Citation Nr: 1641634 Decision Date: 10/27/16 Archive Date: 11/08/16 DOCKET NO. 11-17 579 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to November 1970. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio (RO). The Veteran was scheduled for an August 2016 Board video conference hearing. Prior to the hearing, in August 2016 correspondence, the Veteran indicated that he wished to withdraw his hearing request. Accordingly, his hearing request has been withdrawn. 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). FINDINGS OF FACT 1. The Veteran had hazardous noise exposure in service. 2. The Veteran experienced symptoms of tinnitus in service and since service separation. 3. Tinnitus is etiologically related to service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2015); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2016). Because this decision constitutes a full grant of the benefits sought on appeal with regard to the claim for service connection for tinnitus, no further discussion regarding VCAA notice or assistance duties is required. Service Connection Law and Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §1110; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Tinnitus is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303(b) apply to this claim. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). The Veteran contends that tinnitus is related to combat noise exposure in service. After a review of the evidence, lay and medical, the Board finds, resolving all reasonable doubt in the Veteran's favor, that tinnitus was incurred in service. The Board finds that the Veteran was exposed to hazardous noise in service. During a July 2010 VA examination, he identified combat noise exposure in Vietnam, including noise from mortars, gunfire, explosions and bombs. The Veteran's DD Form 214 reflects a Military Occupational Specialty (MOS) of "Armor Crewman." Service personnel records also identify duties in light weapons infantry. An August 2016 letter from the Department of the Army, Awards and Decorations Branch, indicates that the Veteran was assigned to an infantry unit in Vietnam, and that his MOS was related to infantry. The Duty MOS Noise Exposure Listing for Modifying the Development Process in Claims for Hearing Loss and/or Tinnitus shows that veterans with a duty MOS similar to that of the Veteran's, "Armor Crewman and Infantryman," have a high probability of exposure to hazardous noise. See M21-1, III.iv.4.B.3.d. The Veteran is competent to describe noise exposure in service, and the Board finds that his statements, describing combat noise exposure related to his infantry duties are credible. Resolving reasonable doubt in the Veteran's favor, the Board finds that he had hazardous noise exposure in service. The Board finds that the Veteran has also identified some degree of post-service occupational and recreational noise exposure. During the July 2010 VA examination, the Veteran reported occupational exposure to noise while working as a concrete truck driver for 22 years, and noise related to his work in equipment rental for three years. Additionally, the Veteran reported recreational noise exposure to motorcycles for 15 years. The Board finds that the Veteran experienced symptoms of tinnitus in service and since service separation. The Veteran reported during the July 2010 VA examination that his tinnitus began in Vietnam. Additionally, during a March 2010 VA audiology consultation, he reported having constant, bilateral, buzzing tinnitus for the past 40 years. The Board finds that the Veteran's statements are credible, and his report of experiencing tinnitus symptoms both in service and, continuously, post-service is consistent with the Board's finding of exposure to acoustic trauma in service. While the July 2010 VA authorized examiner opined that tinnitus was not caused by or a result of military noise exposure, he reasoned that service treatment records did not contain record or complaint of tinnitus, and that tinnitus was consistent with hearing loss and/or a standard threshold shift on audiograms in service, and neither was present at separation. The VA examiner, however, did not address the Veteran's report of having an onset of tinnitus symptoms in service, and persistent symptoms for 40 years post-service. Additionally, the Veteran contends in his August 2010 notice of disagreement that no true audiological examination was conducted at separation in June 1970, that this was supported by the fact that the separation audiogram included nothing but zeros, and that this would indicate that his hearing improved from his entrance examination to his separation examination. He questioned how hearing could improve after combat. The Board finds, in this case, that it is not clear that the audiometric findings recorded at separation are valid given the decrease in pure tone threshold levels shown from the October 1967 enlistment audiogram, and the fact that pure tone thresholds were reported at 0 HERTZ in all frequencies in the June 1970 separation audiogram. Additionally, no graphical audiogram was associated with the findings recorded at separation. The Board finds that the July 210 VA examiner relied heavily on findings recorded at discharge in rendering the opinion; however, because there is some question as to the validity of those findings, the Board finds that the VA opinion is of little probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The Board finds that the Veteran is competent and credible to identify hazardous noise exposure in service, and to identify tinnitus symptoms present both in service and since service separation. Resolving reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for tinnitus. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for tinnitus is granted. REMAND Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2016). The Veteran and his representative contend in a September 2016 Informal Hearing Presentation that a July 2010 VA opinion is inadequate and that a remand for an adequate medical opinion is warranted. While the VA examiner opined that hearing loss was not caused by or a result of military noise exposure, the examiner reasoned that the Veteran had normal hearing acuity at both entrance and separation, and that a separation audiogram did not reveal a standard threshold shift in hearing in either ear. The Veteran contends, however, in an August 2010 notice of disagreement and in the September 2016 statement that no true audio examination was conducted at separation in June 1970. The Board finds, in this case, that it is not clear that the audiometric findings recorded at separation are valid given the decrease in pure tone threshold levels shown from the October 1967 enlistment audiogram (which are presumed to have been reported in standards set forth by the American Standards Association (ASA)) to the June 1970 separation audiogram, and the fact that pure tone thresholds were reported a 0 HERTZ in all frequencies in the June 1970 separation audiogram. Accordingly, the Board finds that a remand for a supplemental medical opinion is warranted, based on the assumption that findings from the June 1970 separation audiogram are invalid. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (interpreting that 38 C.F.R. § 3.385 does "not serve as a bar to service connection" where there is an absence of results of an in-service audiometric examination capable of being compared with the regulatory pure tone and speech recognition criteria). Accordingly, the case is REMANDED for the following action: 1. The AOJ should refer the case for a supplemental VA audiological opinion regarding service connection for bilateral hearing loss. Another examination is not required; however, if the examiner indicates that he or she cannot respond to the Board's question without examination of the Veteran, an examination should be afforded the Veteran. The record should be made available for review in connection with this request. The Veteran contends that a true audiological examination was not conducted at separation. Assuming that the findings from the June 1970 separation audiogram are invalid, the VA audiology examiner should offer a supplemental opinion addressing the etiology of hearing loss, with consideration of credible lay evidence showing that the Veteran was exposed to hazardous noise from mortars, gunfire, explosions, and bombs in relation to his duties as an armor crewman and light weapons infantryman in service. In providing the opinion, the VA examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that currently diagnosed hearing loss began during service or is otherwise linked to noise exposure in service? The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The VA examiner should provide a rationale for his or her opinion with reference to the evidence of record and should provide a discussion of the facts and medical principles involved. 2. After all development has been completed, the AOJ should review the case again based on the additional evidence. If the benefits sought are not granted, the AOJ should furnish the Veteran and his representative with a Supplemental Statement of the Case, and should give the Veteran a reasonable opportunity to respond before returning the record to the Board for further review. The Veteran 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 2015). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs