Citation Nr: 1800287	
Decision Date: 01/04/18    Archive Date: 01/19/18

DOCKET NO.  16-01 687	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1. Entitlement to service connection for bilateral hearing loss.

2. Entitlement to service connection for tinnitus.


REPRESENTATION

The Veteran represented by:     Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

I. M. Hitchcock, Associate Counsel 





INTRODUCTION

The Veteran had active military service with the Marines from December 1967 to March 1969.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.  

The issue of 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).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

FINDING OF FACT

There is probative evidence that the Veteran's tinnitus has had a continuity of symptomology after service.


CONCLUSION OF LAW

Service connection for tinnitus is established.  38 U.S.C. § 1110, 5107 (2012); 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 a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. 
§ 3.303(a).  Service connection may also be granted for any disease 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).

Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, to include tinnitus, are presumed to have been incurred in service if manifested to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.  

Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R.
§ 3.303(b).  However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  

The Veteran asserts that he has had ringing in his ears since service due to his time aboard the USS Ticonderoga.  His military occupational specialty is listed as  rifleman.  

Tinnitus is a disorder that is capable of lay-observation and the Veteran is competent to relate his post-service symptoms of tinnitus. See Charles v. Principi, 16 Vet. App. 370 (2002).  Therefore, the Board finds that the Veteran has established that he has a current diagnosis of tinnitus; thus, the first prong of service connection, existence of a present disability, is satisfied. Shedden, supra. 

Due to the nature of the Veteran's work around rifles while in service, noise trauma due to loud noises is conceded.  Thus, the second prong of service connection, whether there was an in-service event, is satisfied. Id.

As the to the third prong of service connection, a nexus between the current disability and the in-service injury or event, the Board has considered the record, including service treatment records, lay statements, and examinations. 

The Veteran had two VA audiological examinations, one in June 2014 and one in December 2015.  However, both examinations yielded inconsistent test results and were considered unreliable.   

Even so, the Board accords great probative weight to the claimant's reports of tinnitus since service and finds that the Veteran's tinnitus is established under continuity of symptomology.  38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra.  He has consistently stated that his tinnitus has been present since service.  Tinnitus is a disorder that is capable of lay-observation and the Veteran is competent to relate his post-service symptoms of tinnitus. See Charles, supra.  

Based on the foregoing, the Board finds that service connection is warranted for tinnitus.  In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine.  Given that the VA examiner's opinion did not address the issue of continuity of symptomology and that no ultimate, material issues are in equipoise, that doctrine is not applicable in the instant appeal. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.


ORDER

Service connection for tinnitus is granted.
REMAND

Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159.

The Veteran had two VA audiological examinations, one in June 2014 and one in December 2015.  However, both examinations yielded inconsistent test results and were considered unreliable.  

Nonetheless, the Board finds the VA examiner's conclusion to be inadequate because it did not fully explain why the examination results were unreliable and it did not consider the Veteran's lay statements about hearing loss. See Dalton v. Nicholson, 21 Vet. App. 23 (2007).  VA regulations do not preclude service connection for hearing loss which first met VA's definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  In addition, the Veteran contended that he has a processing problem that causes him to answer questions slowly, complicating the results of the examination.

On remand, the AOJ should obtain any outstanding VA treatment records because there are none in the record.  In addition, given that no opinion of record adequately addresses whether noise trauma could cause symptoms of hearing loss, the Veteran should have an opportunity to have an examination for his claim of service connection for bilateral hearing loss.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  

Accordingly, the case is REMANDED for the following action:

(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. Obtain any outstanding, pertinent VA and/or private treatment records and associate them with the Veteran's claims file.

2.  After obtaining any outstanding records, return the claims file to a VA examiner.  The claims file and a copy of this Remand must be made available to the examiner.  The examiner should note in the examination report that the claims file and the Remand have been reviewed.  

In providing the opinion, the examiner must acknowledge the Veteran's conceded exposure to excessive noise in service.  The examiner must also recognize that the fact that there was no diagnosis of bilateral hearing loss in service is not, by itself, a sufficient reason to deny service connection for bilateral hearing loss.  

Further, the examiner must acknowledge that the Veteran claims to have a processing problem which causes him to answer questions slowly.

The examiner is asked to provide an opinion as to the following:

a) Does the Veteran have a bilateral hearing loss disability for VA purposes;

b) If a hearing loss disability is found, is it at least as likely as not (50 percent or greater probability) that it began during service or is etiologically related to exposure to excessive noise during active duty service, including exposure to the noise of rifles. A complete answer should address the Veteran's lay statements (including his history of symptoms).

The examiner must include in the medical report the rationale for any opinion expressed, based on the reviewer's clinical experience, medical expertise, and established medical principles.  However, if the examiner cannot respond to an inquiry without resorting to mere speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion, stating what, if any, additional evidence would permit such an opinion to be made.

3.  Thereafter, the AOJ should review the claims file to ensure that the foregoing requested development has been completed.  In particular, the requested medical opinions should be reviewed to ensure that it is responsive to, and in complete compliance with, the directives of this remand.  If not, appropriate corrective action should be taken.

4.  After completing the aforementioned, and conducting any additional development deemed necessary, readjudicate the Veteran's claims for entitlement to service connection for bilateral hearing loss in light of all additional evidence received.  If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration.

The Veteran 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. §§ 5109B, 7112 (2012).



______________________________________________
L. M. BARNARD 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs