Citation Nr: 1609172 Decision Date: 03/08/16 Archive Date: 03/15/16 DOCKET NO. 13-30 994A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for hyperopia with presbyopia claimed due to right eye injury. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for scar above the right eye. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, Appellant's Spouse, and Dr. H.C. ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from August 1972 to August 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision of the Philadelphia, Pennsylvania Department of Veterans Affairs (VA), Regional Office (RO). In October 2015 a hearing was held before the undersigned. A transcript of the hearing is of record. Additional evidence has been associated with the claims file since the Supplemental Statement of the Case. However, as the Board grants entitlement to service connection for tinnitus below and remands the remaining issues to the RO, there is no prejudiced to the Veteran to proceed with adjudication and the additional evidence will be considered on remand. The issues of entitlement to service connection for hyperopia with presbyopia claimed due to right eye injury, bilateral hearing loss, and scar above the right eye are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Affording the Veteran the benefit of the doubt, tinnitus was incurred in service. CONCLUSION OF LAW Tinnitus was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.102, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Service Connection Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). The Veteran seeks entitlement to service connection for tinnitus. The Veteran reports that his tinnitus began after an assault in service wherein he was struck on the head. Service treatment records do not reveal any complaint, diagnosis, or treatment for tinnitus. On the Report of Medical Examination at separation from service, dated in February 1974, the Veteran wrote "I am in good health." In May 2012 the Veteran was afforded a VA medical examination. The Veteran identified head trauma in service and reported that his tinnitus began 20 or more years prior. In a November 2014 RO rating decision the Veteran was granted entitlement to service connection for traumatic brain injury (TBI) and headaches based upon a finding that the Veteran's service treatment records revealed that he had been assaulted in service. In October 2014 the Veteran was afforded a VA medical examination with regard to TBI. The examiner noted that the Veteran had subjective symptoms of TBI, including tinnitus. In October 2014 the Veteran was afforded a VA medical examination with regard to his tinnitus. The Veteran reported that his tinnitus started in service with head trauma in 1973 and 1974. The examiner rendered the opinion that the Veteran's tinnitus was at least as likely as not a symptom associated with his hearing loss. A VA medical opinion was obtained in November 2014. The examiner was asked to discuss whether it is at least as likely as not that the Veteran's tinnitus arose from the assault in service. Treatment records while the Veteran was on active duty showed perforation of the ear drum in 1974 and service treatment records revealed that the Veteran was punched in the head. The October 2014 TBI examination was noted to diagnose TBI from that assault. The examiner rendered the opinion that the Veteran's tinnitus did not have any relation to the in service assault and head injury. The examiner indicated that the Veteran's hearing thresholds did not show any shift from entry to exit from service. At the hearing before the undersigned the Veteran reported that his tinnitus was noticed following his assault in service. The Veteran is competent to report what he experiences. For VA purposes, tinnitus is the type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370(2002). Thus, if a veteran reports ringing in his ears, then a diagnosis of tinnitus is generally provided without further examination. The etiology of the disorder is similarly reliant upon lay statements. The date that a veteran reports that the tinnitus symptoms began is generally accepted as the date that the disorder began, without further examination, unless there is something in the record that would call the Veteran's statements into question. Affording the Veteran the benefit of the doubt, entitlement to service connection for tinnitus is warranted. The probative evidence of record reveals that the Veteran was assaulted in service. Although a VA medical examiner has opined that the Veteran's tinnitus is not related to his in service assault, another VA medical examiner noted that the tinnitus was a subjective symptom of TBI and the Veteran has competently and credibly reported that his tinnitus began following the assault. As the Veteran has credibly reported a continuity of symptomology of tinnitus beginning in service and currently diagnosed, service connection for tinnitus is granted. ORDER Service connection for tinnitus is granted. REMAND The Veteran receives continuous care from VA. VA treatment records printed in December 2015 include treatment records dated to October 2015. On remand, attempts must be made to obtain and associate with the claims file VA treatment records regarding the Veteran that are dated since October 2015. 38 C.F.R. § 3.159. In the Veteran's application for service connection, dated in December 2011, the Veteran reported that he received Social Security benefits. In a Social Security Administration (SSA) Inquiry, dated in March 2012, it was noted that the Veteran had a disability onset date in October 1999. Review of the claim file does not reveal that an attempt has been made to obtain the Veteran's complete SSA records. Because SSA records are potentially relevant to the Board's determination, any available SSA records should be obtained on remand. Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). VA is required to conduct an accurate and descriptive medical examination based on the complete medical record. 38 C.F.R. §§ 4.1, 4.2; Green v. Derwinski, 1 Vet. App. 121 (1991). This remand orders that attempts be made to obtain additional treatment records. If, and only if, additional treatment records relevant to the Veteran's claims for hearing loss and scar above the right eye are associated with the claims file, the claims file must be returned to the examiners who performed the October 2014 examinations and prepared the November 2014 medical opinion for preparation of addenda considering the additional evidence. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain and associate with the claims file complete VA treatment records regarding the Veteran dated since October 2015. Any additional pertinent records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. Request, directly from the SSA, complete copies of any determination on a claim for disability benefits from that agency, together with the medical records that served as the basis for any such determination. All attempts to fulfill this development should be documented in the claims file. If the search for these records is negative, that should be noted and the Veteran must be informed in writing. 3. Thereafter, if and only if pertinent treatment records are obtained, return the VA medical examinations and opinion dated in October 2014 and November 2014 to the examiners who prepared them so that addenda may be prepared. The addenda should address the question of whether it is at least as likely as not that the Veteran has a bilateral hearing loss disability and/or scar above the right eye disability incurred in or aggravated by his active service. If the examiners are unavailable or in the event the examiners determine that further examination of the Veteran is necessary, the Veteran should be scheduled for appropriate VA medical examinations. The Veteran's VA claims file must be furnished to the examiner or the examiner's designee for use in the study of this case. In rendering the opinion, the examiner should comment upon the medical opinions of record. 4. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated, to include all evidence received since the December 2014 Supplemental Statement of the Case. If the claims remain denied, the Veteran and his representative should be issued another supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant 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). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs