or circumstance regarding the onset of tinnitus, though the Veteran reported that he thought it began in the early 1970s.  The examiner reported the Veteran seemed unsure of exact onset.  The examiner noted that the Veteran's service treatment records supported military noise exposure from heavy equipment, rifle fire, mortars, and artillery.  The examiner further noted post-service occupational and recreational noise exposure.  The examiner opined that due to the ambiguous response provided by the Veteran as to onset of tinnitus, conflicting documentation of tinnitus being unilateral or bilateral, and the history of military and post-military noise exposure, the etiology of the Veteran's tinnitus could not be resolved without resorting to mere speculation.  Subsequently, the Veteran noted in his September 2011 notice of disagreement that he continued to report that his tinnitus began in the "early 70s," which is consistent with his discharge from service in 1971.  

The Board finds that the VA examiner's opinion is of little probative value, as it lacks adequate rationale for a speculative opinion as to the etiology of the Veteran's tinnitus.  

A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses. 38 C.F.R. § 3.159 (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 facts or circumstances and conveys matters that can be observed and described by a lay person); Layno, 6 Vet. App. at 469-71 (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation).  

The Board finds no significant evidence contradicting the Veteran's account of in-service acoustic trauma and associated tinnitus since his discharge from service.  The Veteran consistently reported that his tinnitus began in the early 1970s, near the time of discharge from service.  Thus, in light of the credibility of the Veteran's statements and the provisions of 38 C.F.R. §§ 3.307, 3.309(a), the Board finds that evidence of record reasonably demonstrates the occurrence of in-service acoustic trauma and the existence of tinnitus symptoms since discharge from service.  VA's notice and assistance requirements need not be discussed here as any error in that regard is harmless as this is a full grant of the benefits sought on appeal.  


ORDER

Service connection for tinnitus is granted.  


REMAND

The Board finds that additional evidentiary development is necessary before it can adjudicate the Veteran's claim for service connection for bilateral hearing loss.  

The Board initially finds that remand is necessary to obtain VA treatment records.  In this regard, the May 2011 VA examiner noted an audiological examination conducted by VA in December 2010.  To date, VA treatment records have not been associated with the claims file.  

Additionally, the May 2011 VA examiner opined that the Veteran's right ear hearing loss was not caused by or the result of service acoustic trauma, due to preexisting hearing loss noted on the Veteran's entrance into service.  As for the left ear, the VA examiner noted that an opinion could not be offered without resorting to mere speculation.  In this regard, the examiner noted that audiological results on medical examinations both at enlistment and discharge from service appeared to be invalid.  The examiner noted that because of this, no comparison of hearing sensitivity can be made from enlistment to separation.  However, the examiner conceded that the Veteran did have a military occupational specialty that likely exposed him to hazardous levels of noise.  

The Board finds that the VA examiner's opinion is inadequate.  In this regard, the VA examiner did not address whether the Veteran's military service caused the Veteran's right ear hearing loss noted at entrance into service to worsen.  Furthermore, the VA examiner did not provide an adequate rationale to support the conclusion that an opinion with respect to the Veteran's left ear hearing loss could not be provided without resorting to mere speculation.  Thus, remand is warranted.  

Accordingly, the case is REMANDED for the following action:

1.  Associate with the claims file relevant records of Veteran's treatment within the appropriate VA Health Care system, to include an audiological examination in December 2010.  

2.  After the above development has been completed and all obtainable records have been associated with the claims file, schedule the Veteran for a new audiological examination.  The examiner must interview the Veteran as to the history of his hearing loss and the onset of his symptoms.  The claims file must be provided to the examiner, the examiner must review the claims file in conjunction with the examination, and the examiner must discuss the relevant contents of the claims file as well as the relevant statements provided by the Veteran.  

(A)  With respect to the Veteran's right ear, the examiner must opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's preexisting right ear hearing loss, noted on enlistment examination, increased in severity during his period of active service.  

(B)  If it is determined that the right ear hearing loss did increase in severity during service, the examiner should opine as to whether such increase was clearly and unmistakably due to the natural progress of the disability.  

(C)  With respect to the Veteran's left ear, the examiner must opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such was incurred in or is related to the Veteran's military service, to include noise exposure due to the Veteran's military occupational specialty, artillery, mortars, and gunfire.  

The examiner must consider the statements from the Veteran regarding his noise exposure.  The examiner must provide a rationale for any opinion offered.  

3.  After the above development is completed, re-adjudicate the claims.  If the benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto before returning the matter to this Board, if in order.  

The appellant 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 2014).



______________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs