Citation Nr: 1635481 Decision Date: 09/12/16 Archive Date: 09/20/16 DOCKET NO. 10-46 065 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for a bilateral eye disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C.S. De Leo, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1969 to December 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Boston, Massachusetts (RO). In that decision, the RO, inter alia, denied entitlement to service connection for tinnitus and a bilateral eye disability. In an October 2010 substantive appeal, via a VA Form 9 Appeal to the Board of Veterans' Affairs, the Veteran requested to be scheduled for a Board videoconference hearing at the local VA regional office. However, in September 2015, he requested to withdraw his hearing request. As such, the Veteran's hearing request is deemed withdrawn. 38 C.F.R. § 20.704. The Veteran testified at the RO in September 2008 before a Decision Review Officer (DRO). A transcript of the DRO hearing is located in the Veterans Benefits Management System (VBMS) file. The issue of entitlement to service connection for a bilateral eye disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran has tinnitus that is attributable to his active military service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, tinnitus was incurred in active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of an injury or disease; and (3) evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). Certain chronic diseases, including organic diseases of the nervous system such as tinnitus, may be presumed to have been incurred during service if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 U.S.C.A. §§ 1101, 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). Although medical evidence is generally required to establish a medical diagnosis or to address other medical questions, lay statements may serve to support claims by substantiating the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (lay evidence is potentially competent to establish the presence of disability even where not corroborated by contemporaneous medical evidence); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (in some cases, lay evidence will be competent and credible evidence of etiology). The Veteran's service treatment records are silent for any complaints of tinnitus. The Veteran reported at the September 2008 DRO hearing, he suffers from tinnitus that he contends is related to in-service noise exposure. Specifically, the Veteran testified that he was exposed to noise exposure related to his military occupational specialty (MOS) of Gunner's Mate where he manned a gun mount for four years, without hearing protection, while stationed aboard a destroyer during Vietnam. He also stated that these symptoms occurred in service, which he has experienced from that time to the present and have since worsened. See DRO hearing transcript, at 4-5; see also May 2010 VA examination; see also May 2012 Buddy Statement from servicemember, H.C.F. Post-service medical evidence concerning this issue consists solely of the May 2010 VA audiology examination, at which time the examiner noted that the Veteran presented with bilateral, constant tinnitus. He reported that it had been present since military service but that he ignored it for many years. He also reported a history of post-service occupational and recreational noise exposure to include the GM Factory, railroad, and lawn mowing. The examiner observed the Veteran's reports of tinnitus began in service and opined that "[w]hile tinnitus can be related to the current high frequency hearing loss and history of noise exposure, it is a matter of speculation . . . as to whether it is related to military service." During the September 2008 RO hearing, the Veteran testified that the onset of tinnitus occurred during active military service. The Veteran reported that his MOS was a Gunner's Mate and that he manned a gun mount in service. He also stated that he had continued to experience symptoms since that time to the present. Regarding the Veteran's tinnitus claim, upon consideration of the above evidence, the Board finds that, resolving reasonable doubt in the Veteran's favor, a grant of service connection for tinnitus is warranted. The competent medical evidence shows a current diagnosis of tinnitus, which the Veteran has reported began during service and has continued from that time to the present. The Board acknowledges that in the May 2010 VA examiner stated that she found that tinnitus can be related to a history of noise exposure, but concluded that it would be speculative as to whether it is related to military service. However, the Board finds that this medical opinion did not give due consideration to the Veteran's competent account of the onset of symptoms in service and their continuity thereafter. The examiner provided no reason for rejecting the Veteran's lay history. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). Moreover, opinions that decline to come to a conclusion because such would be speculative are disfavored. Jones v. Shinseki, 23 Vet. App. 382 (2009). In addition, "The examiner's statement, which recites the inability to come to an opinion, provides neither positive nor negative support for service connection." Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed. Cir. 2009). Consequently, and given that the Veteran is diagnosed with tinnitus and that he has credibly reported that the symptoms of tinnitus began in service and have continued to the present, it is as likely as not that the Veteran's currently diagnosed tinnitus is traceable to military service. With resolution of reasonable doubt in the Veteran's favor, service connection for tinnitus is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102. ORDER Entitlement to service connection for tinnitus is granted. REMAND After a review of all evidence, both lay and medical, the Board finds that further evidentiary development is necessary before a decision can be reached on the merits of the underlying claim for service connection for a bilateral eye disability. The Veteran contends that he suffers from a bilateral eye disability that is related to in-service sun exposure. Specifically, he stated that during service, his duties include standing watch on the bridge of the USS Arnold Isbell, without sun glasses. He explained that upon service entry he had 20/20 vision in the right eye and 20/15 vision in the left eye, and he suffered an eye injury in service, which has continued to get worse since that time. He also stated that his symptoms occurred in service and from that time to the present and have since worsened. According to the Veteran, other service members were issued sunglasses from supply, however, he was not. Further, in May 1971, during an eye examination, he was advised to always wear sun glasses. See May 2007 VA Form 21-4138. The Veteran's service treatment records do not reflect any symptoms, treatment, or diagnosis of an eye disability. Additionally, as noted above, the Veteran has provided competent, credible evidence of in-service exposure to the sun, without eye protection. The Veteran is competent to testify as to the existence of difficulty with his vision. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (stating that "[l]ay testimony is competent . . . to establish the presence of observable symptomatology"). In addition, the Veteran's statements that he was exposed the sun for long periods of time during service is competent, credible, and consistent with the circumstances of his service, in particular his military duties to stand watch while stationed aboard a Naval ship. The remaining issue is whether there is a relationship between any current eye disability and the in-service sun exposure. There is no medical opinion on this question. As the evidence indicated the Veteran has a current disability that may be associated with service but the evidence is insufficient to decide the claim, a remand for a VA examination is warranted. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, the claim for entitlement to service connection for a bilateral eye disability is REMANDED for the following action: 1. Schedule the Veteran for a VA examination as to the nature and etiology of any current bilateral eye disability. All necessary tests should be conducted. The claims file must be sent to the examiner for review. The examiner should indicate whether it is as least as likely as not (50 percent probability or more) that any eye disability diagnosed is related to the Veteran's military service, to include the sun exposure and/or injury of the eye that would be expected from working on a military ship and standing in the sun, for long periods of time, without eye protection. A complete rationale should accompany each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms, treatment, and injuries, and that his reports of eye injury in service while standing watch on a military ship should be accepted as credible. 2. After the above development has been completed, readjudicate the claim for entitlement to service connection for a bilateral eye disability. If the benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. 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 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). ______________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs