Citation Nr: 1755034 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 12-09 270 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION The Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jeanne Celtnieks, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). This matter is before the Board of Veteran's Appeals (Board) on appeal of a July 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned in December 2015. In March 2016 the issues were remanded for further development to the RO. The RO denied the Veteran's recent claims for post-traumatic stress, neck condition, and shoulder strain in a rating decision of May 2017. Subsequently, the Veteran filed Notices of Disagreement (NOD) in May and September 2017. The Board will decline jurisdiction over these issues at this time. The RO has acknowledged the Veteran's most recent NODs by letters in June and October 2017 and has proceeded to take initial action in accordance with the provisions of 38 C.F.R. § 19.26(a). Accordingly, the Board will not remand these matters pursuant to the Court of Appeals for Veterans Claim's ruling in Manlincon v. West, 12 Vet. App. 238 (1999). The issue of 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 Veteran's tinnitus was incurred and is causally related to his active service. CONCLUSION OF LAW The criteria for service connection tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R.§ 3.303. The evidence must show (1) the existence of a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). For the disease explicitly recognized as "chronic" under 38 C.F.R. § 3.309 (a), the provisions of 38 C.F.R. § 3.303 (b) provide an alternative method of establishing the second and third elements through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As a disease of the nervous system, tinnitus is a chronic disease. See Fountain v. McDonald, 27 Vet. App. 258 (2015). Therefore, the theory of chronicity and continuity of symptomatology under 38 C.F.R. § 3.303 (b) is applicable in this case. Moreover, tinnitus is a disease which is capable of lay observation. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. Wood v. Derwinski, 1 Vet. App. 190 (1991); Washington v. Nicholson, 19 Vet. App. 362 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert V. Derwinski, 1 Vet. App. 49 (1991). The October 2016 audiology VA exam confirms a current diagnosis of tinnitus. The Veteran reported at the December 2015 Board hearing that he was exposed to acoustic trauma from noise in-service. Noise exposure came from his work in the motor pool and from his extensive use of firearms evidenced by his qualification as sharpshooter and expert rifleman. He also reported noise exposure because of his proximity to "giant" generators while on temporary duty in France. The Veteran stated that ringing in his ears began with and continued after his exposure to the noisy generators. The Veteran is competent to report his first hand experiences (noise exposure) and observable symptoms (ringing in his ears). The Board finds his testimony on the noise he experienced and his perceived tinnitus is credible. The Board finds that his testimony establishes an in-service event. The second element of service connection is met. With respect to the final element of service connection, a relationship or nexus between the current disability and the in-service event, the October 2016 VA examiner diagnosed tinnitus but offered the opinion that the likelihood the Veteran's tinnitus is related to his active service is less than 50 percent. The examiner based this opinion on his determination, which is contrary to the Board's finding above, that the Veteran did not experience tinnitus in-service. Without supplying a rational, the examiner found post-service noise exposure (work as a pilot and machinist, while generally wearing ear protection, and recreational hunting, while sometimes wearing ear protection) more significantly related to the current tinnitus. The facts relied on by the examiner are not supported by the record as he did not properly consider the Veteran's competent and credible lay evidence of tinnitus symptoms in service. Therefore, the Board does not find this medical opinion has probative value with respect to the etiology of the Veteran's tinnitus. The only medical evidence that addresses the etiology of the Veteran's tinnitus is the October 2016 VA medical opinion which has no probative value. The remaining competent and credible evidence addressing the etiology of the Veteran's tinnitus is his lay testimony establishing in-service onset of tinnitus and continuity of symptomatology after service. Accordingly, after resolving any reasonable benefit of the doubt in favor of the Veteran, the Board finds that entitlement to service connection for tinnitus is warranted. ORDER Entitlement to service connection for tinnitus is granted. REMAND In May 2016 the Board remanded the issue of bilateral hearing loss to the RO for additional development. The Board required the Veteran have an additional audiology examination. The October 2016 examiner, in part, supported his opinion (that hearing loss was 50 percent or less likely related to service) on the absence of hearing loss at the Veteran's separation examination. The Board's May 2016 remand specifically stated "absence of documented hearing loss at separation from service" is not fatal to a claim of service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The October 2016 examiner dismissed the Veteran's statements describing his perceived hearing loss in-service and stated "the record just does not support the Veteran's claim." No rationale for discounting these recollections was provided. The May 2016 remand, citing Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), instructed the Veteran is competent to report hearing problem during service. The October 2016 examiner also appeared to support his opinion by finding that the Veteran's post-service noise exposure was more significant than his in-service noise exposure. However, the Veteran's medical records include a comment in a September 2015 outpatient note that states because the Veteran is right handed, it "would be difficult to attribute his predominantly left ear hearing loss to hunting (which would cause a greater loss in his right ear)." The auditory testing of October 2016 supports the primary care provider's assertion that the Veteran has experienced slightly greater hearing loss in the left ear. Moreover, the October 2016 examiner did not provide detail or rationale explaining his choice to attribute the current hearing loss to post-service noise exposure vs. in-service noise exposure. For the reasons above the Board finds the October 2016 VA examination is inadequate and remand is required for another VA examination and opinion regarding the etiology of the Veteran's current hearing loss. Accordingly, the issue is REMANDED for the following actions: 1. Schedule the Veteran for a VA audiological examination. The examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any current hearing loss was incurred in service, to specifically include whether it is the result of exposure to acoustic trauma during the Veteran's military service. The examiner must specifically acknowledge and discuss the Veteran's reports that he noticed his hearing loss first manifested during his period of service, and has continued since service. If the examiner does not accept these reports, he or she must provide a rationale for why the report is discounted. Simply observing that such complaints are not noted in the service treatment records will be deemed an inadequate rationale. If the examiner attributes the current hearing loss disability to post-service noise exposure rather than in-service noise exposure, he or she must provide a rationale for this finding. 2. Readjudicate the appeal. If the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. The Veteran 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). ____________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs