Citation Nr: 1626072 Decision Date: 06/29/16 Archive Date: 07/11/16 DOCKET NO. 14-10 861 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement for service connection for tinnitus. 2. Entitlement to a compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Lech, Associate Counsel INTRODUCTION The Veteran had active service in the U.S. Marine Corps from June 1990 to June 1994. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Veteran testified before the undersigned in a December 2014 hearing. A transcript of that hearing is of record. The issue entitlement to a compensable rating for bilateral hearing loss is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The evidence is in equipoise as to whether the Veteran's tinnitus is related to his active service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2015). Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. 3.307, 3.309(a) (2015). If a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b) (2015). The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran asserts that he has tinnitus as due to active service hazardous noise exposure. In addition to serving as a mortar man, he asserts that he was exposed to noise when he was sometimes exposed to explosions without having the time to put in his hearing protection. The Board finds the Veteran's account credible and consistent with the circumstances of his service. The Veteran's December 1989 service entrance examination, May 1994 service separation examination, and STRs do not show any complaints of tinnitus. In June 2011, the Veteran underwent a VA audiological consultation. The examiner noted that the Veteran last experienced tinnitus in service, and has not experienced tinnitus since the 1990s. The examiner opined that any tinnitus that occurred as a result of in-service noise exposure has resolved. In his hearing testimony, the Veteran related that he was exposed to the noise resulting from his work as ammunition personnel on a regular basis. He stated that his tinnitus started while he was in active service, and that it has continued ever since. The Veteran reported that he told the June 2011 examiner that he was not experiencing tinnitus at the time of the examination, and not that he did not experience tinnitus in general. In this case, the Veteran is competent to describe his in-service recollections of tinnitus as well as his current manifestations of tinnitus because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. The Board also finds the lay statements in evidence credible. The statements are consistent with other evidence of record, such as the evidence of the circumstances of the Veteran's service. Despite not being buttressed by contemporaneous medical evidence, the statements attest to the continuity of the Veteran's tinnitus symptomatology, and the Board finds them persuasive. The Board notes that the Veteran is competent to report that he experiences ringing in his ears, which is the clinical feature of tinnitus, starting in service, and that it has continued after separation from service. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). The Board finds that the Veteran's statements as to onset of tinnitus in service and the persistence of ringing in his ears since that time are consistent and credible. Regarding etiology, the claims folder contains a negative opinion that tinnitus was less likely a result of noise exposure service in service. In this regard, while the VA opinion of record is not favorable to the Veteran, the June 2011 VA examiner did not address the assertions of continuity of symptomatology of the Veteran's tinnitus, stating instead that the Veteran no longer experienced the disability. This opinion is contradictory to the Veteran's credible statements as to onset and continuity, and the Board finds that the Veteran is uniquely situated to competently identify and report on the onset and duration of tinnitus. Weighing the above evidence, the Board finds the statements of the Veteran to be the most probative evidence in this case. Thus, the Board finds that the criteria for service connection for the Veteran's tinnitus have been met and the claim is granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2015). ORDER Entitlement for service connection for tinnitus is granted. REMAND The Veteran has asserted that his bilateral hearing loss has worsened since his last VA examination, which took place in 2011. The Veteran testified that he now needs to wear hearing aids, and that his hearing loss interferes with his work. As such, the Veteran should be afforded a new VA examination to determine the current severity of his bilateral hearing loss. Snuffer v. Gober, 10 Vet. App. 400 (1997) (noting that a Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination); Caffrey v. Brown, 6 Vet. App. 377 (1994) (determining that Board should have ordered contemporaneous examination of a Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA audiology examination. The examiner should identify the nature, frequency, and severity of the Veteran's hearing loss. The examiner must report on the functional effects of the Veteran's hearing loss on his occupational and social functioning. All testing deemed necessary should be performed, and the results reported in detail, to include all pure tone thresholds, pure tone threshold averages, and Maryland CNC tests. A complete rationale for all opinions expressed should be provided. If the examiner is unable to obtain threshold scores through audiological testing, he or she must provide a thorough explanation as to why these scores cannot be obtained. 2. Then, readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case, allow the applicable time for response, and then return the case to the Board. 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). ______________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs