Citation Nr: 1527382 Decision Date: 06/26/15 Archive Date: 07/07/15 DOCKET NO. 14-04 071 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran served on active duty for seven days in June 1969, and had additional active duty service from June 1969 to January 1972 and from March 2003 to October 2003. He was also a member of the Army National Guard from February 1994 to June 2009. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In May 2015, the Veteran testified before the undersigned Veterans Law Judge during a hearing held at the RO. A transcript of the hearing is included in the record. The record before the Board consists solely of electronic records included in Virtual VA and the Veterans Benefits Management System. The issue of entitlement to service connection for bilateral hearing loss disability is addressed in the REMAND that follows the ORDER section of the decision below. FINDING OF FACT The Veteran's tinnitus originated during his active service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.3.04 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As explained below, the Board has determined that the evidence currently of record is sufficient to substantiate the Veteran's claim for service connection for tinnitus. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A or 38 C.F.R. § 3.159. Legal Criteria Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Veteran contends that he has tinnitus as the result of noise exposure during service. Service personnel records from the Veteran's period of active duty from 1969 to 1972 reflect that he served as a helicopter repairman and had service in Vietnam. Additional records from his second period of active duty and his service in the National Guard indicate that he also served as a track vehicle repairman and construction equipment repairman. He described noise exposure during his service in Vietnam from turbine engines and helicopters, as well as during his other periods of service while working on equipment such as tanks and weed eaters. The Board finds that noise exposure is consistent with the types, places and circumstances of his service, and exposure to in-service acoustic trauma is conceded. The question that remains is whether he has tinnitus related to that in-service noise exposure. Service treatment records from the Veteran's first period of active duty service do not document any evidence of tinnitus or ringing in the ears. Records from his National Guard service show that he was given a permanent physical profile for high frequency hearing loss beginning in March 1995 and that his hearing was routinely assessed as part of a hearing conversation program. A March 2003 Hearing Conservation Data form completed during his second period of active duty includes a notation that the Veteran was routinely noise expose. On a September 2003 post-deployment health assessment, the Veteran reported having been exposed to loud noises and that he experienced ringing of his ears. He reiterated this report on a November 2005 post-deployment health assessment completed during his National Guard service. In a June 2010 examination report, a VA examiner noted review of the Veteran's available service treatment records and his in-service reports of tinnitus. The examiner stated that it was not possible to provide an opinion that was not based on speculation regarding the relationship between the Veteran's tinnitus and his noise exposure during service because the audiograms from his first period of active duty were not available for review. During the May 2015 Travel Board hearing, the Veteran testified that he first notice ringing in his ears soon after returning home from a tour of duty in Vietnam. He stated that he has experienced ringing in his ears since the time of his active service. Following review of all of the evidence, the Board finds that the Veteran is entitled to service connection for tinnitus because the evidence satisfactorily establishes that the claimed disability originated during his active service. In reaching this decision, the Board notes that the Veteran's exposure to in-service acoustic trauma has been established. He has credibly stated that the onset of his tinnitus occurred in service and that the disorder has continued ever since. His assertions in this regard are bolstered by his service treatment records documenting his report of experiencing ringing of his ears while on active duty. Although the June 2010 examiner indicated an inability to provide a non-speculative opinion in this case without review of the audiograms from the Veteran's first period of active service, the examiner's conclusion does address the Veteran's credible report of tinnitus during his second period of active duty service. Thus, the June 2010 examination report has no probative weight with regard to this claim. ORDER Service connection for tinnitus is granted. REMAND The Veteran claims that his current bilateral hearing loss is due to his conceded in-service noise exposure. Review of the service treatment records indicate the presence of a hearing loss disability as defined by VA regulations for the right ear on the Veteran's March 1969 pre-induction examination for enlistment onto his first period of active duty. See 38 C.F.R. § 3.385 (providing the criteria for a hearing loss disability for purposes of service connection). These records do not show that he underwent audiometric testing at that time of his first separation from active duty. His bilateral hearing was normal on audiometric testing performed in September 1972 for his enlistment into his first period of National Guard service. However, records from the Veteran's later National Guard service show a bilateral hearing loss disability for VA purposes on his January 1994 enlistment examination and also show that he was given a permanent physical profile for hearing loss from March 1995. Subsequent service records dated during the Veteran's National Guard service and his second period of active duty further indicate the presence of a hearing loss disability. Although the Veteran was shown to have a current hearing loss disability during a June 2010 VA examination, the VA examiner was unable to provide an etiological opinion at that time because the service treatment records from the Veteran's first period of active duty were not available for review. No further attempts have been undertaken to obtain a medical opinion regarding whether the Veteran's hearing loss preexisted his first period of active duty, had its onset during service, or permanently worsened during his subsequent periods of service. Therefore, the Veteran must be afforded a new examination to determine whether his hearing loss is etiologically related to his military service. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Undertake appropriate action to obtain all outstanding VA and private medical records pertinent to the claim. 2. Then, the Veteran should be afforded a VA examination by an examiner with sufficient expertise to determine the etiology of the Veteran's bilateral hearing loss disability. All pertinent evidence of record must be made available to and reviewed by the examiner. The examiner must be provided with the Veteran's dates of active duty service and all verified dates of National Guard service, to include periods of active duty for training and inactive duty for training. Any indicated tests and studies are to be performed. The examiner is advised that the Veteran's exposure to acoustic trauma during service has been conceded. The examiner is asked to offer opinions as to the following questions: (a) Is there a 50 percent or better probability that the Veteran had chronic right ear hearing loss during his period of active duty from June 1969 to January 1972, and if so is there a 50 percent or better probability that the pre-existing right ear hearing loss permanently increased in severity during that period of service, and if so is the increase in severity during that period of service clearly and unmistakably due to natural progress? (b) If the examiner is of the opinion that chronic right ear hearing loss was not present during the period of active duty from June 1969 to January 1972, is there a 50 percent or better probability that the right ear hearing loss is etiologically related to that period of service? (c) If no, is there a 50 percent or better probability that the right ear hearing loss permanently increased in severity during any later period of active duty, active duty for training or inactive duty for training, and if so, is the increase in severity clearly and unmistakably due to natural progress. (d) Is there a 50 percent or better probability that the Veteran's left ear hearing loss is etiologically related to the period of active duty from June 1969 to January 1972, and if not, is there a 50 percent or better probability that the left ear hearing loss permanently increased in severity during any later period of active duty, active duty for training or inactive duty for training, and if so, is the increase in severity during service clearly and unmistakably due to natural progress? The rationale for all opinions expressed must also be provided. If the examiner is unable to provide a required opinion, he or she should explain why. 3. Undertake any additional development deemed necessary. 4. Then, readjudicate the claim for service connection for bilateral hearing loss disability. If the benefit sought on appeal is not granted to the Veteran's satisfaction, provide to the Veteran and his representative a Supplemental Statement of the Case and afford them the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs