Citation Nr: 1801723 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 16-26 116 ) 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 service connection for bilateral hearing loss. 3. Entitlement to service connection for a lower back condition. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Melissa Barbee, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from March 1973 to July 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In August 2017, the Veteran testified before the undersigned Veterans Law Judge at a video conference hearing. A transcript of the hearing has been 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. § 7107(a)(2) (West 2012). The issues of entitlement to service connection for bilateral hearing loss and a lower back condition are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, the evidence is at least in equipoise that his tinnitus is attributable to in-service noise exposure. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). With respect to continuity of symptomatology, the United States Court of Appeals for the Federal Circuit has held that, under 38 C.F.R. §3.303(b), the theory of continuity of symptomatology is an alternative route to establish service connection for specific chronic diseases and can only be used in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The United States Court of Appeals for Veterans Claims has held that tinnitus is to be considered an organic disease of the nervous system for purposes of 38 C.F.R. § 3.309(a). Fountain v. McDonald, 27 Vet. App. 258 (2015). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. 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). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Tinnitus is, by definition "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." Dorland's Illustrated Medical Dictionary, 1914 (30th ed. 2003). For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Gilbert, 1 Vet. App. at 53. The Veteran contends that he incurred tinnitus as a result of noise exposure during his active duty service from March 1973 to July 1974. The Veteran's military occupation specialty (MOS) was electrical power production specialist, and he reports noise exposure due to working on and around large diesel engines in a power plant without adequate hearing protection. The Veteran has stated that his tinnitus had its onset in service. The Board notes that the Veteran's DD 214 confirms his MOS of electrical power production specialist, an MOS that is considered moderately probable of routine exposure to potentially hazardous noise level conditions. See DOD Duty MOS Noise Exposure Listing. Furthermore, the Veteran's service treatment records indicate that he was afforded two "reference audiograms" while in service due to being assigned to a duty station with noise exposure. The Veteran's noise exposure in service is conceded by the Board. The Veteran is competent to describe being exposed to noise. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995). The Veteran's lay statements as to noise exposure in service are found to be credible as they have been consistent and are confirmed by the circumstances of his service. 38 U.S.C. § 1154(a). For this reason, in-service noise exposure to both ears is established. The Board next finds that the Veteran has a current tinnitus disability. The Veteran is competent, as a layperson, to testify as to presence of symptoms, such as ringing in his ears. Charles v. Principi, 16 Vet. App. 370, 374 (2002) (stating that "ringing in the ears is capable of lay observation" and, as such, a veteran is competent to testify as to that symptom). Further, in certain situations, lay evidence may be sufficient to diagnose a medical condition. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (stating the "[l]ay testimony is competent . . . to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection." (quoting Layno v. Brown, 6 Vet. App. 465, 469 (1994)). Moreover, as acoustic trauma in service has already been conceded, the question is one of nexus to military service. With respect to in-service-incurrence, the Veteran has asserted that his tinnitus began during service. While the Board finds that there is no reference to tinnitus in the Veteran's service treatment records, the Veteran testified in August 2017 that he first noticed his tinnitus during service. The Veteran is competent to report events that occurred during service. See Layno, 6 Vet. App. at 469. Regarding the Veteran's assertions of experiencing tinnitus during and since service, the Board notes again that the Veteran, as a layperson, is competent to report on matters observed or within his personal knowledge. See 38 C.F.R. § 3.159(a)(2); Barr, 21 Vet. App. at 303; see also Layno, 6 Vet. App. at 470; Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Moreover, tinnitus, or ringing in the ears, is a rare type of disability that may be established on the basis of lay evidence. See Charles, 16 Vet. App. at 370. Thus, the Veteran is competent to state that his tinnitus began during service, and that he has continued to experience tinnitus since service to the present. The Board finds that the Veteran's assertions regarding the onset of his tinnitus and continuity of symptoms since service are credible In a November 2012 audiological examination, a VA examiner determined that the Veteran's tinnitus was less likely than not related to his military service. The examiner based her opinion on a lack of evidence of acoustic trauma in service. In reaching this conclusion, the VA examiner impermissibly ignored the Veteran's statements regarding his in-service noise exposure. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). Accordingly, the Board finds that the November 2012 medical opinion is not supported by adequate rationale and has therefore assigned it little probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Accordingly, the Board finds that the evidence for and against the claim is at least in equipoise. When the evidence for and against the claim is in relative equipoise, the Board must resolve all reasonable doubt in favor of the Veteran. Therefore, resolving reasonable doubt in favor of the Veteran, the Board will grant the Veteran's claim for service connection for tinnitus. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for tinnitus is granted. REMAND Unfortunately, the Veteran's appeal must be remanded for further development. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide these issues so that the Veteran is afforded every possible consideration. The Veteran is seeking service connection for bilateral hearing loss. The Veteran's in-service exposure to acoustic trauma has already been conceded. The evidence of record also indicates that the Veteran has bilateral hearing loss for VA purposes. See November 2012 VA Examination Report; 38 C.F.R. § 3.385. The key remaining issue is whether there exists a nexus between the Veteran's bilateral hearing loss and his in-service acoustic trauma. The Veteran was afforded a VA audiological examination in November 2012 and an opinion was provided as to direct service connection that the Veteran's bilateral hearing loss is less likely than not related to military service. The examiner provided a rationale that relied upon a 2005 Institute of Medicine (IOM) study which revealed no scientific basis for delayed-onset of hearing loss. Subsequently, in an August 2017 correspondence, the Veteran's representative submitted a favorable study from 2009 for delayed-onset hearing loss that refutes the findings of the 2005 IOM study cited by the VA examiner. The evidence presented and cited by the Veteran's representative challenged the negative November 2012 VA opinion and its rationale's reliance, at least in part, on the concept that delayed-onset hearing loss was unlikely (with citation made to the IOM study in support of such). This evidence raises medical issues that the Board is not competent to address. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board therefore finds that remand is required for a VA opinion that considers the November 2012 VA opinion and the conflicting medical evidence presented by the Veteran's representative, as outlined in the remand directives below. Next, the Veteran is seeking service connection for a lower back disability. In his August 2017 video conference hearing, the Veteran testified that he slipped and fell in 1974 while repairing a diesel engine, resulting in a cracked vertebra. The cracked vertebra was not diagnosed until 1981. The Veteran was afforded a VA medical examination for his back condition in November 2012. The examiner determined that the Veteran's lower back condition is less likely than not related to his military service. The examiner concluded that the Veteran's back condition is most likely due to his fractured vertebra and that there is no evidence to support that this injury occurred in service. The examiner based his negative etiology opinion on the fact there was no documentation of acute back injury or complaint in service. The examiner failed to consider the Veteran's lay statements regarding onset and continuity of symptomatology. The Board finds that an adequate opinion is not of record. As such, an additional opinion is required. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). On remand, the VA examiner is requested to address the Veteran's contentions that his current lower back condition is related to a fall he experienced in service. In this regard, the examiner should consider whether the Veteran has a separate lower back disability from his diagnosed cracked vertebra, as his descriptions of the pain he experiences (lower back) differ from the location of the L1 vertebra (middle back). The examiner should also review and discuss the April 2015 and August 2017 statements from the Veteran's private physicians, stating that the Veteran's lower back condition is likely due to his claimed in-service injury. The examiner's opinion should show adequate consideration of these statements, the Veteran's lay statements, and any other evidence for or against the Veteran's claim. Finally, in his August 2017 video conference hearing, the Veteran testified that he receives Social Security Disability Income (SSDI) for his back condition. Although the Veteran's Social Security decision document has since been added to the claims file, the underlying medical evidence supporting that decision have not been submitted for review and consideration by VA. As these records may provide evidence to substantiate the Veteran's claims, on remand, the RO should request any available Social Security disability records. 38 C.F.R. § 3.159(c)(2); see Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (VA must request potentially relevant Social Security disability records under VA's duty to assist). Accordingly, the case is REMANDED for the following actions: (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. Contact the Social Security Administration (SSA) and request to be provided with copies of the Veteran's medical records in the SSA's possession pertaining to his claim for SSDI benefits, including the SSA decision and related administrative documents. Copies of all documented attempts by VA to obtain these outstanding SSA medical records and SSA's responses to these queries must be associated with the Veteran's claims file. If the SSA records are not available, the SSA should provide to VA a written response presenting the official reason(s) why these records are unavailable, and such should be associated with the claims file. 2. Forward the entire claims file, including a copy of this remand, to the VA examiner who conducted the November 2012 VA audiological examination, or another examiner if that individual is unavailable, to provide an addendum opinion. A full audiological examination should not be scheduled unless it is deemed necessary by the examiner or otherwise required by the evidence. The examiner must review the claims file in its entirety and must note that review in the report. The examiner should respond to the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral hearing loss had its onset during active service or is related to any in-service disease, event, or injury, to include conceded exposure to acoustic trauma? The examiner should provide a complete rationale for the conclusions reached. If an opinion cannot be reached without resorting to speculation, the examiner must explain why. In his rationale, the examiner should consider the conflicting medical evidence: the 2005 IOM study cited in the November 2012 opinion and the 2009 journal article (See Sharon G. Kujawa and M. Charles Liberman, Adding Insult to Injury: Cochlear Nerve Degeneration after "Temporary" Noise-Induced Hearing Loss, The Journal of Neuroscience, November 11, 2009) cited by the Veteran's representative that challenged the negative November 2012 opinion and its rationale's reliance, at least in part, on the concept that delayed onset hearing loss was unlikely. 3. Forward the entire claims file, including a copy of this remand, to the VA examiner who conducted the November 2012 back examination, or another examiner if that individual is unavailable, to provide an addendum opinion. A full VA examination should not be scheduled unless it is deemed necessary by the examiner or otherwise required by the evidence. The examiner must review the claims file in its entirety and must note that review in the report. The examiner should respond to the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's lower back condition was incurred in or caused by military service? The examiner should provide a complete rationale for the conclusions reached. In his rationale, the examiner should comment on the Veteran's statements regarding the in-service injury, as well as his claims of continuity of symptomatology. The examiner should also specifically comment on the April 2015 and August 2017 statements from the Veteran's private physicians (opining that the Veteran's back disability is likely related to service). If an opinion cannot be reached without resorting to speculation, the examiner must explain why. 4. After ensuring compliance with the above, readjudicate the claims on appeal. If any benefit sought on appeal remains denied, issue the Veteran and his representative a supplemental statement of the case and allow the appropriate time for response. Then, 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 (West 2012). ______________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs