Citation Nr: 1800515	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO.  14-08 641	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for tinnitus.

2.  Entitlement to an initial compensable rating for a bilateral hearing loss disability.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

P. Stephan, Associate Counsel


INTRODUCTION

The Veteran had active duty service from December 1966 to June 1970.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  The St. Petersburg RO is the agency of original jurisdiction (AOJ) for this matter.  

The Veteran provided testimony before the undersigned Veterans Law Judge at a Travel Board hearing in January 2017.  A transcript of the hearing is of record.

The issue of an initial compensable rating 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 Veteran's current tinnitus disability bean during, or was otherwise caused by, his active duty service.


CONCLUSION OF LAW

After resolving all doubt in the Veteran's favor, the criteria for service connection for tinnitus has been met.  38 U.S.C. §§ 1101, 1131, 1133, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, (2017).




REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The VA's duty to notify was satisfied by a letter sent by the AOJ in August 2010.  38 U.S.C. § 5103(a), 38 C.F.R. § 3.159(b) (1).  The letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating.  Dingess/Hartman v Nicholson, 19 Vet. App. 473 (2006).

With regard to the Veteran's claim for an initial increased rating, once service connection is granted, additional VCAA notice is not required, and any defect in the notice is not prejudicial.  Goodwin v. Peake, 22 Vet. App. 128, 137 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  The Veteran has not alleged any error in the VCAA notice, and the VA has fulfilled its duty to notify.  Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

The VA has also satisfied its duty to assist.  The VA has undertaken appropriate actions to obtain all evidence relevant to this claim.  The AOJ has secured the Veteran's service treatment records (STRs), and all identified and available private treatment records.  The Veteran has submitted personal statements as well as arguments from his representative.

The Veteran was afforded a VA examination in December 2010 in connection with this claim.  38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4).  The examination was adequate because it included a review of the Veteran's medical history as well as the relevant rating criteria, and considered functional loss.  However, there is objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected bilateral hearing loss disability since he was last examined in December 2010, based evidence in the record, and therefore the Veteran's initial increased rating claim must be remanded, as discussed in more detail in the remand section below. See 38 C.F.R. § 3.327(a).




Analysis

Generally, to establish service connection, "the veteran must show: (1) a present disability; (2) the in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between them."  Shedden v. Principi, 381, F.3d 1163, 1167 (Fed. Cir. 2004).  

Certain chronic diseases, like tinnitus in this claim, are subject to a presumptive service connection theory of entitlement that eliminates the medical nexus requirement.  38 U.S.C. § 1101(3); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. § 3.309(a).  This theory can be rebutted by evidence of an intervening cause of the disability.  38 U.S.C. § 1113; 38 C.F.R. § 3.307(d).  To establish a presumptive service connection for a chronic disease like tinnitus, there must be some evidence of the same chronic disability in service, or within the presumptive period after service as established by medical or competent lay evidence.  Alternatively, the disease may be presumptively service connected if the symptoms are noted in service along with a continuity of symptoms after discharge.  Walker, 708 F.3d at 1340.  If a presumptive service connection is not established, service connection may still be granted based on other theories of entitlement.  Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).

Unlike hearing loss, a claim for service connection for tinnitus does not depend on the application of technical testing criteria.  Given the nature of tinnitus, the Veteran is competent to provide evidence that the condition is present.  See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation").  

The Veteran claims he currently experiences a hissing and buzzing in his ears, and therefore meets the current disability requirement of his claim for service connection for tinnitus.  During his active duty service, the Veteran had a Military Occupational Specialty (MOS) as an interior communications electrician aboard the USS FRANKLIN D ROOSEVELT, an aircraft carrier.  The Veteran testified that his work was conducted in the power shop at the front of the carrier, near the flight deck, where he was exposed to loud jet engine noise.  The Board finds the Veteran's statements credible and consistent with his MOS, and in-service injury is established.  

The Veteran stated during his Board hearing that he experienced tinnitus on his shifts near the flight deck, but afterwards his symptoms went away.  Though he did not recognize having symptoms of tinnitus after discharge in his twenties or thirties, he stated that he did not have exposure to intervening acoustic trauma.  The Veteran is competent to report tinnitus, and the Board finds his statements regarding in-service tinnitus credible.  As the Veteran reported that tinnitus started during service, his credible assertions of tinnitus during and after active duty service establish a nexus to service. See 38 C.F.R. §§ 3.303(b), 3.309(a); see also Charles v. Principi, 16 Vet. App. 370, 374 (2002).

The Board also notes there is negative evidence in the record for the Veteran's tinnitus claim.  Service treatment records show the Veteran affirmatively denied any hearing problems upon entry and in service.  However, the Board finds the absence of an in-service diagnosis is not dispositive as to whether the Veteran experienced tinnitus in service.  

Additionally, a December 2010 opinion from a VA audiologist stated the Veteran's tinnitus was not due to active duty service because current and historical ringing in the ears and other head noises were denied by the Veteran.  However, the Veteran explained to the Board that the reason he denied tinnitus symptoms to the VA examiner was because she asked him only about ringing, and not buzzing or hissing noises that are the symptoms of his disability.  The Board finds the Veteran's explanation regarding the questions presented during the examination to be credible.  Accordingly, little probative value will be placed on the examination findings pertaining to tinnitus as it does not appear that the report considered the Veteran's credible reports of buzzing and hissing since service..

In light of the foregoing, and resolving all doubt in the Veteran's favor, the Board finds that 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, subject to the laws and regulations governing the award of monetary benefits.


REMAND

Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to assist the claimant in the development of a claim.  38 C.F.R. § 3.159(c) (2017).  A preliminary review of the record reflects that further development is necessary for the Veteran's bilateral hearing loss claim to fulfill that duty. 

The Veteran's bilateral hearing loss disability was service connected in December 2010 and rated since that time under Diagnostic Code 6100 at zero percent, according to the VA Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. § 4.1 (2017).  The ratings under the codes are intended to compensate the average impairment of earning capacity.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.10, 4.2 (2017).

The Veteran filed a notice of disagreement with his disability rating, and sought an initial compensable rating in July 2011.  Since his initial rating, the Veteran has described many functional impairments as a result of his worsening hearing acuity.

The record reflects the Veteran was last afforded a VA examination for his bilateral hearing disability in December 2010.  The Veteran has since submitted a private audiogram from March 2017.  The report utilized a puretone audiometry test, and was conducted by a state-licensed audiologist, but did not conduct the required Maryland CNC test in accordance with 38 C.F.R. § 4.85(a).  See Savage v. Shinseki, 24 Vet. App. 259, 263-64 (2011).  This private exam suggests worsening since the last examination that qualifies under VA regulations, and therefore 38 C.F.R. § 3.327(a) requires the Board to remand for a more contemporaneous VA examination that meets the requirements of 38 C.F.R. § 4.85(a).  See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).

Accordingly, the case is REMANDED for the following actions:

1.   Arrange for the Veteran to undergo a VA examination for his bilateral hearing loss disability.  The examiner should review the claims file and conduct an in-person examination of the Veteran, and provide a medical opinion as to the nature and severity of the Veteran's service-connected bilateral hearing loss disability including both puretone audiometry testing and speech recognition testing using the Maryland CNC word list.

2.   The AOJ should conduct any other development deemed appropriate.

3.   After the above development has been completed, the AOJ should readjudicate the claim.  If any benefit sought remains denied, provide the Veteran and his representative with 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).




______________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs