Citation Nr: 1527492	
Decision Date: 06/26/15    Archive Date: 07/07/15

DOCKET NO.  14-29 814	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUES

1.  Entitlement to service connection for tinnitus.  

2.  Entitlement to service connection for left ear hearing loss.  



REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs



ATTORNEY FOR THE BOARD

A. Bordewyk




INTRODUCTION

The Veteran served on active duty from October 1960 to October 1962.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey.

Although the Veteran requested a hearing before the Board in an August 2014 VA Form 9, that request was withdrawn in January 2015.  

This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system.  Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.

The RO's July 2013 rating decision also denied service connection for right ear hearing loss and a concussion.  It appeared from the Veteran's "initial" notice of disagreement that he was disagreeing with the denials of service connection for bilateral hearing loss, tinnitus, and concussion.  Subsequently, however, the Veteran clarified that he was not seeking service connection for right ear hearing loss.  He also noted that he was not seeking service connection for concussion; he was merely describing the concussive blast that caused his hearing loss and tinnitus.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2) (West 2014).

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




FINDING OF FACT

The evidence demonstrates that the Veteran incurred tinnitus as a result of in-service noise exposure.  


CONCLUSIONS OF LAW

The criteria for service connection for tinnitus have been met.  38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

As the Board is granting service connection for tinnitus and left ear hearing loss, the issues on appeal is substantiated, and there are no further duties to notify or assist with regard to either issue.  Wensch v. Principi, 15 Vet. App. 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004).

The Veteran contends that he incurred tinnitus as a result of in-service noise exposure from his service as a fire fighter at an artillery range.  His Armed Forces of the United States Report of Transfer or Discharge (DD Form 214) confirms his training and service as a fire fighter and his expert badge with a sharpshooter rifle.  

Service treatment records are negative for any treatment or diagnosis of tinnitus.  On an August 1962 report of medical history, the box indicating the presence of ear, nose and throat trouble was marked, although further explanation was not provided.  

In a September 2013 statement attached to a notice of disagreement, the Veteran asserted that he began to experience tinnitus during service as a result of his-service noise exposure.  He stated that initially, the tinnitus went away by morning; however, after about 30 days, it had become constant and has continued since.  The Veteran stated that he attempted to seek medical treatment at that point, but was turned away by his superior.  He did not seek further treatment or benefits from VA post-service because he was under the impression that such a disability had to be combat-related.  Once he was told that that was not the case, he filed the current claim.  

Lay evidence may be competent on a variety of matters concerning the nature and cause of disability.  Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  The general principle that acoustic trauma may lead to chronic disability, including tinnitus, is commonly known and, therefore, the Veteran's testimony has some tendency to make a nexus more likely than it would be without such an assertion.  

The Board finds the Veteran is competent to report such noise exposure and finds his statements regarding the in-service noise exposure to be credible and consistent with the circumstances of his service.  See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus is capable of lay observation).  In addition, he is competent to report when the ringing or buzzing in his ears began and the Board finds his statements regarding the onset of such symptoms in service to be credible.  

Although a VA examiner provided a negative etiology opinion in a June 2013 report, that opinion did not consider the Veteran's statements regarding the onset of tinnitus during service.  Instead, the examiner relied on the lack of treatment or diagnosis of tinnitus during service and 2004 private treatment records in which the Veteran reported that "waterfall type" tinnitus had only begun recently in providing the negative opinion.  The United States Court of Appeals for Veterans Claims (Court) has held that a medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination).  Dalton v. Peake, 21 Vet. App. 23 (2007).

Therefore, given the Veteran's competent and credible statements and resolving all doubt in the Veteran's favor, the Board finds that service connection for tinnitus is warranted. 


ORDER

Service connection for tinnitus is granted.  


REMAND

The June 2013 VA examiner did not consider the Veteran's statements regarding the onset of hearing loss, particularly in the left ear, during service as a result of in-service noise exposure.  As such, a new VA opinion must be obtained.  

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Provide the Veteran with a new VA audiology examination with a qualified examiner to determine whether any current left ear hearing loss disability is related to service.  

The claims folder, including this remand and any relevant records contained in the virtual systems, must be sent to the examiner for review. 

The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the current left ear hearing loss disability had onset in service or is otherwise related to a disease or injury in service, including the conceded acoustic trauma.  

The examiner must provide a rationale for any opinion, taking into account the Veteran's reported history and current symptoms.  If the examiner discounts the Veteran's reports, he or she should provide a reason for doing so.

If the examiner cannot provide an opinion without resort to speculation, the examiner must provide a reason why this is so, and must state whether there is additional evidence that would permit the opinion to be rendered.

2.  After completion of all requested and necessary development, the AOJ should review the record in light of the new evidence obtained.  If service connection for left ear hearing loss remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case.  Once they are afforded an opportunity to respond, the claim should be returned to the Board for appellate review.

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 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).



______________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs