Citation Nr: 1804875 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-27 595 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. Bassett, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1973 to April 1976 and April 1976 to January 1977. This case is before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In June 2017, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of the testimony is associated with the claims file. 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 AOJ. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, the evidence shows that the Veteran has tinnitus that was incurred in service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107(b) (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 As the Board's decision below represents a complete grant of the benefits sought on appeal, namely the grant of service connection for tinnitus, and remands the remaining issues, discussion of the Duties to Notify and Assist is not required. III. Service Connection The Veteran seeks service connection for tinnitus. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 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. E.g., Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting from disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). The Veteran is currently diagnosed with tinnitus. Tinnitus, as an organic disease of the nervous system, is a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the Board finds that the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease evidenced as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Lay evidence has been found to be competent with regard to a disease that has "unique and readily identifiable features" that are "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (providing that a veteran's testimony regarding tinnitus is competent evidence, as "ringing in the ears is capable of lay observation"). Analysis The Veteran asserts that his tinnitus disability began in service. Here, the first Shedden element is satisfied as the Veteran is competent to identify tinnitus by its observable manifestations. Charles, 16 Vet. App. at 374-75. This diagnosis is confirmed by the June 2013 VA examiner's report. The second Shedden element is met as the Veteran credibly reported in-service noise exposure, including exposure to small arms, machine guns, and explosions. The Veteran reported that he worked with supplies, which is consistent with his DD-214, and that this required him to camp overnight. During these exercises the Veteran reported shooting machine guns and being exposed to explosions. As such, there is sufficient evidence to concede in-service noise exposure. The remaining question is whether there is sufficient evidence a nexus between the Veteran's in-service noise exposure and his current tinnitus. The June 2013 VA examiner concluded that the Veteran's tinnitus is less likely as not related to the Veteran's service or caused by acoustic trauma in service. The VA examiner noted that the Veteran's separation examination did not reflect tinnitus. However, the VA examiner did not have access to the Veteran's testimony at the June 2017 hearing. The Veteran credibly testified that ringing in his ears began in service and has continued thereafter. The VA examiner did not have access to this testimony and therefore the conclusions are based on a partial record. Thus, they are of limited probative value. Further, as noted above, tinnitus is a disability the Veteran is competent to identify. Charles, 16 Vet. App. at 374-75. There is no reason to doubt the credibility of the Veteran's reports and he is competent to report the continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (noting that a Veteran is considered competent to report on that of which he or she has personal knowledge). Affording the Veteran the benefit of the doubt, the Board finds that the Veteran is credible in his reporting of continuous symptoms since service. After a review of the evidence of record as a whole, and in light of the foregoing, the Board finds that the Veteran had noise exposure in service and currently has tinnitus. Additionally, the Board finds persuasive the competent opinion of the Veteran relating his current tinnitus to his in-service tinnitus. Resolving reasonable doubt in the Veteran's favor, service connection for tinnitus therefore warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for tinnitus is granted. REMAND In June 2013, the Veteran attended a VA examination to evaluate the etiology of his claimed hearing loss. The VA examiner opined that the Veteran's hearing loss is not at least as likely as not related to his service because the Veteran's entrance examination showed hearing loss, but the separation examination was within normal limits bilaterally. However, the VA examiner provided no explanation for how the Veteran's hearing got better during service. The Veteran's representative argued at the June 2017 hearing that improvement of auditory acuity despite noise exposure is improbable, and the VA examiner was not provided the opportunity to address this assertion. Further, the VA examiner did not have access to the Veteran's testimony at the hearing describing his noise exposure during service or noting that his symptoms of tinnitus began in service and continued to the present. Since the claims file is being returned it should be updated to include any recent VA treatment records that are not of record. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any other outstanding records of pertinent medical treatment from VA or private health care providers, to obtain the treatment records identified by the Veteran. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. After the above development has been completed and all records associated with the claims file, the Veteran must be afforded a VA examination by an examiner with appropriate expertise to determine the nature and etiology of any hearing loss. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims file, including a copy of this remand, should be provided to the examiner in connection with the examination, and the examiner should indicate that the Veteran's records have been reviewed. The examiner should specifically note review of the service treatment records indicating a reduction in hearing loss in the right ear on service entrance, the in-service audiograms, the Veteran's exit examination reflecting no hearing loss, and the Veteran's testimony at the June 2017 hearing. The examiner should then: a) Address the Veteran's representative's argument from the June 2017 hearing that the Veteran's exit examination is not an accurate reflection of the Veteran's hearing loss because a hearing loss disability would not improve during service, especially with noise exposure as conceded in this case. The examiner is advised that the Board has found the Veteran's reports of tinnitus beginning in service to be credible. b) Provide an opinion, with supporting clinical rationale, as to whether the Veteran's hearing loss was at least as likely as not (i.e. a 50 percent or greater probability) aggravated beyond its natural progression by the Veteran's active duty service. The examiner should specifically acknowledge that the Board has conceded that the Veteran's tinnitus began in service and also that he had in-service noise exposure. The examiner should reconcile any opinion with all other clinical evidence of record, including relevant lay statements, service treatment records, and ongoing medical records. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. The complete rationale for any opinion offered should be provided. If the examiner finds that he or she cannot provide a nexus opinion without resorting to speculation, the examiner must explain why he or she is unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability. 3. After the above development has been completed, readjudicate the Veteran's claim. If the benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case, and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs