Citation Nr: 1804524	
Decision Date: 01/24/18    Archive Date: 02/05/18

DOCKET NO.  14-27 906A	)	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.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

K. Thompson, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Air Force from December 1963 to January 1968.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In December 2017, a Board videoconference hearing was held before the undersigned; a transcript of the hearing is associated with 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(s) 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 all doubt in the Veteran's favor, tinnitus is etiologically related to his period of active service.


CONCLUSION OF LAW

Service connection for tinnitus is warranted.  38 U.S.C. §§ 1110, 1154(b), 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

Under the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations, VA has a duty to notify and assist the claimant in substantiating a claim for VA benefits.  See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The Veteran's claim has been considered with respect to VA's duty to notify and assist.  Other than the matters addressed in the remand section, the outcome below is favorable.  Thus, no conceivable prejudice to the Veteran could result from this adjudication.  See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). 

II.  Service Connection

Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C. §§ 1110, 1131.

To establish service connection the evidence must show: (1) a present disability; (2) an 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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

When a chronic condition (e.g., tinnitus) is present, a claimant may establish the second and third elements by demonstrating continuity of symptomatology.  38 C.F.R. § 3.303 (b).  Certain chronic diseases (e.g., tinnitus) may be presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service.  38 C.F.R. §§ 3.307, 3.309; see also Fountain v. McDonald, 27 Vet. App. 258 (2015) (declaring that tinnitus is, in the Court's opinion, an "organic disease of the nervous system").  

The Board has reviewed the record and finds that the criteria for service connection for tinnitus have been met.  See 38 C.F.R. § 3.303.

The evidence shows a current diagnosis of tinnitus.  In a September 2012 VA examination, the Veteran reported recurrent tinnitus.  VA treatment records also reflect treatment for tinnitus.  Thus, a current disability has been established by the evidence.

The evidence also shows in-service noise exposure and onset of tinnitus.  In a January 2013 statement, the Veteran asserted that his tinnitus began in-service.  He stated that he was a B-52 crew member and that, at that time, crew members were not provided any ear protection, which caused his tinnitus.  He also stated that he did not report his tinnitus because he did not want to lose his flying bonus and flight pay.  The Veteran's Form DD-214 demonstrates that the Veteran's military occupation specialty (MOS) was Navigator.  The September 2012 VA examination found that acoustic trauma was highly probable and conceded it.  

The remaining question is whether tinnitus is related to the in-service noise exposure.

In the instant case, the September 2012 VA examiner determined that the Veteran's tinnitus was not related to military service.  Even though the VA examiner provided a negative etiological opinion, the Board again observes service connection may be established upon a showing of continuity of symptomatology.  See 38 C.F.R. § 3.303(b).  Furthermore, tinnitus is the type of disorder associated with symptoms capable of lay observation.  See Charles v. Principi, 16 Vet. App. 370 (2002).  The Board is within its province to weigh that testimony 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).  The Veteran is competent to report that he has tinnitus, and has indicated that he has suffered from tinnitus since military service.  The Board also finds the Veteran's statements regarding the onset of tinnitus credible.  Again, for chronic diseases under 38 C.F.R. § 3.309(a), service connection may be awarded solely based on evidence of continuity of symptomatology.  See Fountain v. McDonald, 27 Vet. App. 258, 272 (2015) (clarifying that the Federal Court's decision in Walker does not preclude establishing service connection for tinnitus on the basis of continuity of symptoms, because tinnitus is an "organic disease of the nervous system," which is listed in § 3.309(a)).

Thus, accepting his lay statements, and resolving reasonable doubt in his favor, the Board finds that service connection is warranted for tinnitus.  38 U.S.C. § 5107(b).


ORDER

Entitlement to service connection for tinnitus is granted.


REMAND

The Board regrets further delay, but additional development is necessary to adjudicate the remaining claims.  

The Veteran underwent a VA audio examination in September 2012.  At that time, the examiner found the Veteran's current bilateral hearing loss was less likely than not due to noise exposure in service as his in-service audiograms were within normal limits.  The Board finds that this opinion is inadequate because the opinion failed to take into account any lay statements from the Veteran regarding any symptoms the Veteran experienced following service.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  Another examination should be obtained.

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.  Obtain any relevant and outstanding VA treatment records and associate them with the electronic claims file.

2.  After completion of directive #1, schedule the Veteran for a VA audio examination with an appropriate medical professional to determine the nature and etiology of the Veteran's diagnosed bilateral hearing loss.  All appropriate tests, studies, and consultations should be accomplished and all clinical findings should be reported in detail.  The claims file must be made available to and reviewed by the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions.

The examiner is asked to answer the following question:

Is it at least as likely as not (50 percent probability or greater) that the Veteran's bilateral hearing loss had its onset in service or is otherwise medically related to any period of active service?

In considering the audiometric testing complete during service, the examiner should consider testing completed prior to January 1, 1967 in assumed to have been completed using American Standards Association (ASA) standards and that conducted during the remainder of the Veteran's service may have been conducted using this standard.  Such testing should be converted to International Standards Organization - American National Standards Institute (ISO-ANSI).

A report of the examination should be prepared and associated with the Veteran's claims file.  A complete rationale must be provided for all opinions rendered that includes consideration of the Veteran's lay statements.  If the examiner cannot provide the requested opinions without resorting to speculation, he/she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation.

3.  After completing all actions set forth above and any further action needed as a consequence of the above development, readjudicate the claims on appeal, to include reviewing the issue of service connection for a bilateral hearing loss based on all evidence of record to include the recent VA examination.  If the benefit on appeal remains denied, the RO should furnish to the Veteran and his representative an appropriate Supplemental Statement of the Case and allow the appropriate time for response.  Then return the case to the Board for further appellate 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. §§ 5109B, 7112 (2012).




______________________________________________
Nathaniel J. Doan
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs