Citation Nr: 1753230	
Decision Date: 11/20/17    Archive Date: 12/01/17

DOCKET NO.  14-03 874	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1. Entitlement to service connection for bilateral hearing loss. 

2. Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. Mac, Counsel



INTRODUCTION

The Veteran served on active duty from August 1984 to September 1986. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in January 2013 by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied the Veteran's claims of entitlement to service connection for bilateral hearing loss and tinnitus and entitlement to a total disability rating based on individual unemployability.  See also the codesheet associated with the January 2013 rating decision.  In February 2013, the Veteran filed a notice of disagreement as to the denial of his claims for service connection for bilateral hearing loss and tinnitus and perfected an appeal regarding these two issues.  

In July 2015, the Board remanded the issues for the Veteran to be scheduled for a videoconference Board hearing.  A report of contact in March 2016 shows that the correctional facility where the Veteran was incarcerated was unable to connect for a videoconference Board hearing.  A report of contact in April 2016 shows that the Veteran's correctional facility could not transport him to VA for a Board hearing.  

In April 2016 VA sent the Veteran a letter notifying him that his correctional facility could not accommodate a videoconference Board hearing nor transport him to attend the Board hearing.  Thus the Veteran was informed that his request for a Board hearing could not be accommodated.  However, the Veteran was advised that he and his representative could submit a written statement/argument to the Board or that his representative may submit a motion to appear alone before the Board to present argument on the Veteran's behalf.  The Veteran was advised that, if he did not reply within 30 days, his appeal will be considered in docket order.  The Veteran did not reply to the April 2016 letter, and therefore these issues are properly before the Board.  

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 evidence is in equipoise as to whether the Veteran's tinnitus is related to his service.  

CONCLUSION OF LAW

The criteria for service connection for tinnitus are met.  38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a).  In light of the favorable determination to grant service connection for tinnitus, the only matter being decided herein, VA's duties to notify and assist are deemed fully satisfied.  There is no prejudice to the Veteran in proceeding to decide the issue.

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. 
§  1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease initially diagnosed after 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).  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).  

Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as "chronic" in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period).  Where there is evidence of acoustic trauma, tinnitus is also considered a "chronic disease" under 38 C.F.R. § 3.309(a) for presumptive service connection purposes.  See Fountain v. McDonald, 27 Vet. App. 258 (2015) (holding that where there is evidence of acoustic trauma, the presumptive provisions of 38 C.F.R. § 3.309(a) include tinnitus as an organic disease of the nervous system).

The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show.  The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).  The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran. 

Considering the claim for service connection for tinnitus, in light of the record and the governing legal authority, the Board finds that the evidence is in equipoise on the question of a nexus.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

First, the evidence shows that the Veteran has tinnitus as he has complained of ringing in his ears.  See January 2012 statement received in May 2012 and Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that lay testimony may establish the presence of tinnitus because ringing in the ears is capable of lay observation).

Second, the Veteran's service treatment records include an examination upon separation from service whereby the examiner noted that there was low frequency hearing loss in the right ear.  A report of medical history upon separation from service shows that at that time the Veteran indicated having ear problems.  

In January 2012 the Veteran reported that the ringing in his ears started in service.  He explained that the ringing started with mishaps on the grenade training grounds and throughout service it continued to increase in severity.  The Veteran also stated that during service he was exposed to acoustic trauma from horns and heavy equipment that contributed to his condition.  His DD-214 shows that during service his military occupational specialty was that of a food specialist and that he received the Army Service Ribbon/Marksman (M-16 Rifle) Badge.  Under 38 U.S.C.A. § 1154(a), due consideration shall be given to the places, types, and circumstances of the Veteran's service as shown by his service record and all the medical and lay evidence.  Thus, his report of in-service acoustic trauma is conceded as it is consistent with noise from rifles and food equipment.  

The Board finds that the Veteran's report of ongoing tinnitus since service to be competent, credible, and probative of the presence of in-service noise exposure and tinnitus during service.  See Charles; Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996).  Thus, the evidence at least is in relative equipoise on the question of a nexus pursuant to 38 C.F.R. § 3.303(b) between the Veteran's service and his current tinnitus.  

Therefore, considering the totality of the evidence, the Board resolves all reasonable doubt in favor of the Veteran and grants service connection for tinnitus.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  


ORDER

Service connection for tinnitus is granted.


REMAND

The Court of Appeals for Veteran Claims (Court) has long held that incarcerated veterans are entitled to the same care and consideration given to their fellow veterans.  See Bolton v. Brown, 8 Vet. App. 185, 191 (quoting Wood v. Derwinski, 1 Vet. App. 190 (1991)).  Moreover, the Court has cautioned that "those who adjudicate claims of incarcerated veterans to be certain that they tailor their assistance to the peculiar circumstances of confinement." Id.  
In the instant case, the Veteran failed to report for his November 2012 audiological examination due to his incarceration.  The evidence shows that the Veteran's prior correctional facility could not accommodate incarcerated veterans for VA audiological examinations, due to the location of the audiological clinic in the hospital, nor did it have the equipment needed to perform the examinations onsite.  In a brief in September 2017, the Veteran's representative requested that the Board remand the issue of entitlement to service connection for bilateral hearing loss to see if the Veteran could be examined at the correctional facility where he is currently incarcerated.  

Accordingly, the case is REMANDED for the following action:

1. Confirm with the Veteran's representative the name and address of the Veteran's current incarceration facility.  If it is different from the address of the facility currently of record with VA, the address of the current facility should be obtained and associated with the file.  

2. Afterwards, schedule the Veteran for a VA audiometric examination to determine the nature and etiology of any hearing loss that he may have.  The electronic claims folder must be available for review.  If the Veteran meets the criteria for a hearing loss disability for VA purposes, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that it is related to in-service noise exposure. 

In making this determination, the examiner should consider the Veteran's lay assertions as to his hearing loss beginning during his period of active duty and continuing thereafter.

If the VA audiological examination cannot be conducted due to the Veteran's incarceration, the RO should provide documentation of its attempts to obtain the examination, including any coordinating efforts with prison medical staff in accordance with applicable VA protocols.  See Adjudication Procedure Manual, M21-1, III.iv.3.F.2.d.

3. Finally, after completing the above actions and any other development deemed necessary, readjudicate the issue of entitlement to service connection for bilateral hearing loss.  If the benefit sought is not granted, the Veteran and his representative must be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity to respond before the file is returned to the Board for further review.  

No action is required of the Veteran until he is notified by VA.  However, he is advised of his obligation to cooperate in ensuring that the duty to assist is satisfied.  Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991).  His failure to help procure treatment records, and his failure to report for a scheduled VA examination, may impact the determination made.  38 C.F.R. § 3.655 (2017).  He is advised that he has the right to submit additional evidence and argument, whether himself or through his representative, with respect to this matter.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  It must be afforded prompt treatment.  The law indeed requires that all remands by the Board or the Court be handled in an expeditious manner.  38 U.S.C.A. §§ 5109B, 7112 (West 2014).  




______________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs