Citation Nr: 1601504 Decision Date: 01/13/16 Archive Date: 01/21/16 DOCKET NO. 11-33 283 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for a right knee disability. 4. Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD A. Gibson INTRODUCTION The Veteran served on active duty from April 1979 to April 1983. This appeal to the Board of Veterans' Appeals (Board) is on from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran was scheduled to appear for a personal hearing in February 2015; however, he canceled that appointment due to the distance from his home, and has not since requested another hearing be scheduled. He is therefore considered to have withdrawn his hearing request. The issues of entitlement to service connection for high blood pressure, and to chest pain and multiple tumors due to asbestos exposure have been raised by the record in statements received by the Veteran (dated in December 2012, September 2013, and February 2014), but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). In this decision, the Board is granting service connection for tinnitus. The remaining issues are REMANDED to the AOJ for additional development. FINDING OF FACT In resolving all doubt in his favor, tinnitus incepted in service. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection is granted for disability resulting from a disease contracted or an injury sustained in the line of duty during active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2015). Establishing entitlement to service connection requires evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or an injury; and, (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran asserts that he has had tinnitus since service. He asserts he was exposed to traumatic noise working on the flight line and repairing jet engines. He said that he was not provided with adequate hearing protection, and that he and his fellow soldiers used earmuffs and rags for that purpose. Tinnitus is defined as "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." Dorland's Illustrated Medical Dictionary, 1956 (31st ed. 2007). Because tinnitus is "subjective," its existence is generally determined by whether the veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. Charles v. Principi, 16 Vet. App. 370 (2002). To that end, the Board has no reason to doubt that the Veteran currently experiences ringing in the ears. Based on all of the above, the Board finds that a current tinnitus disability exists. Further, he has been diagnosed with tinnitus. His discharge examination in July 1983 does not document a complaint of tinnitus, and his ears were clinically evaluated at that time as normal. His STRs do not document any complaints or treatment for tinnitus, although they do contain a number of audiograms and document some hearing loss. He was given a VA examination in November 2010. That examiner noted the Veteran reported that tinnitus began bothering him in the 1990's, and therefore found in less likely to be related to service because it started more than 10 years following separation. The Veteran asserts that he had the ringing at separation and was told that it would get better with time. He asserts he told her that he had tinnitus at separation but that it really got worse and became a nuisance in the 1990's. He said that he has taken a sleep aid for a number of years because of the noise, which he did not always have to do. Aside from the notation in the VA examination that it started many years after service, the Veteran has asserted throughout the pendency of this claim that he has had the symptoms of tinnitus since service. The Veteran is competent to report his own experiences. The only contradiction to these assertions is the VA examiner's report, which was transcribed by the examiner and not necessarily a direct quote from the Veteran, and an absence of documented treatment or complaints, which by itself is insufficient to discredit offered testimony. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Therefore, the Board finds his statements credible. As noted above, tinnitus is a disability that can be identified through lay observation alone. Charles, supra. See also Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Board has found his statements that it manifested in service and persisted since that time competent and credible. There is no probative evidence refuting his statements. Therefore, because tinnitus is found to have manifested in service, service connection for tinnitus is granted. ORDER Service connection for tinnitus is granted. REMAND The Veteran's remaining claims must be remanded for further development. Another VA examination should be conducted in regard to his hearing. He has presented competent and credible evidence of noise exposure in service. His records contain audiograms, once showing a notation signifying that a threshold shift had occurred. He has also asserted that he has had symptoms of hearing loss since service. The current examination does not take into account whether delayed hearing loss may have occurred due to noise exposure. The Veteran's right knee claim has not been properly developed. The Veteran requested that records from the Durham VAMC and a local emergency center be obtained, which has not been done. He was also not given an examination for his right knee. Although his STRs do not show this injury, he has complained on chronic pain, and has asserted it was caused when he fell off of a ladder while fueling an aircraft. Accordingly, an examination should be conducted. His claim for a TDIU is inextricably intertwined with his other claims and must also be remanded for readjudication. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify all treatment he has received for his knee and his hearing loss, and make attempts to obtain all records not already associated with the claims file. Advise him that attempts to obtain records from Wilson Care were unsuccessful and that he should reauthorize VA to obtain them or obtain them himself. Ensure that a complete set of records from the Durham VAMC and Portland VAMC (possibly related to a study on tinnitus) are associated with the claims file. 2. After receipt of records, schedule the Veteran for an appropriate examination for an opinion on whether his hearing loss is disabling for VA purposes, and also whether any hearing loss diagnosis is as likely as not (50 percent or greater probability) related to noise exposure in service. The Veteran was exposed to noise on the flight line and working with jet engines. A hearing test along with the Maryland CNC word recognition test must be conducted. The examiner is asked to review the claims file before the examination and to provide explanatory rationale for all opinions rendered. The Board notes that the Veteran was not diagnosed with hearing loss at separation or during service, but this is not dispositive to the issue of whether current hearing loss is related to acoustic trauma in service. A notation in February 1982 shows a threshold shift. He has testified that his hearing loss and tinnitus are very severe. The examiner is asked to provide comment on the impact, if any, of the line of research conducted by Dr. Sharon G. Kujawa, including the following: a. "Acceleration of Age-Related Hearing loss by Early Noise Exposure: Evidence of a Misspent Youth" by S. Kujawa, M.D., and M. C. Liberman (2006). - J Neurosci. 2006 Feb 15; 26(7): 2115-2123. b. Kujawa SG, Liberman MC (2009) Adding insult to injury: cochlear nerve degeneration after "temporary" noise-induced hearing loss. J Neurosci. 2009 Nov 11;29(45):14077-85. c. Lin HW, Furman AC, Kujawa SG and Liberman MC (2011) Primary neural degeneration in the guinea pig cochlea after reversible noise-induced threshold shift. JARO 12:605-616. d. Furman AC, Kujawa SG, Libermann MC (2013) Noise-induced cochlear neuropathy is selective for fibers with low spontaneous rates. J. Neurophysiol.110, 577-586. 3. Schedule the Veteran for an appropriate examination for an opinion on whether any right knee diagnosis is as likely as not (50 percent or greater probability) related to service. The examiner is asked to review the claims file and the Veteran's statements. The examiner is advised that his STRs do not show a knee injury but that fact alone is not dispositive of the inquiry. Therefore, the examiner is asked to elicit a detailed history from the Veteran regarding the injury to the right knee. The Veteran asserts falling from a ladder while refueling a jet, and injuring his knee. He said that he complained about his knee at separation, but unfortunately, his report of medical history from separation is not among his STRs. The separation examination showed a normal knee. The examiner is asked whether the injury as described by the Veteran is as likely as not the cause of any current disability. All opinions are to be supported with explanatory rationale. 4. Following completion of the above directive, review the claims file to ensure compliance with this remand. If the examination report does not include adequate responses to the specific opinions requested, it must be returned to the examiner for corrective action. 5. Finally, after completing all of the above, and any additional development deemed warranted, readjudicate the claim on appeal. If the benefit on appeal remains denied, furnish the Veteran and his representative with a copy of a supplemental statement of the case (SSOC) and allow an appropriate time for response. Thereafter, return the file to the Board for further appellate consideration. The Veteran 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). ______________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs