Citation Nr: 1752217 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 14-04 802 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Yacoub, Associate Counsel INTRODUCTION The Veteran had active service from October 1971 until October 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The issue of entitlement to service connection for tinnitus is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Bilateral hearing loss disability is etiologically related to acoustic trauma sustained in active service. CONCLUSION OF LAW Bilateral hearing loss disability was incurred in active service. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran asserts that he has bilateral hearing loss as a result of acoustic trauma sustained in active service. Specifically, the Veteran reports that he has experienced difficulty hearing and understanding people since active service. He described in-service noise exposure due to being in the infantry and around firing weapons and artillery. In addition, the Veteran stated that he had negligible noise exposure after service, and denied recreational noise exposure. A review of the Veteran's DD Form 214 shows a military occupational specialty (MOS) of Military Policeman. The Veteran's MOS indicates he was frequently around weapons. Therefore, the Board concedes that the Veteran's sustained acoustic trauma during active service. Service treatment records (STRs) are silent for complaints of, treatment for, or diagnosis of bilateral hearing loss disability while the Veteran was in active service. In June 1974, the Veteran was afforded an in-service examination. Results of audiometric testing did not demonstrate bilateral hearing loss for VA compensation purposes. However, review of audiometric testing results from examination at enlistment in October 1971, reflects that the Veteran's hearing acuity decreased during service. In addition, the Veteran has stated that he first experienced symptoms of hearing loss during and immediately following active service, and that his symptoms have continued since that time. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). The Board finds the Veteran to be credible in his reports regarding the onset and symptomatology of his hearing loss. On VA examination in November 2011, the Veteran was shown to have bilateral sensorineural hearing loss for VA compensation purposes. See 38 C.F.R. § 3.385. The examiner opined that the Veteran's hearing loss was less likely than not related to noise exposure during service, as the Veteran's audiometric testing results at discharge were within normal limits. The examiner did not address the slight decrease in hearing acuity demonstrated in the Veteran's STRs. The Board finds that the November 2011 VA opinion is inadequate with regard to the etiology of the Veteran's bilateral hearing loss disability. First, the absence of documentation of treatment for, or complaints of hearing loss during and after service cannot serve as the basis of a negative etiology opinion. In addition, the VA examiner did not adequately consider the Veteran's lay statements regarding symptomatology or address the significance of the documented decrease in his hearing acuity during service. As the VA opinion is inadequate, it cannot serve as the basis of a denial of entitlement to service connection. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, the Veteran is competent to identify decreased hearing acuity, and his statements in this regard are credible. In sum, the Veteran has a current diagnosis of bilateral hearing loss disability for VA compensation purposes, and the Board concedes that the Veteran sustained acoustic trauma during active service. The Veteran has also competently and credibly reported that he first experienced hearing loss during service and that it has continued since that time. While there is a medical opinion of record indicating that the Veteran's current bilateral hearing loss disability is not related to his noise exposure in active service, that opinion is inadequate and therefore cannot serve as the basis of a denial of entitlement to service connection. Accordingly, the Board finds that the evidence for and against the claim of entitlement to service connection for bilateral hearing loss disability is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran, and entitlement to service connection for bilateral hearing loss disability is warranted. 38 U.S.C. § 5107(b) (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for bilateral hearing loss is granted. REMAND An April 2012 rating decision denied service connection for tinnitus. In November 2012, the Veteran filed a notice of disagreement. The Veteran referred to his hearing impairment generally while in service and stated that his hearing was not intact upon leaving service. In his February 2014 formal appeal to the Board, the Veteran stated that he had ringing in his head after hearing a rifle fired which contributed to his hearing loss disability. Furthermore, in a statement submitted by the Veteran's representative in September 2017, the Veteran's representative repeatedly addressed ringing in the Veteran's ears. No statement of the case addressing this claim has been issued. Therefore, the Board is required to remand the claim for issuance of a statement of the case. Manlicon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: Issue a statement of the case addressing the issue of entitlement to service connection for tinnitus. Notify the Veteran that he must submit a timely substantive appeal to perfect an appeal of the claim. If a timely substantive appeal is received, return the case to the Board. The appellant 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. §§ 5109B, 7112 (2012). ______________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs