Citation Nr: 1752829 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 17-38 996 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran had active service from September 1960 to September 1962. This matter came to the Board of Veterans' Appeals (Board) from a January 2017 rating decision. A notice of disagreement was filed in July 2017, a statement of the case was issued in July 2017, and a substantive appeal was received in July 2017. The Veteran testified at a Board hearing in August 2017; the transcript is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). 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). FINDING OF FACT The relevant evidence of record is at least in equipoise as to whether the Veteran's current tinnitus was manifested during his period of active service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 1133, 5107 (2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96. For veterans who have served 90 days or more on or after December 31, 1946, certain chronic diseases are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). Tinnitus is considered to be an organic disease of the nervous system. See Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995 (characterizing high frequency sensorineural hearing loss as an organic disease of the nervous system). Moreover, for chronic diseases under 3.309(a), an award of service connection is permissible based solely on continuity of symptomatology. Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestation of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). The Veteran claims tinnitus due to in-service noise exposure. His military occupational specialty (MOS) was armored crewman in the United States Army. 11/21/1969 Certificate of Release or Discharge From Active Duty. Based on the facts and circumstances of the Veteran's service, the Board finds that the evidence of record establishes that the Veteran had noise exposure during his active service consistent with the circumstances of such service. Additionally, there is post-service competent evidence of tinnitus. As such, the first two elements of service connection are established. See 12/29/2016 C&P Exam. Turning to the third element, a December 2016 VA examiner provided a negative etiological opinion pertaining to hearing loss and tinnitus. The examiner stated electronic hearing testing conducted at discharge shows the Veteran did not have a significant threshold shift beyond normal measurement variability while in service. Therefore the evidence of record shows the Veteran did not have hearing injury while in service. Thus, the examiner opined that the Veteran did not have hearing injury (injury to hearing sensitivity) while in service. The examiner also opined that delayed onset hearing loss due to noise exposure is unlikely to occur. In the absence of an objectively verifiable noise injury, the association between claimed tinnitus and noise exposure cannot be assumed to exist. At the December 2016 VA examination, the Veteran asserted that intermittent tinnitus may have begun while in service. At the August 2017 Board hearing, the Veteran testified that during service after he took a night firing where an excessive amount of bullets were shot, ringing in the ears began. 08/23/2017 Hearing Transcript at 7-9. Despite the fact that the Veteran submitted his claim for compensation over a half century after separation from service and there are no post-service treatment records regarding tinnitus, the Board finds the Veteran's lay assertions of tinnitus occurring during service to be consistent with his MOS in service. The Veteran is competent to attest to problems with ringing in his ears, to include when such ringing began, and the Board finds these assertions to be credible in this regard. The Board finds the evidence is in equipoise with respect to whether his tinnitus is related to his active service. Furthermore, the Board notes that in the case of chronic diseases under 38 C.F.R. § 3.309(a), service connection may be awarded solely based on continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). As indicated, tinnitus is considered an organic disease of the nervous system, and as such is an enumerated chronic disease. See 38 U.S.C.A. §§ 1101, 1112; Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health (Oct. 4, 1995); 38 C.F.R. §§ 3.307, 3.309. Accordingly, the Board finds that the third element of service connection has been established and service connection is warranted for tinnitus. ORDER Entitlement to service connection for tinnitus is denied. REMAND As detailed above, in-service noise exposure is conceded by the Board. A December 2016 VA examination reflects sensorineural hearing loss in both ears. The examiner proffered a negative opinion. The examiner stated electronic hearing testing conducted at discharge shows the Veteran did not have a significant threshold shift beyond normal measurement variability while in service. Therefore, the examiner opined that the Veteran did not have hearing injury (injury to hearing sensitivity) while in service. The examiner also opined that delayed onset hearing loss due to noise exposure is unlikely to occur. In August 2017, the Veteran testified that after service he worked as a foreman for a roofing company and would get teased because his workers would ask him for instructions and he would not respond because he was not able to hear. 08/23/2017 Hearing Transcript at 4. This occurred approximately a year after separation from service. Id. at 6. The Veteran testified that at age 26, in approximately 1964, he sought treatment because he could not hear and he was experiencing pain. Id. at 12. He recalls that the doctor told that him that he had lost hearing in both ears, more on the right side. Id. at 13. When he was 40, in the 1980's, he underwent an evaluation and was told he had "bad hearing." Id. at 15. He did not receive hearing aids at that time, stating that he was issued hearing aids approximately five years prior. Id. An addendum should be sought which considers the Veteran's lay contentions, to include his report of treatment and evaluation following service. On Remand, associate updated treatment records for the period from September 19, 2017. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Associate with the virtual folder updated VA treatment records for the period from September 19, 2017. 2. Request that the December 2016 VA examiner (or another qualified examiner if the December 2016 VA examiner is unavailable) review the virtual folder and offer an opinion as to whether it is at least as likely as not (a 50 percent or higher degree of probability) that bilateral hearing loss had its onset during service or is otherwise related to the Veteran's period of service, including established exposure to hazardous noise? Please provide a comprehensive rationale for the above answers. All pertinent evidence, including both lay and medical, should be considered. 3 After completion of the above, review the pertinent evidence of record and readjudicate the issue of entitlement to service connection for bilateral hearing loss. If the benefit sought is not granted in full, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The Veteran and his representative have 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 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). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs