Citation Nr: 1757095 Decision Date: 12/11/17 Archive Date: 12/20/17 DOCKET NO. 14-14 878 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for bilateral tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1976 to March 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The issue of entitlement to service connection for 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 Resolving all doubt in his favor, the Veteran's tinnitus is related to his active military service. CONCLUSION OF LAW Tinnitus was incurred in active duty. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks to establish service connection for tinnitus, essentially arguing that he has experienced tinnitus since his exposure to noise as an engineer during service. The record reflects that the Veteran has been provided all required notice in this matter, to include notice with respect to the effective-date and disability-rating elements of this claim. See 38 C.F.R. § 3.159; Dingess v. Nicholson, 19 Vet. App. 473 (2006). The evidence currently of record is also sufficient to substantiate the Veteran's claim. No further development is required under 38 U.S.C.A. §§ 5103, 5103A or 38 C.F.R. § 3.159. On his April 2014 Substantive Appeal, the Veteran reported that he had tinnitus that started in service but became near constant around 2005 or 2006. The Board notes that the Veteran was discharged after more than a decade of service in March 1988 and filed his claim for service connection in August 2012. The Board also points out that the Veteran's service personnel records document that the Veteran's military occupational specialty (MOS) was engineer. Furthermore, the Veteran was awarded the Expert Pistol Shot Medal and the Rifle Marksmanship Ribbon. As such, the Board accepts the Veteran's assertions of significant in-service noise exposure as consistent with the circumstances of his service. See 38 U.S.C.A. § 1154(b). The Board further notes that the Veteran is competent to diagnose tinnitus, i.e., ringing of the ears, on the basis of his own lay assertions. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (noting that lay evidence is competent with regard to facts perceived through the use of the five senses). See also Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify as to ringing in the ears (tinnitus); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377, Note 4 (fed. Cir. 2007) (holding that sometimes a layperson will be competent to identify a medical condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer, and remanding to the Board to decide whether lay evidence was competent and sufficient to establish a shoulder dislocation); see also Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (holding that the Veteran's lay testimony is competent to establish the presence of varicose veins); cf. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (noting that, unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). The Veteran has stated that he suffers from tinnitus, and it was typically near constant while in service, during and after deployment. It would typically recur after other noise exposure, or when the Veteran was tired or fatigued. Given the statements from the Veteran, the Board finds that the Veteran's assertions of tinnitus dating back to active service are credible. Thus, the Veteran's statements, combined with his significant in-service noise exposure as an engineer and from training with firearms, establish continuous and chronic symptoms such as to enable a grant of service connection for tinnitus. The Board acknowledges that the October 2012 VA examiner opined that the Veteran's tinnitus was related to his hearing loss, but his hearing loss was not related to service. However, for reasons discussed below, the Board finds that the examination is inadequate. Accordingly, resolving the benefit of the doubt in the Veteran's favor, the Board finds that the criteria for service connection for tinnitus are met. 38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303 (2016). ORDER Service connection for tinnitus is granted. REMAND Regrettably, a remand is necessary for further evidentiary development of the Veteran's appeal. The Veteran received a VA audiological examination in October 2012, and the Veteran reported noise exposure from ship noise and engines while in service. The examiner reviewed the Veteran's file and found that the Veteran's hearing was within normal limits at induction and at separation. The examiner noted evidence of noise exposure in service and after service, but found that given the lack of threshold shift in service, it was not likely that the hearing loss was related to the acoustic trauma while in service. The Board finds that the VA examination report is inadequate. First, the existence of a shift or demonstrable hearing loss during active service is not required for a positive nexus opinion. Indeed, Hensley v. Brown, 5 Vet. App. 155, 159 (1993), held that service connection for hearing loss is not precluded where such hearing loss first met VA's definition of disability after service. In fact, the Court stated that the Veteran could have normal findings at separation and service connection could still be established. Id. at 159. Thus, if normal hearing at separation does not preclude service connection, it is clear that the lack of any threshold shift would also not act as a barrier. The Veteran's file also reflects that he was awarded medals indicative of exposure to firearm noise, and the examiner did not consider these experiences and whether hearing loss was consistent with them. The VA examiner merely noted that there was not a clinically significant threshold shift in the Veteran's ears during service, and did not make specific reference to the Veteran's firearm noise exposure in service or the fact that the Veteran experienced no significant post-service noise exposure. Id. Therefore, based on all of the foregoing, the Board finds that the Veteran should be provided a new examination and opinion by another appropriate examiner with respect to the etiology of his current bilateral hearing loss. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records from September 2012. 2. Schedule the Veteran for a VA audiological examination by an appropriate examiner other than the October 2012 VA examiner to determine the current severity and etiology of the Veteran's bilateral hearing loss. The examiner is requested to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the diagnosed hearing loss is due to an event or incident of the Veteran's period of active service. The examiner should take into account the Veteran's noise exposure in service outside of his MOS, as evidenced by his Expert Pistol Shot Medal and the Rifle Marksmanship Ribbon, and the lack of significant post-service noise exposure. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Following any additional indicated development, the AOJ should review the claims file and readjudicate the Veterans claim for service connection for hearing loss. If the benefits sought on appeal remain denied, the Veteran should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The appellant has 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). ______________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs