Citation Nr: 1801288 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 16-15 661 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for recurrent tinnitus. 2. Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Trickey, Associate Counsel INTRODUCTION The Veteran had active service from July 1957 to June 1960. This matter comes before the Board of Veterans' Appeals (Board) from an October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) located in Louisville, Kentucky. In September 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. 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). 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). FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the Veteran has recurrent tinnitus which began during active service and has persisted since. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.303 , 3.307, 3.309(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012). Service connection requires evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran provided competent and credible testimony at a hearing before the undersigned in September 2017 that he experienced sustained headset noise as a radio operator and acoustic trauma during storms with lightning strikes. The Veteran testified at the September 2017 hearing that he would have tinnitus following lightning strikes and that he experienced progressive tinnitus since service. The Board finds the Veteran competent and credible to report acoustic trauma and tinnitus since service. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). The Board finds there is sufficient evidence of acoustic trauma and noise exposure to demonstrate in-service injury. With regard to the presence of a tinnitus disability during the appellate period, the Veteran was afforded a VA examination in September 2015 at which he reported a history of tinntius. The veteran's lay statements of ringing in his ears are sufficient to establish the presence of tinnitus. See Charles v. Principi, 16 Vet. App. 370 (2002). Therefore, the requirement for a present disability has been met. Thus, the remaining question is whether the Veteran's tinnitus is causally related to his complaints of acoustic trauma in service. The VA examiner noted that the Veteran's hearing was measured with the Whisper Test on entrance and separation. The September 2015 VA examiner opined that due to the insensitivity of the Whisper test, the Veteran's hearing acuity on entrance and separation was unknown. While the September 2015 VA examiner opined that the Veteran's tinnitus was less like than not due to his service based on the Veteran's reports of a several year history of symptoms, the Veteran provided clarication of his symptoms of tinnitus at the September 2017 hearing, noting that his tinnitus had persisted since service and had worsened in the last few years. In that regard, service connection for chronic diseases, such as tinnitus, may be established by a showing of a continuity of symptomatology. 38 C.F.R. §§ 3.303(b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). The Board is within its province to weigh the Veteran's statements regarding the symptomatology he has experienced and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). As indicated above, the Board finds the Veteran credible as to his assertions of in-service noise exposure and intermittent symptoms of tinnitus since service. Based on the Veteran's credible testimony and affording the benefit of reasonable doubt in light of the lack of accurate audiometric results on entrance and separation from service, the evidence is in relative equipoise as to whether his claimed tinnitus disability was incurred in service. Service connection for tinnitus is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for tinnitus is granted. REMAND Regrettably, a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (20112); 38 C.F.R. § 3.159 (2017). The Veteran asserts that his bilateral hearing loss was caused by service and submitted an April 2016 statement noting he experienced sustained headset noise as a radio operator and acoustic trauma during storms with lightning strikes. The Veteran testified at the September 2017 hearing that he would have hearing loss following lightning strikes and that he experienced progressive hearing loss since service. The Board finds the Veteran competent and credible to report acoustic trauma and decreased hearing acuity since service. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). The Veteran was afforded a VA examination in September 2015. The Veteran's hearing acuity meets the criteria for a hearing loss disability under 38 C.F.R. § 3.385. The VA examiner noted that the Veteran's hearing was measured with the Whisper Test on entrance and separation. The September 2015 VA examiner opined that due to the insensitivity of the Whisper test, the Veteran's hearing acuity on entrance and separation was unknown. The VA examiner found the Veteran's hearing loss was less likely than not related to his active service and noted that the Veteran's service as a radio operator had a low probability of noise exposure. The Board finds that an additional opinion that addresses the Veteran's specific reports of acoustic trauma from lightning strikes and sustained noise from radio operations is warranted in light of the lack of accurate audiometric results on entrance and separation from service. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). 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. The RO should make all reasonable efforts to obtain all outstanding medical and/or treatment records related to the issues on appeal, including all outstanding VA medical records. 2. After completion of the above, obtain a medical opinion regarding the onset and etiology of the Veteran's hearing loss and tinnitus. The Veteran's claims file and a copy of this remand must be made available for review by the examiner. In formulating an opinion, the examiner must consider and discuss (1) the Veteran's lay assertions regarding in-service noise exposure to sustained headset noise as a radio operator and acoustic trauma during storms with lightning strikes, (2) the Veteran's lay assertions regarding hearing loss following lightning strikes and that he experience progressive hearing loss since service, and (3) the lack of accurate audiometric results on entrance and separation from service. The examiner is advised that the Board has conceded that the Veteran was exposed to hazardous noise during lightning strikes as a radio operator. The examiner is asked to provide a response to the following: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's hearing loss was manifested during, or is otherwise medically related to, active service? A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. 3. Thereafter, the Veteran's claim should be readjudicated. If the claim remains denied, the Veteran should be furnished with a supplemental statement of the case and afforded a reasonable opportunity for response. 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs