Citation Nr: 1802200 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-12 086 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD J.R. Bryant INTRODUCTION The Veteran served on active duty in the United States Army from July 1987 to January 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating action issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In his substantive appeal dated in April 2014, the Veteran requested a Board hearing, but withdrew that request in October 2016. 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 The Veteran reports that his tinnitus began as a result of acoustic trauma during service and has continued since that time. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1154(a), 5103, 5103A, 5107(b) (2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA provided the Veteran with 38 U.S.C. § 5103(a)-compliant notice in a letter dated May 24, 2012. The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claim, including with respect to VA examination of the Veteran. The Veteran has not identified any deficiency in VA's notice or assistance duties. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Moreover, the Board's grant of service connection for tinnitus represents a complete grant of the benefits sought on appeal. Thus, no further discussion of VA's duty to notify and assist is necessary. Law and Analysis The Veteran is seeking service connection for tinnitus that he contends had its onset during service as a result of exposure to excessive noise. 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; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (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 disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Continuity of symptomatology may also provide a basis for a grant of service connection for diseases defined as "chronic" by VA, which include tinnitus. 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a); Fountain v. McDonald, 27 Vet. App. 258 (2015). After careful consideration of the evidence, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, any reasonable doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran's DD 214 lists his military occupational specialty (MOS) as an infantryman, thus he likely had some degree of noise exposure. See VBA Fast Letter 10-35 (September 2010). In addition, he reported that during basic training and advanced infantry training he was routinely exposed to noise from small arms fire, hand grenades, mortar rounds, and numerous other weapons that generated loud noises. The Veteran's reports of noise exposure in service are consistent with the facts and circumstances of his service. 38 U.S.C. § 1154(a). Accordingly, the Board finds that in-service noise trauma is established. Tinnitus is defined as a noise in the ear, such as ringing, buzzing, roaring, or clicking, that is usually subjective in type. Dorland's Illustrated Medical Dictionary 1956 (31st ed. 2007). And, indeed, because of the inherently subjective nature of tinnitus, it is readily capable of even lay diagnosis. Charles v. Principi, 16 Vet. App. 370 (2002). However there are no findings or diagnoses of tinnitus shown in service treatment records, including at separation examination in 1990. There is also no medical evidence suggesting that tinnitus was diagnosed within the one-year presumptive period after service. 38 C.F.R. §§ 3.307, 3.309. There are no pertinent clinical records associated with the claims file until a October 2012 VA examination report. The Veteran's report of inservice noise exposure from weapon fire and explosions was essentially the same. He denied any history of civilian occupational or recreational noise exposure. The Veteran also reported constant bilateral tinnitus, which had its onset about 5 years ago or longer. Findings from audiometric testing indicate clinically normal hearing in both ears and do not meet the criteria of disability under VA regulations. 38 C.F.R. § 3.385. The audiologist reviewed the file, including the history of noise exposure and concluded that the Veteran's tinnitus was not caused by military noise exposure. The basis for this rationale was that the Veteran's hearing thresholds were within normal limits, he made no complaints of tinnitus while in service, there was no documentation of acoustic damage in service treatment records, and the Veteran reported the onset of his tinnitus as about 5 years ago, which is after military service, so it was less likely as not that the tinnitus was related to service. In his February 2013, notice of disagreement, the Veteran suggested that the examiner may have misunderstood him during the VA examination. He explained that he did not tell the examiner that his tinnitus began five years ago. Instead it was five years ago that the Veteran found out that the ringing in his ears was tinnitus. However after carefully reviewing and weighing the competent medical evidence of record, the Board is satisfied that the evidence is in at least approximate balance as to whether the Veteran's current tinnitus are related to service. The unfavorable evidence in this case consists of the service treatment records which are entirely negative for pertinent complaints and the more than 20-year period during which the Veteran did not seek or require any form of treatment or evaluation for tinnitus. In addition, the VA audiologist concluded that the tinnitus was not a result of military noise exposure. While the Board cannot ignore or disregard the VA audiologist's medical conclusion, see Willis v. Derwinski, 1 Vet. App. 66 (1991), it is free to assess medical evidence and is not compelled to accept a medical opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). The Board does not find that the Veteran engaged in combat at any point in service. In this case, the VA opinion is problematic in that the for two reasons. First, the VA audiologist seemed to rely primarily on the Veteran's lack of tinnitus complaints during and at discharge from service. Second, in providing the negative opinion, the audiologist did not provide any reason why the in-service acoustic trauma was not a source of, or at least a contributing factor to, the Veteran's current tinnitus. Although the Veteran reported during the 2012 VA examination that his tinnitus began five years prior, he has since explained that it was five years ago that he learned that the ringing in his ears was a condition called tinnitus. As the VA opinion is not entirely adequate it does not assist the Board or the Veteran in resolving this claim and cannot serve as the basis of a denial of service connection. Moreover, the record also contains favorable evidence in the form of the Veteran's credible account of his likely exposure to some degree of acoustic trauma during service (as is confirmed by his military duties) and his competent descriptions of ringing in his ears since service (assertions that he is considered competent to make). Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Given the nature of a tinnitus condition, the Veteran is uniquely situated to competently identify and report on its onset and duration. Here, the Board finds his assertion that the tinnitus was incurred while in service is both competent and credible, and thus is positive evidence that supports a finding of nexus in this case. This supporting evidence places the pertinent record in relative equipoise. For these reasons, the Board resolves reasonable doubt in favor of the Veteran and grants service connection for tinnitus. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for tinnitus is granted. REMAND With regard to bilateral hearing loss, remand is required for an examination. As noted above an October 2012 VA audiogram indicated the Veteran's hearing was within normal limits per 38 C.F.R. § 3.385. He now reports that his hearing has worsened since the 2012 VA examination. Thus, in view of the possibility that there may now be hearing loss for VA purposes, the Veteran should be afforded a current audiological examination. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be scheduled for a VA audiological examination to ascertain the current level of his hearing loss. The examiner must utilize the appropriate Disability Benefits Questionnaire (DBQ). The audiologist should provide numeric interpretation of the audiogram and should set forth numeric values for the pure tone thresholds at 500, 1000, 2000, 3000, and 4000 Hz, as well as the speech recognition scores (Maryland CNC test). The examiner should clearly report the extent of the Veteran's disability in accordance with VA rating criteria, and offer an opinion as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that the Veteran's hearing loss is causally related to his military service. The audiologist must presume that the Veteran was exposed to hazardous noise during service. If it is the opinion of the examiner that the Veteran's bilateral hearing loss is not related to in-service noise exposure, an explanation must be provided to fully explain why the current symptoms are not consistent with the in-service noise exposure or why such exposure is not at least a "contributing factor." The audiologist should discuss the likelihood that the Veteran's current hearing loss is due to post-service intercurrent causes wholly unrelated to his military service, such as post-service employment or age-related issues. Note: The examiner is reminded that VA law and regulations do not preclude service connection for post-service hearing loss just because hearing was within normal limits at the time of separation from service. In other words, noting that hearing loss did not manifest in service as the sole basis for forming a negative nexus opinion, without additional explanation, will not be adequate. If the examiner cannot render an opinion without resorting to mere speculation, a full and complete explanation for why an opinion cannot be rendered should be provided. 2. After the above action is completed, if the decision is adverse to the Veteran, issue 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 or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2014). ______________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs