Citation Nr: 1648376 Decision Date: 12/29/16 Archive Date: 01/06/17 DOCKET NO. 13-05 769 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Rachel Mamis, Associate Counsel INTRODUCTION The Veteran served in the Army from January 1968 to January 1970, to include service in the Republic of Vietnam. He was awarded the Combat Infantryman Badge among other decorations. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In his February 2013 VA Form 9, the Veteran requested a Board hearing via video conference. Subsequently, in a May 2015 Statement in Support of Claim, the Veteran canceled his hearing request. As the Veteran has not submitted any additional requests for another hearing, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(e) (2016). The issue of entitlement to service connection for a bilateral hearing loss 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 Veteran has tinnitus as a result of his service, to include noise exposure while serving in combat as an infantryman in Vietnam. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C.A. §§ 1110, 1154(b), 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION A. Legal Standard Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). VA has established certain rules and presumptions for chronic diseases. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Tinnitus is considered by VA to be a chronic disease. 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). B. Service Connection for Tinnitus The Veteran seeks service connection for tinnitus, which he contends originated in service. The Veteran's personnel records, as well as his Department of Defense Form 214, indicate he trained and served as an infantryman in the Army. VA recognizes that such a military occupational specialty (MOS) has a high probability of noise exposure. In addition, based on the Veteran's receipt of the Combat Infantryman Badge, his combat noise exposure is conceded. The issue then is whether the Veteran's tinnitus was caused by or is related to noise exposure during his active duty service. Because tinnitus is subjective it is a disorder with symptoms that can be identified through lay observation alone. Charles v. Principi, 16 Vet. App. 370, 374 (2002). While the Veteran's service treatment records (STRs) are negative for evidence of tinnitus, he contends he experienced tinnitus during service. In December 2009, a VA physician noted that the Veteran had tinnitus from noise exposure during his time in Vietnam without explaining the basis for that opinion. In February 2011, the Veteran underwent a VA audiological examination. Having reviewed the Veteran's claims file and performed an in-person examination, the VA examiner acknowledged the Veteran's reports of tinnitus. The examiner noted the Veteran's in-service noise exposure, but found that the Veteran's tinnitus was not related to his period of service. She noted that normal audiometric thresholds were present at enlistment as well as at the time of separation of service and also found no documentation of complaints or treatment for tinnitus during active duty. On that basis, the examiner found that the Veteran's tinnitus was less likely as not caused by or a result of his military noise exposure. The VA examiner opined that the Veteran's tinnitus was likely secondary to his hearing loss. The Board finds the examiner's rationale inadequate because she failed to consider the effect of the Veteran's MOS and conceded noise exposure in her analysis. In addition, the examiner did not account for an August 2010 statement by the Veteran that "I have had ringing in my ears since my discharge." See Lay Statement of the Veteran, dated August 2010. Likewise, at his February 2011 VA exam, the Veteran stated he has experienced tinnitus since service. As the Veteran's statements constitute reports of lay observable symptoms, the Board finds the Veteran competent to make these statements. In addition, these statements are found to be credible. However, the statements were not appropriately addressed in the adverse VA opinion. The Board has considered the medical and lay evidence of record. The Veteran has submitted consistent, competent, credible and probative statements regarding the onset of tinnitus. As tinnitus is a disability for which the Veteran is competent to identify, and the Board has found credible his statements of experiencing tinnitus during service and presently, the evidence establishes that a chronic disability was present during service and during the appeal period. See Charles, 16 Vet. App. at 374. Thus, service connection for tinnitus is warranted. See 38 C.F.R. § 3.303(b). The Board recognizes the February 2011 VA opinion does not support the notion that the tinnitus is due to his time in service; however, this opinion did not address the Veteran's own credible statements regarding the etiology and history of the tinnitus or the theory of whether the tinnitus was due to his conceded in-service noise exposure, and is, therefore, without significant probative weight. Service connection for tinnitus is warranted. See 38 C.F.R. § 3.303(b). ORDER Entitlement to service connection for tinnitus is granted. REMAND The Board finds additional development is required before the Veteran's claim for bilateral hearing loss is decided. The Veteran has been diagnosed with a bilateral hearing loss disability in accordance with 38 C.F.R. § 3.385. See February 2011 VA examination. As noted above, the Board has found the Veteran was exposed to excessive noise while serving as an infantryman, to include during combat in Vietnam. The Veteran also reported not wearing hearing protection while in service. Therefore, the central issue is whether a link can be established between the Veteran's current disability and his in-service noise exposure. In the February 2011 VA examination, the examiner noted the Veteran had normal hearing when he entered the military. Regarding post-service occupational noise exposure, the Veteran reported he worked for the U.S. Postal Service and denied civilian or occupational noise exposure. Following the examination, the examiner opined the Veteran's bilateral hearing loss was less likely as not caused by or a result of in-service noise exposure. She based her negative opinion on the fact that hearing was within normal limits in both ears at separation and unchanged compared to enlistment. Although the examiner noted the Veteran's exposure to acoustic trauma as a combat infantryman, she failed to consider and discuss this in her rationale. Instead, the examiner relied solely on the fact that hearing was within normal limits in both ears at separation and without change as compared with enlistment in offering the opinion adverse to the claim. As such, an additional medical opinion is necessary. On remand all relevant ongoing medical records should be obtained. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The AOJ should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's remaining issue on appeal, to include any more recent treatment records related to the claimed disability. If any requested records are not available the record should be annotated to reflect as much, and the Veteran must be notified in accordance with 38 C.F.R. § 3.159(e). 2. After completion of the above, an addendum medical opinion must be obtained. The Board notes that while hearing loss may not be shown in service or at separation from service, service connection can still be established if the evidence shows that it is actually due to incidents during service. The physician should offer an opinion as to whether the Veteran's hearing loss at least as likely as not (a 50 percent probability or greater) originated during his period of active service or is otherwise etiologically related to his active service, to specifically include his conceded military noise exposure. Another examination of the Veteran should be performed only if the physician providing the opinion deems it necessary. The examiner must provide a complete rationale for all proffered opinions. 3. Finally, the AOJ should re-adjudicate the issue on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. 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). ______________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs