Citation Nr: 1631272 Decision Date: 08/05/16 Archive Date: 08/12/16 DOCKET NO. 14-07 866 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active duty from June 1972 to June 1979. 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 Denver, Colorado. The Veteran and his wife testified before the undersigned Veterans Law Judge at a videoconference hearing held in May 2016. A transcript is associated with the claims file. The issue of 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). FINDINGS OF FACT The Veteran's tinnitus as likely as not manifested as a result of exposure to acoustic trauma during service. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION A detailed discussion of VA's various duties to notify and assist is unnecessary in this case, given the favorable nature of the Board's decision regarding tinnitus. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. 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." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Service connection may also be granted on a presumptive basis for certain chronic disabilities, including sensorineural hearing loss, when manifested to a compensable degree within the initial post-service year. 38 U.S.C.A. §§ 1101 , 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Historically, the Veteran served on active duty in the Marine Corps with his first period of service shown to entail the MOS of machine gunner and his second period of service involved a dual MOS with the primary MOS to be a supply admin operations man and the second MOS to be that of a marksmanship instructor. He has testified that he has experienced tinnitus since an incident during infantry training when a mortar used during such training went off about three feet away. He described his ears ringing for a couple of hours and indicated that is when his tinnitus started. Transcript at page 4. Elsewhere he described additional episodes of acoustic trauma in service but did not indicate whether he had tinnitus afterword. He also testified that the March 2013 VA examiner who provided an unfavorable opinion about the etiology of his tinnitus misunderstood the information provided about the onset date of the tinnitus, which the examiner put down as the early 1980's. He explained that it was friends and family who noticed he had problems at that time. Transcript at page 9. His representative has argued that there is no post service acoustic trauma and the Veteran doesn't hunt or use firearms. Id at page 3. Service treatment records are silent for issues with tinnitus, although on his May 1972 report of medical history he confirmed Ear, Nose Throat (ENT) trouble, without any specific ear issues described. No actual findings of ear issues were shown in records to include his May 1975 reenlistment examination and his May 1979 separation examination. The report of the March 2013 VA examination is noted to have given the date of onset of tinnitus as the early 1980's, not in service. The examiner gave an unfavorable opinion stating that tinnitus less likely as not began in service due to the fact the date of onset was not related to service. The Board acknowledges that this negative opinion with respect to this claim is the only post service medical evidence of record regarding tinnitus. However, in rendering the negative opinion, the examiner did not consider the Veteran's competent and credible lay testimony of having ringing in his ears while in the service, with MOS's during his 7 years of service significant for acoustic trauma throughout such service. As the VA examiner failed to consider this testimony, the Board concludes that the VA examiner's opinion is entitled to little probative weight. Moreover, as the Veteran is competent to report a continuity of symptomatology since the initial in-service manifestation of his tinnitus, he is competent to relate his current tinnitus to his active service. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see also Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013) (holding that a claimant may only use a theory of continuity of symptoms (§ 3.303(b)) to establish entitlement to benefits for chronic conditions enumerated in § 3.309(a)). Tinnitus has been classified as an organic disease of the nervous system. Fountain v. McDonald, 27 Vet.App. 258, 272 (2015). In light of the foregoing, the Board therefore concludes that, resolving any reasonable doubt in the Veteran's favor, service connection for tinnitus is warranted. ORDER Entitlement to service connection for tinnitus is granted. REMAND In regards to the hearing loss claim, the Board finds that remand is necessary to afford proper evidentiary development of this matter. Although bilateral hearing loss was diagnosed in the March 2013 VA examination, the audiology examiner appears to suggest that the lack of a hearing loss on separation examination indicated that current hearing loss was not likely related to service. The rationale was simply stated as follows "there is no scientific basis for the existence of delayed onset hearing loss due to acoustic trauma." The Board notes that even though disabling hearing loss may not have been demonstrated at separation, a Veteran may nevertheless establish service connection for a current hearing disability by submitting evidence that a current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). The threshold for normal hearing is from zero to 20 decibels and higher threshold levels indicate some degree of hearing loss. Id (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)). Although the Veteran's hearing was in the normal range in all acoustic examinations done, the Board notes that there was an upward threshold shift of 10 decibels of the right ear and 5 decibels of the left ear at 3000 Hertz and an upward threshold shift of 5 decibels of the right ear at 500 Hertz on the May 1975 reenlistment examination and the May 1979 separation examination, when compared to the original enlistment examination of May 1972. Other thresholds either stayed the same or decreased between entrance and separation. Thus, an opinion based solely on the lack of hearing loss on separation is inadequate. Thus an addendum opinion should be provided regarding the etiology of hearing loss, to include consideration of threshold shifts shown in service. Accordingly, the case is REMANDED for the following action: 1. Refer the claims folder and a copy of this Remand to the March 2013 VA audiological disorders examiner for an addendum to their opinions regarding the nature and etiology of the claimed hearing loss. If the examiner is no longer available, please refer this matter to another similar qualified examiner. Upon review of the entire claims folder, to include the additional medical evidence, post-service treatment records, and lay statements of the Veteran, the examiner should offer an opinion as to the following: Whether it is at least as likely as not (at least a 50 percent probability) that any disability of hearing loss was incurred or aggravated in service or was manifested within the first post service year. In rendering the above opinion, the examiner is advised that the mere absence of in-service evidence of a hearing loss disability during service is not 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. Any opinion offered should include a comprehensive rationale e based on sound medical principles and relevant facts of this case. 2. After ensuring that the requested actions are completed, re-adjudicate the claim on appeal. If the benefits sought are not fully granted, then furnish a supplemental statement of the case (SSOC), before the claims file is returned to the Board, if otherwise in order. The appellant 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). ______________________________________________ P. SORISIO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs