Citation Nr: 1625063 Decision Date: 06/22/16 Archive Date: 07/11/16 DOCKET NO. 13-29 778 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD L. Stepanick, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1969 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In addition to the paper claims file, a paperless, electronic claims file is associated with the Veteran's claims, and has been reviewed. The issue of entitlement to service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. FINDING OF FACT Competent and credible evidence indicates the Veteran's tinnitus arose in service and has continued since. 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, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is seeking service connection for tinnitus that he asserts began in service and has continued since. Specifically, he reports he was exposed to the noise of weapons fire during training, and to heavy equipment noise due to his military occupational specialty. He has denied significant post-service noise exposure. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Additionally, conditions listed as chronic diseases under 38 C.F.R. § 3.309(a), such as organic diseases of the nervous system (to include tinnitus), are entitled to service connection if the evidence establishes continuity of symptomatology since service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). The Veteran is competent to testify to observable symptoms such as ringing in his ears, and has done so credibly in this instance. Layno v. Brown, 6 Vet. App. 465 (1994); Charles v. Principi, 16 Vet. App. 370 (2002) (finding lay person competent to identify tinnitus). Thus, the remaining question is whether the current tinnitus he reports is related to in-service acoustic trauma. The Board finds that it is. The Board acknowledges that the evidence of record includes two conflicting medical opinions, neither of which fully addresses the relevant evidence of record. Specifically, in February 2013, a VA audiologist stated that the Veteran's tinnitus was less likely than not related to service, because his hearing was normal in service, but did not explain why a finding of normal hearing trumped the Veteran's reports of tinnitus that began at that time. In April 2013, a private audiologist stated that it was "quite likely" that in-service noise exposure initiated the Veteran's tinnitus, because his current hearing levels were consistent with noise-induced hearing loss, but stated vaguely that he had reviewed some of the Veteran's service records, and did not address the findings documented in the Veteran's in-service audiograms and discussed by the VA audiologist. However, when a condition may be diagnosed by its unique and readily identifiable features, as is the case with tinnitus, the presence of the disorder is not a determination "medical in nature," and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 305 (2007). When a claim involves a diagnosis based on purely subjective complaints, the Board is within its province to weigh the Veteran's testimony and determine whether it supports a finding of service incurrence and continued symptoms since service. Id. If it does, such testimony is sufficient to establish service connection. Id. Here, in light of the positive and negative evidence of record, to specifically include the Veteran's competent and credible reports of tinnitus that began in service, the Board finds that the evidence is at least in equipoise regarding whether his current tinnitus was incurred in service. See Fountain, 27 Vet. App. at 272. Accordingly, resolving all doubt in his favor, service connection is warranted. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102 (2015). ORDER Service connection for tinnitus is granted. REMAND The Board regrets the delay, but finds that further development is necessary prior to adjudication of the Veteran's claim for service connection for bilateral hearing loss. The medical opinions of record that address the etiology of the Veteran's tinnitus also address the etiology of his hearing loss. In that regard, the February 2013 VA audiologist issued a negative opinion, which she supported by explaining that the Veteran's hearing sensitivity at separation was "entirely normal" bilaterally. She further noted that there was no progression in the Veteran's hearing thresholds from his entrance to his separation audiograms, regardless of whether corrections from American Standards Association (ASA) units-used during the Veteran's pre-induction examination-to International Standards Organization-American National Standards Institute (ISO-ANSI) units-used during his separation examination-were made. However, hearing loss need not be shown in service for service connection to be established; rather, service connection may be established for a current hearing disability with evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Based on the foregoing, the rationale provided by the VA audiologist is inadequate. On the other hand, the private audiologist who evaluated the Veteran in April 2013 issued a positive opinion, stating it was "quite likely" that in-service noise exposure initiated the Veteran's hearing loss, because his current hearing levels were consistent with noise-induced hearing loss. However, it is unclear whether he considered the results of the Veteran's separation audiogram, which showed normal hearing bilaterally at the tested frequencies and which the VA audiologist cited as her basis for finding that the Veteran's hearing loss was not incurred during service. As a result, that opinion is also inadequate. In view of the foregoing deficiencies in the medical opinions of record, an additional VA opinion is necessary. Accordingly, the case is REMANDED for the following action: 1. Send the claims file to a VA audiologist for review. If the audiologist determines a new examination is needed to respond to the question posed, one should be scheduled. The audiologist should consider values converted from ASA to ISO-ANSI units for the Veteran's August 1969 pre-induction audiogram. Following review of the claims file, the audiologist should state whether the Veteran's bilateral hearing loss is at least as likely as not (50 percent or greater probability) related to service. In rendering the opinion, the audiologist should consider and address the opinions provided by a VA audiologist and a private audiologist in February 2013 and April 2013, respectively, should address the significance of the Veteran's in-service and post-service noise exposure and of any in-service shifts in auditory thresholds, and should explain why the Veteran's current hearing loss is/is not merely a delayed response to in-service noise exposure. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against it. A discussion of the underlying reasons for any opinions expressed must be included in the audiologist's report, to include reference to pertinent evidence of record and medical literature or treatises where appropriate. If the audiologist is unable to provide an opinion without resorting to speculation, he or she must provide an explanation for the basis of that determination. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). 2. After completing the requested action and any additional development deemed necessary, readjudicate the claim on appeal. If the benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and provide an appropriate period of time to respond. The case should then be returned to the Board for further appellate review, if in order. The appellant has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs