Citation Nr: 1716167	
Decision Date: 05/12/17    Archive Date: 05/22/17

DOCKET NO.  12-11 900	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for tinnitus. 

2.  Entitlement to service connection for bilateral hearing loss. 


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Sara Schinnerer, Counsel





INTRODUCTION

The Veteran served on active duty with the Army from December 1965 to December 1967.

This appeal comes before the Board of Veterans' Appeals (Board) from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

The record before the Board consists solely of the Veteran's electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). 

The issue of entitlement to service connection for bilateral hearing loss is addressed in the REMAND that follows the below ORDER.


FINDING OF FACT

The Veteran's current tinnitus cannot be reasonably disassociated with his active duty service.


CONCLUSION OF LAW

The criteria for establishing entitlement to service connection for tinnitus have been met.  38 U.S.C.A. §§ 1110, 5107A, 5107 (West 2014); 38 C.F.R. § 3.303 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

As a preliminary matter, the Board notes that the Veteran has been provided all required notice.  In addition, the evidence currently of record is sufficient to substantiate his claim of entitlement to service connection for tinnitus.  Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2014) or 38 C.F.R. § 3.159 (2016).

Legal Criteria

Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  

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 (2016); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  

To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Analysis

The Veteran contends that his current tinnitus began during active service.  Specifically, he asserts that he was exposed to acoustic trauma coincident to his duties as a radio operator in the Airborne Division of the United States Army.  He further reported that he experienced ringing in his ears since active service in 1966.  In this regard, the Veteran's service personnel records demonstrate that he completed basic airborne training, received his parachute badge, and serviced as a radio technician.    

Service treatment records include the report of a December 1965 induction examination, which is negative for complaints, treatment, or a diagnosis of tinnitus.  
The report of a November 1967 separation examination is negative for a diagnosis of tinnitus. 

Post-service records include a February 1999 VA outpatient treatment record that notes the Veteran's complaint of tinnitus and the examiner's finding that "tinnitus complaints are consistent with cochlear pathology."  A January 2001 private treatment record notes the Veteran reported tinnitus while being treated for a fall from a cherry tree.  An April 2009 private record documents the presence of tinnitus. 

A December 2009 statement from D.J., a friend whom indicated that he knew the Veteran for 59 years, reported that he did not notice any problems with the Veteran's hearing prior to the Veteran's service.  However, after the Veteran's service, D.J. stated that there was a "definite difference." 

A December 2009 statement from L.H. noted that "after being released from the Army, [the Veteran] has had considerable hearing loss and ringing in the ears, which has gotten worse over time." 

The report of a May 2010 VA examination notes the Veteran's report of exposure to loud noise during service as a result of his duties as a radio operator in the Airborne Division.  The VA examiner noted that in-service noise exposure was conceded.  The Veteran also reported post-service occupational noise exposure due to jobs as an electrician and working in the construction field.  The Veteran stated that he experienced constant tinnitus.  The examiner diagnosed tinnitus.  The examiner found that the Veteran's current tinnitus was not due to noise exposure during active service; however, he also stated that it could not be determined if the tinnitus was due to the Veteran's post-service occupational and recreational noise exposure.  

The report of a March 2015 addendum VA opinion includes the examiner's finding that the current tinnitus was less likely due to the Veteran's active service.  In providing this opinion in pertinent part, the examiner noted that there was no evidence of constant pathological tinnitus in the Veteran's service treatment records or thereafter.  The examiner also found that the date of onset for the Veteran's tinnitus does not match his active duty service. 

The Board finds the May 2010 VA examination and March 2015 VA opinion inadequate for adjudication purposes.  In this regard, the examiner failed to acknowledge the lay assertions of record regarding the Veteran's in-service noise exposure and ringing in his ears since that time.  Such statements are competent evidence regarding his in-service noise exposure and observable symptoms that he experienced ever since military service.  See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Charles v. Principi, 16 Vet. App. 370 (2002).  Moreover, although the Veteran's service treatment records are silent for any complaints, treatment, or diagnoses of tinnitus; the Board cannot reject lay evidence simply because it is not accompanied by contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1371 (Fed. Cir. 2007).  Further, as above, the post-service treatment records notes the Veteran consistently reported tinnitus, even when he was treated for unrelated health issues. Accordingly, the May 2010 and March 2015 VA opinions are of no probative value.  

In sum, the Veteran's history of noise exposure in service is consistent with his service as a radio operator in the Airborne Division, and his statements as to the onset of his tinnitus are competent and credible evidence.  Tinnitus is a subjective sensation, which lay evidence is competent to describe, to include the time of onset.  In addition, the Veteran has presented credible written statements regarding his in-service incurrence of noise exposure and tinnitus.  Accordingly, service connection for tinnitus is warranted.  See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).







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ORDER

Service connection for tinnitus is granted. 


REMAND

Additional development is required before the remaining issue on appeal is adjudicated; specifically, another VA medical opinion is necessary, for the reasons discussed below.  

The Veteran contends that his current bilateral hearing loss disability is due to active service, coincident to his duties as a radio operator in the Airborne Division of the United States Army.

When the Board last reviewed the case in January 2014, it found the May 2010 VA examiner's opinion to be inadequate, particularly because the examiner's negative nexus opinion was based upon a finding of hearing within normal limits at separation from service.  In addition, the examiner did not discuss the conversion of the December 1965 induction examination findings to the ISO-ANSI standards, or at the very least confirm that such conversion took place.  The opinion did not address the theory of delayed or latent onset of hearing loss.  Further, the requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimants period of active military service in order for service connection to be granted.

In a March 2015 VA addendum opinion, a VA examiner found the Veteran's current bilateral hearing loss disability was not related to his active service, due in significant part, to the absence of hearing loss at separation from service.  The examiner indicated that he considered the Veteran's induction examination in its converted ISO-ANSI form; however, he found that there was not a significant threshold shift in the Veteran's hearing acuity upon separation.  The examiner concluded that the Veteran's current hearing loss was "flat" in audiometric configuration, which was not consistent with cochlear damage due to noise exposure.  The examiner, however, did not discuss the January 2001 VA outpatient treatment record that included an assessment of bilateral nosocusis secondary to the Veteran's reported history of military noise exposure and occupational noise in construction, as per the aforementioned remanded directives.  Further, the examiner failed to address the Veteran's statements dated in April 1998, noting that he experienced hearing loss for a long time, and in November 2009, when he indicated that his hearing loss began during active service in 1966.  Lastly, the examiner did not address the lay statements of record submitted by D.J. and L.H., which noted that they observed a difference in the Veteran's ability to hear post active duty service. 
As there has not been substantial compliance with the January 2014 remand directives, the case must be remanded again.  Stegall v. West, 11 Vet. App. 268 (1998).

Further, development to obtain any outstanding medical records pertinent to the Veteran's claim should be completed.  

Accordingly, the case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions:

1.  The RO or the AMC should undertake appropriate
development to obtain any outstanding records pertinent to the Veteran's claim.  If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e).

2.  Once the record is developed to the extent possible, all pertinent evidence of record should be made available to and reviewed by the examiner who rendered the March 2015 opinion, if available.

The examiner should review the entire record, including service treatment records.  

Based on review of the record, the examiner should state a medical opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the Veteran's currently diagnosed bilateral hearing loss disability originated during service or is otherwise etiologically related to the Veteran's active service.  In this analysis, the examiner must discuss: 

* The theory of delayed or latent onset of hearing loss.  
* The January 2001 VA outpatient treatment record that included an assessment of bilateral nosocusis secondary to the Veteran's reported history of military noise exposure and occupational noise in construction.
* The Veteran's statements dated in April 1998, noting that he experienced hearing loss for a long time, and in November 2009, when he indicated that he hearing loss began during active service in 1966.
* Lay statements dated in December 2009 submitted by D.J. and L.H., which note their observations regarding the difference in the Veteran's ability to hear post versus prior to active duty service. 

For purposes of the opinions, the examiner should assume that the Veteran is a credible historian.  If the examiner is unable to provide any required opinion, the examiner should explain why.  If the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so.  If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed.

If the prior examiner is unavailable, all pertinent evidence of record should be made available to and reviewed by another medical professional with sufficient expertise who should be requested to provide the required opinions with supporting rationale.

Another examination of the Veteran should only be performed if deemed necessary by the person providing the opinions.

3.  The RO or the AMC should also undertake any additional development deemed necessary.  

4.  Then, the RO or the AMC should readjudicate the Veteran's claim.  If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is recertified for further appellate action.

By this remand, the Board intimates no opinion as to any final outcome warranted.

The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).

This REMAND 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).





______________________________________________
B. MULLINS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs