Citation Nr: 1800830 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 11-05 567 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Reed, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1968 to June 1970, with additional periods of active duty for training in the United States Army Reserve. This case comes before the Board of Veterans' Appeals (the Board) from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran claim was subsequently transferred to the RO in Houston, Texas. This claim was previously before the Board in September 2017. At that time the Board remanded the claim in order to provide the Veteran with the hearing he requested in his substantive appeal. The Veteran appeared at a videoconference hearing at the RO in October 2017 before the undersigned Veterans Law Judge, who presided over the hearing while sitting in Washington, DC. A transcript of the hearing has been associated with the Veteran's claims file. The issue of entitlement to 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). FINDINGS OF FACT 1. The Veteran was exposed to loud noises, including large caliber weapons fire and engine noises during his active service. 2. The Veteran began experiencing the symptoms of tinnitus while in active service and has experienced such symptoms since that time. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria to establish service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1141, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board does note that the Veteran's service records are not available. In a case in which a Veteran's service records are unavailable through no fault of his or her own, there is a heightened obligation for VA to assist the Veteran in the development of their claim and provide reasons or bases for any adverse decision rendered without these records. See Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (quoting O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)); Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) (noting that the duty to assist is "particularly great in light of the unavailability of the Veteran's exit examination and full Army medical records"). The Veteran was provided notice of the unavailability of his records and informed of the efforts undertaken to locate such records; he was advised that he could submit any copies of records he had in his possession. See December 2008 VA Memorandum and June 2014 Notification Letter. The Veteran indicated he had no such records in an August 2012 statement in support of claim. The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Stegall Considerations The Veteran's claim was remanded in September 2017 to afford the Veteran a hearing. Upon remand, the Veteran was provided a hearing via videoconference in October 2017. Accordingly, there has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection for Tinnitus Generally, service connection may be granted for disability or injury incurred in, or aggravated by, active military service. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). In order to establish service connection for a claimed disorder, there must be (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). At the September 2009 VA examination, the Veteran reported persistent bilateral tinnitus. That examination noted the Veteran's current disability of bilateral tinnitus. Thus, the first Hickson element, a present disability, is satisfied. Further, the Veteran noted that he had experienced tinnitus since he was in service in his September 2014 VA Form 9, and also testified at the October 2017 videoconference hearing that he had experienced ringing in his ears since he was on active duty. The Veteran is competent to testify to his own experiences. Further, the Court of Appeals for Veterans Claims (Court) has found that a lay person is capable of observing tinnitus. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Given that the Veteran's statements have been consistent, and the lack of contradictory evidence, the Board finds these statements credible. Therefore, the evidence establishes the second Hickson element, an in-service incurrence or injury. With respect to the final Hickson element, the Veteran has testified that he has experienced tinnitus persistently since active duty. This testimony is sufficient to establish a nexus between the Veteran's current tinnitus and the in-service incurrence. This is because for certain chronic disorders, shown as such in service, so as to permit a finding that the disorder was incurred during service or within the presumptive period, subsequent manifestations of the same chronic disease at a later date, however remote, are service connected. See 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a) (2017). Tinnitus caused by acoustic trauma is considered is among the chronic diseases listed under 38 C.F.R. § 3.309(a) (2015). See Fountain v. McDonald, 27 Vet. App. 258, 263 (2015). Therefore, a presumption of service connection for chronic diseases under 38 C.F.R. § 3.303(b) (2017) applies to this tinnitus claim, and the third Hickson element is satisfied. Resolving all reasonable doubt in favor of the Veteran, his tinnitus cannot be satisfactorily disassociated from service. Thus, all elements required to establish service connection for tinnitus have been satisfied, and service connection is warranted. 38 C.F.R. § 3.102 (2017). See also 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for tinnitus is granted. REMAND A remand is necessary to provide the Veteran with an examination to determine the nature and etiology of the Veteran's hearing loss. While the Veteran was provided with an examination in September 2009, the examiner did not render an opinion. The examiner stated he could not offer and opinion without resorting to speculation. The Court has recognized circumstances in which an examiner's conclusion that an "opinion is not possible without resort to speculation is a medical conclusion just as much as a firm diagnosis or a conclusive [medical] opinion." Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). While Jones, permits the Board to accept a VA examiner's statement that he or she cannot offer an opinion without resorting to speculation, it may only do so after determining that this is not based on the absence of procurable information or on a particular examiner's shortcomings or general aversion to offering an opinion on issues not directly observed. Id. at 390. Here, the examiner's opinion does not satisfy the Jones criteria. It is unclear if examiner's response is due to the inability to render such an opinion, or the unwillingness to do so based on the Veteran's lay statements about his service, alone. Further, the Veteran has expressed a worsening of his condition. Consideration of such worsening may further elucidate the etiology of the Veteran's hearing loss. Therefore, a remand is necessary to provide the Veteran with a new examination and obtain an opinion on the etiology of the Veteran's hearing loss. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment and evaluation records dated for the entire period on appeal to present related to the Veteran's hearing loss. 2. Schedule the Veteran for an examination by an appropriate examiner to determine the current nature and etiology of his bilateral hearing loss disability. The examiner should review the Veteran's claims file, including a copy of this remand, in conjunction with the examination. Any indicated studies or diagnostic tests should be performed. Based on the examination results and a review of the record, the examiner should provide the following opinions: a. Does the Veteran have a current hearing loss disability? b. If a current hearing loss disability is found, is it at least as likely as not (a 50 percent probability or greater) that the Veteran's hearing loss disability had its onset in service or is otherwise related to active service? For all of the requested opinions, the examiner should consider the Veteran's lay statements regarding the nature and origin of his symptoms. The Veteran is competent to testify on factual matters of which he has first-hand knowledge. In particular the examiner should consider the Veteran's statements about acoustic trauma experience from large caliber weapons fire and engine noise. In formulating the opinions, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against. Any opinions offered should be accompanied by the underlying reasons for the conclusions. If the examiner is unable to offer any of the requested opinions, it is essential that the he or she offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 3. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs