Citation Nr: 1602404 Decision Date: 01/21/16 Archive Date: 01/28/16 DOCKET NO. 11-16 235 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD P. Gibbs, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1966 to February 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2010 rating decision by the Milwaukee, Wisconsin Department of Veterans Affairs (VA) Regional Office (RO). The issue of service connection for bilateral hearing loss is being REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if action on his part is required. FINDING OF FACT It is reasonably shown that the Veteran's tinnitus began during service and has persisted since. CONCLUSION OF LAW Service connection for tinnitus is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A (West 2014) have been met. The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. As the decision in this matter is favorable to the Veteran, further discussion of the VCAA is not necessary. Legal Criteria, Factual Background and Analysis Service connection may be granted for disability resulting from personal injury suffered or disease contracted during active military service, or for aggravation of a pre-existing injury suffered, or disease contracted, during service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge, when all the evidence establishes that it was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability there must be evidence of: (1) a present disability for which service connection is sought; (2) incurrence or aggravation of a disease or injury in service; 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, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). One method of substantiating a claim of service connection is by showing that claimed chronic disability became manifest (was incurred) during service, and has persisted since. The Veteran's DD Form 214 shows that his military occupational specialty was signalman. His Service Treatment Records (STRs), to include the report of his January 1970 examination for release from active duty, are silent for complaint, finding, or diagnosis of tinnitus. Postservice treatment records include a 1981 private audiogram which is also silent regarding tinnitus. On September 1989 private audiological examination, the Veteran reported tinnitus, mostly in the right ear which was deemed to be noise related. An April 2009 audiogram also notes right ear tinnitus. In a February 2009 dated statement a private audiologist (who referred to the April 2009 audiogram) noted that the Veteran provided a history of exposure to Navy weaponry noise in service and also postservice shop work and recreational (hunting and target practice) exposure to noise, reported that he had tinnitus, and expressed his belief that his tinnitus was related to exposure to noise in service. He recalled going hunting while on leave in 1968 or 1969 and hearing the tinnitus. The private provider opined that the Veteran's tinnitus may be related to his exposure to noise in service. On a February 2010 VA examination, the Veteran reported tinnitus of a "long time" duration. Citing to normal whispered/spoken voice hearing on service discharge and in 1981, and indicating that the Veteran's tinnitus was likely related to his hearing loss (which the examiner found to be unrelated to service), the examiner opined, in essence, that the Veteran's tinnitus is unrelated to his service/noise trauma therein. The Veteran asserts that his tinnitus began in service and has persisted since. The existence of tinnitus is established by reports of the person experiencing it, and it is generally a disability not capable of objective verification. Therefore, credible lay evidence is competent evidence to establish the existence of tinnitus, when it began, and continuity of symptoms. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). It is not in dispute that the Veteran has tinnitus; his reports of it have been documented since 1989, and clinicians have not rejected his reports as not credible. It is also not in dispute that the Veteran's occupation in service involved exposure to considerable levels of noise. As there is no contemporaneous documentation of tinnitus in service, what remains necessary to substantiate the Veteran's claim is competent evidence that his current tinnitus is related to his tinnitus/exposure to noise therein. There is both positive and negative evidence of record in this matter. On VA examination the provider opined that the tinnitus is unrelated to the Veteran's service. That opinion is lacking in probative value, as the provider does not account for the Veteran's reports of onset of tinnitus in service and continuity since (or reject them as not credible). Supporting the Veteran's claim somewhat is the February 2009 dated private audiologist's statement indicating that military noise trauma may have been the original cause of the Veteran's tinnitus, although postservice noise trauma contributed. More supportive of the Veteran's claim are his own accounts of onset of tinnitus in service and persistence since. They are noted in his statements to VA and in clinical reports of 2009 private and 2010 VA audiological evaluations (as noted, he reported tinnitus in 1989 but did not then report when he first noticed it, and was not asked). Significantly, while tinnitus was not noted on service separation examination or on 1981 examination, it was also not specifically denied. Thus, the clinical notations in the Veteran's medical records partially support, and do not contradict, his account. Ultimately, the determination in this matter rests on the credibility of the Veteran's accounts. The Board finds that the record provides no basis to question his credibility; no clinician has rejected his accounts as not credible. Resolving any remaining reasonable doubt in the Veteran's favor as required (see 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102), the Board finds that the evidence shows that the Veteran's tinnitus had its onset in service and has persisted since. All of the requirements for establishing service connection are met; service connection for tinnitus is warranted. ORDER Service connection for tinnitus is granted. REMAND The Veteran contends that he incurred a hearing loss disability from exposure to acoustic trauma in service. It is not in dispute that he has a hearing loss disability or that he was exposed to noise trauma in service. Consequently, what remains to be resolved is whether or not the current hearing loss disability is indeed related to the noise trauma in service. On the 2010 VA examination the examiner noted that the Veteran had normal hearing on enlistment and at the time of separation and in 1981, and opined that the onset of the hearing loss occurred after 1981. Notably, the Veteran's service entrance audiometry is presumed to have been conducted under ASA standards and for comparison (to current ISO standards) requires conversion. When such conversion is made, the Veteran is found to have a right ear hearing loss disability and a left ear elevated puretone threshold (by virtue of the thresholds at the 500 Hertz frequency) on entrance to service. Furthermore, it is well-established that whispered voice/spoken voice testing which was conducted on separation of service, is an unreliable measure to determine whether there is sensorineural hearing loss. The 2010 VA examiner also did not discuss adequately the concept of delayed onset hearing loss. Consequently, the report of that examination is inadequate for rating purposes, and a remand for an examination/medical opinion that is adequate is necessary. Accordingly, the case is REMANDED for the following: 1. The AOJ should also arrange for an audiological examination of the Veteran to ascertain the likely etiology of his bilateral hearing loss disability. Based on examination of the Veteran and review of his record, the examiner should provide an opinion that responds to the following: Based on the factual evidence of record, what is the most likely etiology for the Veteran's bilateral hearing loss disability? Specifically, is it at least as likely as not (a 50 % or better probability) that it was incurred or aggravated in service, to include as due to exposure to noise trauma therein? The examiner should explain the rationale for the opinion in detail, citing to the factual data that support the conclusion, and noting that service entrance audiometry was in ASA values (which when converted to ISO units show a right ear hearing loss disability and an elevated puretone threshold on the left), and that the whispered voice/spoken voice testing on separation is deemed an unreliable measure of hearing acuity. The examiner should address the Veteran's lay statement allegations and discuss the concept of delayed onset hearing loss, citing to supporting medical literature. 2. Thereafter, the AOJ should review the record and readjudicate the claim of service connection for bilateral hearing loss. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the case to the Board. 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs