Citation Nr: 1627246 Decision Date: 07/08/16 Archive Date: 07/14/16 DOCKET NO. 12-19 339 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Orie, Associate Counsel INTRODUCTION The Veteran served in the United States Coast Guard from September 1974 to August 1978. This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In that decision, the RO denied the Veteran's service connection claims for bilateral hearing loss and tinnitus. The Veteran disagreed with that decision and perfected this appeal. The Veteran provided testimony before the undersigned Veterans Law Judge at a hearing in May 2015. A transcript of the hearing is in the claims folder. The issue of entitlement to service connection for bilateral hearing loss disability is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT Tinnitus had its onset in service. CONCLUSION OF LAW Tinnitus was incurred in active service. 38 U.S.C.A. §§ 1101, 1110 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION As the claim is being granted in full, a discussion of VA's duties to assist and notify the Veteran is not necessary. At the outset, the Board notes that the record does not show and the Veteran does not contend that he sustained an in-service injury due to combat with the enemy. Thus, the provisions of 38 U.S.C.A. § 1154(b) are not applicable in this instance. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for organic disease of the nervous system if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). On February 9, 2015, the United States Court of Appeals for Veterans Claims (Court) held that tinnitus was a disease, rather than merely a symptom and that 38 C.F.R. § 3.309(a) "includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an 'organic disease[] of the nervous system.'" See Fountain v. McDonald, __Vet. App.__, No. 13-0540, 2015 WL 510609 (Feb. 9, 2015). As the Court held tinnitus to be a chronic disease subject to applicable presumptions, the disease now falls within the parameters of 38 C.F.R. § 3.303(b), as to claims of chronicity. Despite having no complaints of and treatment for tinnitus in service (as evidenced by the service records), the Veteran avers that ringing in his ears, or tinnitus, had its onset in service. Specifically, he maintains that he sustained acoustic trauma carrying out his duties working on the USCGC Taney from 1974 to 1976. He reports that he was consistently exposed to engine noise and noise from various weapons, including five inch guns and 50 caliber heavy machine guns. Service personnel records confirm the Veteran served on USCGC Taney from November 1974 to May 1976. Based on the circumstances of his service, the Board finds that the Veteran was exposed to hazardous noise in service. See 38 U.S.C.A. § 1154(a). Tinnitus is a condition that may be diagnosed by its unique and readily identifiable features, and the presence of the disorder is not a determination that is medical in nature and is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that "ringing in the ears is capable of lay observation"). Thus, as the Veteran is competent to identify the disorder, to include the onset of the disorder and the continuity of it over the years, the Board must consider whether he is credible in his assertions. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency and credibility, which is a "factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). In this regard, the Board finds the statements as to onset of his tinnitus due to noise exposure in service and continuity thereafter to be credible and consistent with the circumstances of his service. The finding is uncontroverted by the other evidence of record. The January 2011 examiner's opinion that the claimed tinnitus was not related to service is not probative evidence, as it was not supported by adequate rationale. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.303(b); Walker, 708 F.3d 1331. ORDER Service connection for tinnitus is granted. REMAND The Board regrets the additional delay, but a remand is necessary in this matter. In January 2011, the Veteran was afforded a VA examination in relation to his claim for service connection for bilateral hearing loss disability. In regards to the bilateral hearing loss disability, the VA examiner opined that the Veteran's bilateral hearing loss disability was less likely than not caused by or a result of military acoustic trauma. In so finding, the examiner reasoned that the Veteran's hearing thresholds were within normal range at the time of discharge. The examiner also stated that her clinical experience and review of the records formed the basis for her opinion. However, relevant case law recognizes that the absence of in-service evidence of a hearing disability is not always fatal to a claim. As adequate rationale has not been given, another opinion is necessary to make an accurate determination on the claim. In addition, most recent VA treatment records document the Veteran's claims of worsening of his hearing. Another examination is necessary to determine the nature, etiology, and current severity of the Veteran's disability. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the Veteran and his representative and, with their assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers referable to the treatment of the Veteran's bilateral hearing loss disability. 2. Schedule the Veteran for an appropriate VA examination for his bilateral hearing loss disability. The claims file, including this remand, should be provided to the appropriate examiner for review and the examiner should note that it has been reviewed. After reviewing the file, eliciting history directly from the Veteran, and conducting a thorough physical examination, as well as any diagnostic studies deemed necessary, the examiner should opine as to the following: a) Is it at least as likely as not (at least 50 percent probability) that the Veteran's bilateral hearing loss disability was caused by or a result of the Veteran's in-service acoustic trauma. The examiner is advised that the absence of in-service evidence of a hearing disability is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). A clear explanation for all opinions based on the specific facts of the case and relevant medical principles involved is necessary. 3. After undertaking any additional development deemed necessary and ensuring that the VA examination reports obtained as a result of this remand comply with the instructions set forth herein, readjudicate the Veteran's claim. If the benefit sought on appeal remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. 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 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). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs