Citation Nr: 1804495	
Decision Date: 01/24/18    Archive Date: 02/05/18

DOCKET NO.  14-11 401	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Entitlement to service connection for bilateral hearing loss.

2. Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

N. Peden, Associate Counsel





INTRODUCTION

The Veteran had active service from July 1970 to September 1972 to include service in Vietnam.  This current matter comes to the Board of Veteran's Appeals (Board) on appeal from a rating decision dated October 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

The issue of entitlement to service connection for bilateral hearing loss is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


FINDING OF FACT

Resolving reasonable doubt in his favor, the Veteran has tinnitus attributable to his active military service.


CONCLUSION OF LAW

The Veteran has tinnitus that is the result of disease or injury incurred during active military service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). 


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The duty to notify has been met. See February 2011 VA correspondence. All identified and authorized records relevant to the matters have been requested or obtained, including available service treatment records, VA treatment and examination reports, addendum medical opinions, and statements in support of the claims. The available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations, and to adjudicate this claim would not cause any prejudice to the appellant.  Any notice or duty-to-assist deficiency is rendered moot by the grant of the claim for service connection herein.

II. Analysis


Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; Caluza v. Brown, 7 Vet. App. 498, 506 (1995). 

Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease; or (b) when a chronic disease is not shown as such during service, by evidence of continuity of symptomatology. However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 

In adjudicating a claim for VA benefits, 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(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

Here, the Veteran contends that he has tinnitus attributable to noise exposure he incurred on active duty. The Veteran has been diagnosed with tinnitus. His DD Form 214 indicates that his military occupational specialty was that of a rotary wing pilot and that he was honored with the Aviator Badge and Air Medal with 9 Oak Leaf Clusters. He further asserts that he was not given hearing protection while in the military. His in-service exposure to acoustic trauma is therefore conceded. 

The Veteran has consistently maintained that he first noticed ringing in his ears in service and has continued to experience the same symptoms from that time to the present.  Review of the Veteran's service treatment records reflects that they are silent as to any complaints of, or treatment for, tinnitus. His April 1970 entrance examination noted normal bilateral hearing without mention of tinnitus, and at his September 1972 separation medical examination, he was also noted to have normal bilateral hearing without mention of tinnitus. Post-service treatment records reflect that the Veteran has been diagnosed with tinnitus.

The Veteran was afforded a VA audiological examination in April 2011. The examiner did not list the pure tone hearing levels for each auditory frequency tested, but did note hearing loss was present with subjective tinnitus. The examiner further opined, after review of the Veteran's military files, that acoustic trauma was conceded. After examination, the examiner opined that the claimed tinnitus was not caused by in-service noise exposure.  As rationale, the examiner simply stated that the "Veteran's hearing was normal at enlistment and separation". 

The Veteran has submitted several statements in support of his service connection claim. To that end, he has stated on multiple occasions that he was exposed to acoustic trauma and that his tinnitus began as a result of that exposure.

In adjudicating this claim, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). The Board must also assess the credibility, and therefore the probative value, of the evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429 (1995). In determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995).

As an initial matter, the Board notes that ringing in the ears is the type of symptom that is readily amenable to lay observation as it is subjective to the claimant.  Thus, the Veteran is competent to report his symptoms and their frequency. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Several examination records note the Veteran's continued reports detailing his tinnitus and his contention that he was exposed to loud sounds in service. Nothing in the record contradicts his statements, and his statements are generally consistent with the circumstances of his service. The Board finds the Veteran's statements are credible and probative.

Upon consideration of the above evidence, the Board finds that, resolving reasonable doubt in the Veteran's favor, a grant of service connection for tinnitus is warranted. The evidence shows a current diagnosis of tinnitus, which the Veteran has reported began during service and has continued from that time to the present. With regard to the Veteran's complaints of in-service noise exposure, the Board finds credible his account of noise exposure in service as it is consistent with his military personnel records. 

The Board acknowledges that the April 2011 VA examiner stated that he was unable to conclude with at least fifty percent certainty that the Veteran's tinnitus began in, or is otherwise etiologically linked to, his military service. However, the Board finds inadequate the rationale for this opinion that the "Veteran's hearing was normal at enlistment and separation." The absence of evidence of tinnitus in service is not a bar to service connection for tinnitus.  Hensley v. Brown, 5 Vet. App. 155 (1993). Further, this medical opinion did not give due consideration to the Veteran's competent account of the onset of symptoms in service and their continuity thereafter, or to his credible and corroborated report of noise exposure in service. Thus, the Board finds that the April 2011 examination is less probative than the Veteran's statements and medical diagnosis of tinnitus in finding that the Veteran's tinnitus is likely linked to active duty. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). 

Based upon the Veteran's noise exposure in service and reports of continuous symptoms since service, the Board finds that tinnitus is a result of military service. With resolution of reasonable doubt in the Veteran's favor, service connection for tinnitus is warranted.

ORDER

Entitlement to service connection for tinnitus is granted.


REMAND

After review of the record, the Board regrettably finds that a remand for further development is warranted.  The Board notes that personnel records reflect that the Veteran was exposed to acoustic trauma during active service, to include his DD-214 detailing his work as a rotary wing pilot and his award of the Aviator Badge and Air Medal with 9 Oak Leaf Clusters. As such, the Board concedes acoustic trauma. 

As the Veteran has claimed continuity of hearing loss symptoms since active service, he was afforded a VA audiologic examination in April 2011. The examiner opined that the Veteran had normal hearing with hearing loss. This opinion is ambiguous and is facially inconsistent. Additionally, the examination report does not provide specific audiologic findings and is therefore inadequate for rating purposes. 38 C.F.R. § 3.385.   

Accordingly, the case is REMANDED for the following action:

1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. Request that the Veteran identify any recent private treatment pertinent to his claims and provide information and authorization sufficient for VA to assist him in obtaining any pertinent medical records not yet associated with the record.

2. Upon receipt of all additional records, if any, schedule the Veteran for a VA audiologic examination to determine the nature and etiology of any bilateral hearing loss. The entire record, including a complete copy of this Remand, must be made available to the examiner for review, and the examiner must indicate in the examination report that the record was reviewed in conjunction with the examination, including for the history of the claimed disability. 

The examiner is asked to opine as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed hearing loss disability had onset during the Veteran's service or within one year of service discharge-or is otherwise etiologically related to service, to include the conceded in-service noise exposure.  In rendering this opinion, the examiner should specifically consider any lay statements given by the Veteran concerning his exposure to acoustic trauma while in service. 
 
A complete and thorough rationale must be provided for all opinions. If the examiner cannot provide an opinion without resorting to speculation, then he or she must provide a complete and thorough rationale as to why an opinion cannot be provided. 

3. Finally, readjudicate the claim for service connection for bilateral hearing loss. If the claim is denied or not granted to the Veteran's satisfaction, send him a Supplemental Statement of the Case (SSOC) and give him and his representative opportunity to respond before returning the file to the Board for further appellate consideration of the claim

No action is required of the Veteran until he is notified by VA.  However, he is advised of his obligation to cooperate in ensuring that the duty to assist is satisfied.  Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991).  His failure to help procure treatment records-or to report for a VA examination, may impact the decision made.  38 C.F.R. § 3.655 (2017).  He is advised that he has the right to submit additional evidence and argument, whether himself or through his representative, with respect to this matter.  Kutscherousky v. West, 12 Vet. App. 369 (1999). It must be afforded prompt treatment.  The law indeed requires that all remands by the Board or the United States Court of Appeals for Veterans Claims (Court) be handled in an expeditious manner.  38 U.S.C. §§ 5109B, 7112.  




_________________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs