Citation Nr: 1759448 Decision Date: 12/21/17 Archive Date: 12/28/17 DOCKET NO. 14-17 802 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for bilateral tinnitus. 2. Entitlement to service connection for right ear hearing loss. 3. Entitlement to service connection for residuals of an allergic reaction to penicillin. 4. Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Ashley Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1976 to July 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In that decision, the RO denied entitlement to service connection for bilateral tinnitus, right ear hearing loss, residuals of an allergic reaction to penicillin (characterized as a penicillin reaction, severe), and a low back disability. In October 2013, the Veteran testified at a hearing before a Decision Review Officer (DRO). In March 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. Transcripts of the hearings have been associated with the claims file. In an August 2015 rating decision, the RO granted service connection for status post Bennett fracture of the right thumb carpal metacarpal joint, healed (claimed as right thumb injury), which had previously been on appeal after being denied by the RO's August 2011 rating decision. As the Veteran has not timely appealed either the evaluation or effective date assigned to this disability, this matter is not before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The issues of entitlement to service connection for right ear hearing loss, entitlement to service connection for residuals of an allergic reaction to penicillin, and entitlement to service connection for a low back disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's tinnitus is related to in-service noise exposure. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1131, 5103, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)(2017). As the Board is granting the benefit sought in full for the claim of entitlement to service connection for tinnitus, further discussion of the VCAA is unnecessary. II. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Where a veteran served 90 days or more during a period of war or after December 31, 1946, and certain chronic diseases become manifest to a degree of l0 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Although tinnitus is not a chronic disease, listed in section 3.309(a), that is subject to service connection based upon a showing of continuity of symptomatology (see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)), as explained below, lay assertions as to the existence, and continuity of symptoms, of tinnitus, or ringing in the ears, is considered competent evidence of such. Here, the Veteran reports that he experiences constant ringing in his ears and a June 2011 VA examination report documents recurrent tinnitus. See DRO hearing transcript dated October 2013. To this end, tinnitus is a disability for which a lay person may offer a competent diagnosis. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (holding that ringing in the ears is capable of lay observation). Hence, a current disability has been demonstrated. Here, the Veteran contends that he incurred tinnitus due to noise exposure during his military service. See, e.g., Board hearing transcript dated March 2017. Specifically, he asserts that he was exposed to loud radio equipment noise, weaponry, and grenades while he was stationed in Germany as a communications specialist. He explains that during the course of his military occupational specialist (MOS), he was exposed to loud noises from his radio equipment, such as loud buzzing frequencies. Furthermore, during the March 2017 Board hearing, the Veteran testified that he experienced ringing in his ears since his military service. Id. His DD-214 Form reflects that his MOS was a radio operator and a multichannel equipment operator, and that he was stationed in Germany as a multichannel equipment operator. His service treatment records reflect no complaint or diagnosis of tinnitus during service. The Board has no reason to dispute the Veteran's credible lay statement concerning his in-service noise exposure. To this end, the Veteran's statements are consistent with his with his DD-214 Form. Therefore, his claimed exposure to loud noise is consistent with the circumstances, conditions, and hardships of his service, and is credible. See 38 U.S.C. § 1154 (a) (West 2012). As the Veteran has established the current disability and in-service injury elements, the only remaining question is whether there is a nexus between his current disability and in-service acoustic trauma. In June 2011, he was afforded an audiological examination. The examiner indicated that the Veteran had recurrent tinnitus and opined that the Veteran's tinnitus is not related to his military service. The VA examiner reasoned that the Veteran's separation examination report showed normal hearing. The Board finds that the June 2011 opinion is of no probative value, as the VA examiner provided no other reasoning than indicating that the Veteran's separation report showed normal hearing. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007)(holding a mere conclusory opinion is insufficient to allow the Board to make an informed decision as to the weight to assign to the opinion against contrary opinions.); see also Leshore v. Brown, 8 Vet. App. 409 (1995)(holding a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record). Furthermore, the Veteran's statements of ringing in the ears since service were not considered. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 n.1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). To this end, the Board finds that the Veteran's reported continuous ringing in the ears since service coupled with the evidence of record sufficiently supports a nexus between bilateral tinnitus and the Veteran's in-service acoustic trauma. The Veteran is competent to both observe the presence of tinnitus and relate his current tinnitus to acoustic trauma from his active service. The Board finds his assertions in this regard credible. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In the instant case, the Veteran has consistently asserted that this ringing in his ears since service and has continued ever since that time. The Board finds that there is sufficient persuasive evidence of record to establish the presence of tinnitus and likely continuity of symptoms from the time of service until the present. See 38 C.F.R. § 3.303(b). The Veteran's assertions regarding the onset of his tinnitus and continuity of symptoms since service are credible. As noted above, the Veteran has confirmed in-service noise exposure, and his descriptions of in-service noise exposure are consistent with the circumstances of his service as documented by his service records. He has stated that he experienced tinnitus since service and experiences it today, and there is no persuasive evidence of record indicating that the Veteran's statements are not credible. These statements, when viewed in relation to the Veteran's significant noise exposure in service, are entitled to significant probative weight, and thus, are sufficient to establish the presence of tinnitus and a likely continuity of symptomatology from service to the present. As the reasonable doubt created by this approximate balance in the evidence must be resolved in favor of the Veteran, entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for tinnitus is granted. REMAND As to the service connection claim for right ear hearing loss, the Veteran contends that his right ear hearing loss is due to noise exposure during his military service. See Board hearing transcript dated March 2017. In particular, he asserts that he was exposed to loud radio equipment noise (such as loud buzzing frequencies), weaponry, and grenades while he was stationed in Germany as a communications specialist. In June 2011, he was afforded an audiological examination. The examiner diagnosed right ear hearing loss pursuant to 38 C.F.R. § 3.385. The examiner opined that the Veteran's right ear hearing loss is not related to his military service. The examiner reasoned that the Veteran's separation examination report showed normal hearing. Importantly, during the March 2017 Board hearing, the Veteran testified that he experienced right ear hearing problems since service. The Board finds that the June 2011 opinion is flawed because normal hearing upon separation is not necessarily fatal to a claim for service connection for hearing loss. See Ledford v. Derwinski, 3 Vet. App. 87 (1992). Furthermore, the Veteran's complaints of right ear hearing problems since service were not considered. Therefore, the Board finds that a remand is necessary to obtain a medical opinion as to the etiology of the Veteran's right ear hearing loss. With respect to the service connection claim for a low back disability, the Veteran claims that his back disability is related to his military service. Specifically, he asserts that he injured his back when he fell off a ladder during basic training. See Board hearing transcript dated March 2017. VA treatment records include back diagnoses of spinal stenosis of lumbar region and degeneration of intervertebral disc. See VA treatment records dated March 2006 and June 2016. As to the service connection claim for residuals of an allergic reaction to penicillin, he claims that he had a penicillin reaction during his military service. Specifically, he asserts that he had an infection and was given penicillin and then experienced continuous itching to this day. See Board hearing transcript dated March 2017. The Veteran's service treatment records (STRs) include a December 1977 STR that documents the Veteran's complaints of itching, a rash, and small bumps over his body. The treatment provider noted that there was no apparent exposure to an allergen, but the Veteran appears to have contact dermatitis. A May 1979 STR notes that the Veteran has an allergy to penicillin. Post-service, a February 2003 VA treatment record documents that the Veteran has an allergy to penicillin and has current complaints of itching. In sum, the evidence of record suggests that the Veteran's low back disability and residuals of an allergic reaction to penicillin may be associated with in-service events or injuries; however, he has not been afforded a VA examination nor has an opinion been obtained to determine the nature and etiology of his claimed disabilities. Accordingly, the Board finds that upon remand, an opinion should be obtained to determine the etiology of the Veteran's back disability and he should be afforded an examination to determine the nature and etiology of his claimed residuals of an allergic reaction to penicillin. See 38 U.S.C. § 5103A(d)(2) (West 2012); 38 C.F.R. § 3.159(c)(4)(i) (2017); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, the claims are REMANDED for the following action: 1. Obtain updated records of treatment that the Veteran may have received at any VA health care facility. All such available documents should be associated with the claims file. 2. Obtain the appropriate release of information forms where necessary, procure any records of outstanding treatment that the Veteran has recently received. All such available documents should be associated with the claims file. 3. Then, obtain an opinion from a VA audiologist concerning the Veteran's claim for service connection for right ear hearing loss. The VA audiologist should offer a medical opinion based on a thorough review of the evidence of record. A copy of this remand must be made available to the audiologist for review in connection with the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the VA audiologist. The VA audiologist should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that right ear hearing loss had its clinical onset during military service or is otherwise related to service. The VA audiologist should also address the Veteran's lay testimony regarding his hearing acuity symptomatology since service. The VA audiologist must provide a rationale for the opinion given. The VA audiologist is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. 4. The claims folder should be referred to an appropriate VA physician for an opinion as to the etiology of the Veteran's low back disability. A copy of this remand must be made available to the physician for review in connection with the requested opinion. The physician should provide an opinion whether it is as least as likely as not (50 percent probability or more) that the Veteran's low back disability had its onset in service or is otherwise related to service, or manifested within one year of his separation from service. The physician must provide reasons for each opinion given. The physician is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions. The physician is asked to address/comment on the Veteran's assertions that he has experienced back pain since service. 5. Then, schedule the Veteran for a VA examination by an appropriate physician to determine the nature and etiology of his claimed residuals of an allergic reaction to penicillin. A copy of this remand must be made available to the physician for review in connection with the requested opinion. The examiner should first identify any current residuals of an allergic reaction to penicillin since approximately January 2011, the date of the Veteran's claim. Then as to any such identified disability, the examiner should then opine whether it is as least as likely as not (50 percent probability or more) that it had its onset in service, is otherwise related to service. The examiner must provide reasons for any opinion given. The examiner is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions. The examiner is asked to address/comment on the Veteran's STRs dated in a December 1977 and May 1979, that reflect that the Veteran had complaints of itching and an allergy to penicillin and his assertions that he has experienced itching since service. 6. Thereafter, readjudicate the issues on appeal. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond. Then return the case to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2012). ______________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252, only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b). Department of Veterans Affairs