Citation Nr: 1801136	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  14-34 371A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1. Entitlement to service connection for bilateral hearing loss.

2. Entitlement to service connection for tinnitus.  



REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran




ATTORNEY FOR THE BOARD

C. O'Donnell, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from March 1956 to February 1959.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  

In October 2017 the Veteran testified before the undersigned at a Travel Board hearing.  A transcript of the hearing is associated with the claims file.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).

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 AOJ.


FINDINGS OF FACT

The Veteran's current tinnitus is at least as likely as not the result of an in-service event or injury.  


CONCLUSION OF LAW

Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to service connection for tinnitus have been met.  38 U.S.C. §§ 1101, 1112, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran contends that his current tinnitus is related to his time in active service.  Specifically, he asserts that he was exposed to noise from, among other things, being in close proximity to explosions from hand grenades and artillery, as well as working around loud equipment.  The Veteran's DD Form 214 shows that his military specialty was as a powerman and that he was assigned to an artillery unit.  The Board finds that the Veteran's statements are competent and credible and his reported noise exposure is consistent with the circumstances of his military service.  

The Veteran's October 2017 Board hearing transcript reflects that the Veteran reported his tinnitus had its onset while on active duty and that it has been continuous since that time.  The Board acknowledges that the Veteran did not report his tinnitus to the May 2012 VA examiner.  However, the Veteran is competent to report a diagnosis of tinnitus.  Thus, the Board finds that the Veteran has a current diagnosis of tinnitus.  See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that lay testimony may establish the presence of tinnitus because ringing in the ears is capable of lay observation).  Moreover, the Veteran is competent to report that his symptoms of tinnitus have continued since his military service and the Board has no reason to doubt the credibility of his lay assertions.  

The law is clear.  Pursuant to the "benefit-of-the-doubt" rule, where there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. 38 U.S.C.A. § 5107 (West 2014).  The Board finds that the Veteran's statement as to the onset of tinnitus during his October 2017 Board hearing to be competent and credible, and this lay evidence indicates a relationship between the current disability and the in-service noise exposure. 

The Board therefore concludes that, with the benefit of the doubt resolved in the Veteran's favor, a grant of service connection for tinnitus is warranted.  See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  


ORDER

Entitlement to service connection for tinnitus is granted.  


REMAND

In May 2012, the Veteran was afforded a VA examination to address the nature and etiology of his diagnosed bilateral hearing loss.  The VA examiner was asked to render an opinion as to whether it was at least as likely as not that the Veteran's bilateral hearing loss was due to in-service noise exposure.  The VA examiner stated that she was unable to render an opinion without resorting to speculation, as there were no in-service medical records or other information related to the Veteran's bilateral hearing loss.  

In November 2012, VA made a formal finding that it could not locate the Veteran's service treatment records (STRs), and that future efforts would be futile.  See November 2012 VA Letter.  In situations where the service records are incomplete, lost or presumed destroyed through no fault of the veteran, VA has a heightened duty to assist in the development of the case, as well as a heightened obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt doctrine.  See Marciniak v. Brown, 10 Vet. App. 198, 200 (1997) (citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)).

In this case, the Board notes that the laws and regulations applicable to the Veteran's claim do not require in-service complaints of or treatment for hearing loss in order to establish service connection.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Instead, evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss.  Hensley v. Brown, 5 Vet. App. 155, at 159 (1993).  The record reflects that during service the Veteran served as a powerman and was exposed to noise from grenades, artillery, and working around loud equipment.  

Based on the above, the Board finds the May 2012 VA examination inadequate to adjudicate the issue on appeal.  In that regard, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate.  Barr v. Nicholson, 21 Vet. App. 303, at 312 (2007).  


Accordingly, the case is REMANDED for the following action:

(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. Schedule the Veteran for an examination with an otolaryngologist, or other qualified medical examiner, to determine the nature and etiology of his bilateral hearing loss.  The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay assertions.  

The examiner should opine as to whether it is at least as likely as not (a 50 percent probability or greater) that any current hearing loss had its onset in service, was caused by military service, or is related to military service, to include whether any injury due to loud noise exposure experienced therein contributed to his current bilateral hearing loss.  

It should be noted that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim.  Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss when there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for a hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service.

The examiner should also comment on the likelihood that loud noises experienced resulted in damage to auditory hair cells even though findings may or may not suggest a recovered temporary threshold shift in service.  If the examiner finds auditory hair cell damage to be a likely result of the military noise exposure, please comment on the likelihood that such damaged hair cells would result in a greater permanent hearing loss than otherwise would be manifest.

The examiner should discuss medically known or theoretical causes of hearing loss and describe how hearing loss which results from noise exposure generally presents or develops in most cases, as distinguished from how hearing loss develops from other causes, in determining the likelihood that current hearing loss was caused by noise exposure in service as opposed to some other cause.

In rendering this opinion, the examiner should consider the Veteran's statement that his bilateral hearing loss is related to his in-service noise exposure.  

The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find favor of conclusion as it is to find against it).

A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 

2. In the event that the Veteran does not report for the scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to his last known address and to his representative.  It should also be indicated whether any notice sent was returned as undeliverable.

3. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence received.  If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.


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.A. §§ 5109B, 7112 (West 2014).




______________________________________________
ANTHONY C. SCIRÉ, JR.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs