Citation Nr: 1519917	
Decision Date: 05/08/15    Archive Date: 05/19/15

DOCKET NO.  13-27 967	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to service connection for a bilateral hearing loss disability.

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

R. R. Watkins, Associate Counsel





INTRODUCTION

The Veteran served on active duty from May 1971 to December 1974. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  

Records in the Virtual VA paperless claims processing system (Virtual VA) and the Veterans Benefits Management System (VBMS) have been reviewed and considered.  

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


FINDING OF FACT

Tinnitus manifested in service and is related to service.


CONCLUSION OF LAW

Tinnitus was incurred in service.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

To the extent the action taken herein below is favorable to the Veteran, further discussion of the VCAA is not necessary at this time.


A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service.  38 U.S.C.A. § 1110.  

Generally, to provide service connection, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim.  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service.  This may be accomplished by affirmatively showing inception or aggravation during service.  38 C.F.R. § 3.303(a). 

For a veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for organic disease of the nervous system, if the disability is manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. § 1101, 1112, 1113; 38 C.F.R. 
§§ 3.307, 3.309.  

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, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  

Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Service connection may also be granted for a disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service.  38 C.F.R. § 3.303(d). 

In the May 2012 notice of disagreement, the Veteran's representative stated that the Veteran developed tinnitus in-service and that it had worsened over the last few years.  The Veteran's military occupational specialty (MOS) was a security specialist.  In his October 2008 claim, the Veteran stated that he guarded active air strips and was exposed to acoustic trauma while in service.  

In June 2011, the Veteran was afford a VA audiological examination to determine the nature and etiology of his claimed tinnitus.  The VA examiner opined that the Veteran's tinnitus was less likely than not caused by or a result of service and elaborated that he had begun to experience symptoms three years prior to the examination.

In a letter dated October 2011, Dr. J. H. stated that he had treated the Veteran for hearing loss and tinnitus over the past 3 years.  He opined that the Veteran had chronic hearing loss and tinnitus that disrupted effective communication, and that the likely genesis was from noise exposure during military service.

The Veteran's lay statements regarding experiencing tinnitus, the date of onset, and implications that tinnitus has continued since service, constitute competent evidence in support of the claim.  Charles v. Principi, 16 Vet. App. 370 (2002).  Although the June 2011 VA audiology opinion concluded that the Veteran's tinnitus was less likely than not caused by or a result of service, the Board finds the opinion inadequate as it bases its rationale on an inaccurate factual premise that the Veteran had begun to experience symptoms three years prior to the examination.  In the May 2012 notice of disagreement, the Veteran's representative clarified that he had experienced tinnitus in service and that it had worsened over the last few years.  Additionally, the Veteran's statements are supported by the opinion of Dr. J. H., the Veteran's treating physician.  

As the weight of the evidence reflects that the Veteran experienced tinnitus in service, he has been diagnosed as having current tinnitus, and his tinnitus has continued since service, service connection for tinnitus is warranted.  38 U.S.C.A. § 1110.


ORDER

Service connection for tinnitus is granted.


REMAND

The claims file currently contains a private audiological examination dated in February 2008 from St. Anthony's Medical Center.  The results are displayed in graphical form that have not been converted to an appropriate numerical form.  The United States Court of Appeals for Veterans Claims (Court) has held that interpretation of a graphical audiogram is a finding of fact, to be made by the Board in the first instance.  Kelly v. Brown, 7 Vet. App. 471 (1995).  If the Board is unable to interpret the graphical audiogram due to unclear results or several possible interpretations, then the Board must remand the results for translation by an appropriate specialist.  Id.  Here, the Board finds that the graphical representation is unclear and may have several possible interpretations.  Thus, the Board is unable to interpret the graph and further medical inquiry is necessary for a proper finding of fact to be rendered.  
Accordingly, the case is REMANDED for the following actions:

1.  With respect to the February 2008 private audiological report from St. Anthony's Medical Center that is currently in graphical format, the AOJ should contact the Veteran and obtain the appropriate release form, including contact information, authorizing VA to request records from St. Anthony's Medical Center. 

2.  After obtaining the necessary authorization, the AOJ should contact St. Anthony's Medical Center and inquire as to whether the February 2008 audiological examination (which is in graphical format) was conducted by a state-licensed audiologist.  

The AOJ should also ask that the medical provider to translate the graphical displays of the audiogram test results contained in the February 2008 private audiological examination to an appropriate numerical form.  Specifically, the private provider should be asked to provide a specific breakdown of the puretone threshold average for each ear at the four frequencies (1,000, 2,000, 3,000 and 4,000 Hertz).  All records and/or responses received should be associated with the claims file.

If no response is received from the private provider, the Veteran should be informed in a letter of this fact.

3.  Following the development set forth in paragraphs 1 and 2.  Schedule the Veteran for a VA audiological examination to determine the nature and etiology of his claimed bilateral hearing loss disability

The Veteran's claims folder should be reviewed by the examiner in conjunction with the examination.  The examiner is asked to address whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's bilateral hearing loss disability was incurred during active service.  

In rendering the opinion, the examiner is asked to consider the February 2008 audiogram from St. Anthony's Medical Center and the October 2011 letter from Dr. J. H. of Sound Health Service, P.C.  
	
The examiner is asked to provide a rationale for the opinions rendered.  If the examiner is unable to provide a rationale he or she should explain why.

4.  After the above actions have been completed, readjudicate the Veteran's claim.  If the claim remains denied, issue to the Veteran and his representative a supplemental statement of the case.

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 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).




______________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs