Citation Nr: 1800673	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO.  14-25 237	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to service connection for tinnitus.

2.  Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

P. Yoffe, Associate Counsel
INTRODUCTION

The Veteran served on active duty for training from March 2005 to July 2005 and on active duty from January 2008 to January 2009 as a military policeman and corrections specialist in the U.S. Army, including service in Iraq.  The Veteran had an additional relevant period of active duty for training of less than 30 days starting in October 2009 when he was deployed to Uganda.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2013 decision of the Roanoke, VA Regional Office (RO) of the Department of Veterans Affairs (VA).
 
The Veteran had a Board hearing in April 2017; the transcript has been associated with the file.

The issue(s) of bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.


FINDINGS OF FACT

Tinnitus is attributable to service.


CONCLUSION OF LAW

Tinnitus was incurred in service.  38 U.S.C. § 1110 (2017); 38 C.F.R. §§ 3.102, 3.303 (2017).






REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

In this decision, the issue being decided by the Board is being granted and any discussion regarding the duties to notify and assist is not necessary.  Any error in these duties would not be prejudicial to the Veteran and is therefore harmless.

Service Connection

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service.  38 U.S.C. § 1110 (2012). 

To establish a right to compensation for a present disability, a Veteran must show: (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 claimed in-service disease or injury and the current disability.  38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).  

For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, such as organic disease of the nervous system (tinnitus), are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017).  With chronic disease shown as such in service 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 attributable to intercurrent causes.  C.F.R. § 3.303(b).  Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  Id.  38 C.F.R. § 3.303(b) applies only to chronic disease as listed in 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts.  See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008).

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 claimant.  38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

Tinnitus

The Veteran contends he has tinnitus related to acoustic trauma service. 

The Veteran has a medical examination reporting tinnitus ("severe ringing") about eight months after service.  See August 2009 private examination.  In February 2014, a VA contractor (QTC) medical examination also reported that the Veteran had noise exposure as a military policeman in service and damage to the outer hair cells from exposure to gunfire.  The examiner stated that tinnitus was at least as likely as not due to noise service.  Also dated February 2014 is an additional QTC addendum opinion from a different audiologist, which states that there is "no evidence of tinnitus treatment or complaints in the Veteran's STRs" and that the Veteran did not report a specific noise event or injury in active duty that resulted in tinnitus.  

Tinnitus is a condition that may be diagnosed by its unique and readily identifiable features, and the presence of the disorder is not a determination that is medical in nature and is capable of lay observation.  Charles v. Principi, 16 Vet. App. 370 (2002).  A layperson also is competent to testify as to the onset and continuity of symptomatology.  Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). The Board further notes that tinnitus may be subject to service connection on a presumptive basis as an "organic disease of the nervous system" under 38 C.F.R.§ 3.309(a) where there is evidence of in-service acoustic trauma and a continuity of symptomatology from service.  See Fountain v. McDonald, 27 Vet. App. 258 (2015); see also Walker v. Shinseki, 708 F.3d 1331   (Fed. Cir. 2013). 

The Veteran's service is consistent with acoustic trauma.  He reported sustained exposure to gunfire in training or live fire drills in Kuwait and Iraq and working as a military policeman in a special housing unit where he was exposed to constant loud noises from diesel generators, the detainees themselves, and noise from mortar and rocket fire.  The Veteran also reported additional noise exposure from helicopters and generators during a nearly 30 day deployment in Uganda from October 2009 onwards. 

Therefore, in this case, there is evidence of in-service acoustic trauma, reports of tinnitus in service (per the Veteran's lay statement), a medical record within a year of service noting tinnitus symptoms, and an indication of continuity of symptomatology from service, as well as a VA medical opinion stating tinnitus was due to service.  Service connection for tinnitus is therefore warranted on either a direct or presumptive basis.

The February 2014 QTC addendum opinion has been considered.  However, it is conclusory, conflicts with the opinion given by the original audiologist who examined the Veteran, and relied upon incorrect stated facts regarding a lack of exposure to acoustic trauma.  The Veteran stated what in-service events caused tinnitus (long term exposure to large diesel generators in an enclosed space and exposure to gunfire and helicopter noise without proper hearing protection).  He also submitted a record dated August 2009 reporting severe ringing because of gunfire exposure in service, although this document was not submitted until after the February 2014 addendum opinion.  Still, based on the foregoing, the February QTC has less probative value than the original examiner's opinion.

It light of the foregoing, the Board is satisfied that the criteria for entitlement to service connection for tinnitus have been met.  


ORDER

Entitlement to service connection for tinnitus is granted.


REMAND

There are several reasons indicating that a new examination is needed.  The Veteran's last hearing examination reported hearing loss in the left ear was not a disability per VA regulations.  The Veteran has claimed both that his hearing in the left ear has worsened and that his examination for hearing loss was inadequate due to malfunctioning equipment.  See April 2017 Board hearing.  The Veteran additionally submitted a number of relevant service and medical records, including hearing testing dated in August 2009 and evidence showing a period of active duty for training of nearly 30 days starting in October 2009.  In light of the above, a remand is required to afford the Veteran a new examination and opinion.

Accordingly, the case is REMANDED for the following action:

1.   Afford the Veteran an appropriate VA examination to determine the current severity and etiology of his bilateral hearing loss disability.  The medical professional must provide an opinion addressing the following:

Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that a hearing loss disability of either or both ears had its onset during active service or is related to any in-service disease, event, or injury, to include conceded exposure to acoustic trauma.

While review of the entire claims folder is required, the Board directs the examiner's attention to the August 2009 private hearing test and information documenting a period of active duty for training starting in October 2009, as well as the February 2014 QTC examination and February QTC addendum opinion.

2.  After completing the requested actions, readjudicate the claims in light of all pertinent evidence.  If the benefits sought remain denied, furnish to the Veteran and his representative a Supplemental Statement of the Case.

The appellant 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).




______________________________________________
J. W. FRANCIS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs