Citation Nr: 18145651 Decision Date: 10/30/18 Archive Date: 10/29/18 DOCKET NO. 14-28 540 DATE: October 30, 2018 ORDER The claim of entitlement to service connection for tinnitus is granted. REMANDED The claim of entitlement to service connection for right ear hearing loss is remanded. FINDING OF FACT The Veteran has credibly asserted experiencing significant in-service noise exposure; he currently has tinnitus; and the record includes competent, credible, and probative lay assertions that he began to experience symptoms of tinnitus in service (coincident with noise exposure), and that such symptoms have been recurrent to the present. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1966 to September 1968. This appeal to the Board of Veterans’ Appeals (Board) arose from a July 2012 simplified notification letter in which the Department of Veterans Affairs (VA) Regional Office (RO), inter alia, denied service connection for bilateral hearing loss and tinnitus. The Veteran disagreed with those determinations, and this appeal ensued. In November 2016, the Board denied service connection for bilateral hearing loss and tinnitus. The Veteran appealed the Board’s November 2016 denials of service connection for right ear hearing loss and tinnitus to the United States Court of Appeals for Veterans Claims ((Court). In February 2018, the Court issued a Memorandum Decision vacating the Board’s decision and remanded the claims for further proceedings consistent with the Court’s decision. Also, this appeal has been advanced on the Board’s docket, pursuant to 38 U.S.C. § 7107 and 38 C.F.R. § 20.900. The Board notes that after certification of the appeal to the Board, additional relevant VA examination report and treatment records were associated with the record without a waiver of initial agency of original jurisdiction (AOJ) review. See 38 C.F.R. § 20.1304. As explained below, however, as the Board is granting the claim for service connection for tinnitus, there is no prejudice to the Board proceeding to a decision on that matter, at this juncture. Also, as the Board is remanding the claim for service connection for hearing loss, the agency of original jurisdiction (AOJ) will have opportunity to review the additional evidence received on remand. Service Connection The Veteran contends that his current tinnitus is the result of in-service noise exposure. Service connection may be granted for current disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303, 3.304. Service connection may also 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). Generally, to establish service connection, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The determination as to whether elements are met is based on an analysis of all the evidence of record and the evaluation of its competency, credibility and probative value. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Baldwin v. West, 13 Vet. App. 1, 8 (1999). If a chronic disease, such as an organic disease of the nervous system, becomes manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of such disease during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1111, 1112, 1113, 1137; 38 C.F.R. § 3.307, 3.309. The Court has held that, with evidence of in-service noise exposure, tinnitus is considered an organic disease of the nervous system, falling within the parameters of 38 C.F.R. § 3.309(a). Fountain v. McDonald, 27 Vet. App. 258, 259 (2015). With chronic diseases shown as such in service (or within the presumptive period under 38 C.F.R. § 3.307) to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic, or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that the provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection based on continuity of symptomatology (in lieu of a medical opinion) apply only to chronic diseases as defined in 38 C.F.R. § 3.309 (a). 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 a claimant 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). Turning to the elements of service connection, with respect to the matter of current disability, the September 2011 examining VA audiologist diagnosed the Veteran with recurrent tinnitus. This evidence meets the current disability requirement for service connection. With respect to the in-service injury or disease requirement (here, noise exposure), the Board notes that while the Veteran's service treatment records do not document the occurrence of, or treatment for, any specific incident of acoustic trauma, the Veteran is competent to assert the occurrence of an in-service injury, to include noise exposure. See Gottveit v. Brown, 5 Vet. App. 91 (1991). In this regard, as for in-service injury claimed as significant noise exposure, the Veteran’s DD Form 214 reflects that his awards and decorations include the sharpshooter badge and his military occupational specialty (MOS) was a light vehicle driver. The Veteran has also indicated that while driving, other service members were firing shots. Receipt of this award and his MOS tends to support the Veteran’s assertion that he was exposed to significant noise from small arms fire in service. Given the nature and location of the Veteran's service, his assertions of significant in-service noise exposure-which may have resulted in acoustic trauma-appear consistent with the circumstances of his service. See 38 U.S.C. § 1154. As the Board finds no reason to question the veracity of the Veteran's assertions in this regard, they are also considered credible. As such, the in-service injury or event requirement also has been met. Regarding the third criterion of whether there exists a nexus between the current tinnitus and service, the Board notes that the Veteran's service treatment records document no complaints, findings or diagnosis pertinent to tinnitus. As indicated, however, the Veteran is competent, as a layperson, to report that about which he has personal knowledge, including the onset, presence, and nature of symptoms, to include ringing or buzzing in his ears. On September 2011 VA examination, the Veteran reported that his tinnitus began in service and occurred gradually; he also reported no exposure to loud noises outside of military service and that he used hearing protection while working in manufacturing facilities. Again, the Board finds no reason to question the veracity of the lay assertions in this regard. Thus, while there is no documented evidence of tinnitus during, and continuing since, service, there are competent, credible, and hence, credible lay assertions indicating that tinnitus manifested during the Veteran's military service, and have continued to date. The Board acknowledges that in the only medical opinion to address the etiology of tinnitus, a September 2011 audiologist provided an opinion weighs against the claim. The examiner opined that the Veteran’s exposure to hazardous noise after service was far greater than his exposure during service and given the passage of forty-three years following service, the diagnosis of recurrent tinnitus is less likely than not caused by military noise exposure. However, the examiner appears to have not considered the Veteran's assertions as to experiencing ringing in the ears after exposure to artillery fire during service. As this opinion was not based on a full consideration of all evidence of record, to include all lay assertions, it is of limited probative value. Thus, there is no persuasive medical etiology opinion of record. The Board emphasizes, however, that such an opinion is not needed in this case. As indicated, tinnitus is among the chronic diseases listed at 38 C.F.R. § 3.309 (a) for which service connection may be granted based on continuity of symptomatology, in lieu of a medical nexus opinion. Moreover, tinnitus is a rare type of disability for which, in most cases, service connection may be established when there is credible lay evidence of continuity of symptomatology since service. See Charles v. Principi, 16 Vet. App. 370 (2002). See also Savage v. Grober, 10 Vet. App. 488, 495-97 (1997). Given the likely nature of this Veteran’s disability, the Board finds that his competent and credible, an, hence, probative lay assertions of experiencing tinnitus associated with noise exposure in service, continuing to experience tinnitus after service, and currently experiencing tinnitus, tends to establish a nexus between the Veteran's current tinnitus and his active service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 3.102; see also 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 53-56. Given the totality of the evidence, to particularly include the Veteran's credible lay assertions discussed above, and resolving all reasonable doubt on certain elements of the claim in the Veteran's favor, the Board concludes that the criteria for service connection for tinnitus are met.   REASONS FOR REMAND The Board finds that further action on the remaining claim on appeal is warranted, As explained above, the Veteran's contends he had loud noise exposure from artillery fire by other service members in the truck that he drove during his Vietnam service. While the Court noted that Board should determine whether such incident involved combat, as indicated above, the Board has determined that he likely had noise exposure from shots fired by his fellow service members (and thus, need not explore whether such noise exposure was from enemy forces during combat). Notably, a March 2011 VA treatment record reflects the Veteran’s report that he “saw no combat in Vietnam and drove a truck delivering sea rations to troops”. He reported one incident where his convoy was under small arms fire and reported no one was hurt/killed. The Veteran denied witnessing any atrocities or tragedies, and reported that most of his military time there “was safe with no hostilities.” In sum, the Board has accepted the Veteran’s assertions of experiencing in-service noise exposure as credible and generally consistent with the circumstances of his service. Given this determination, on remand, the AOJ should arrange to obtain an addendum opinion from the examiner who provided the November 2013 opinion or, if necessary, from another appropriate audiologist or another appropriate physician based on claims file review (if possible). The AOJ should only arrange for further examination of the Veteran if one is deemed necessary in the judgment of the individual designated to provide the addendum opinion. Prior to undertaking action responsive to the above, to ensure that that all due process requirements are met and the record is complete with respect to the matters, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As for VA records, the claims file reflects that the Veteran has been receiving treatment from the Ann Harbor and Battle Creek VA Medical Centers (VAMC) and that records dated through March 2013 and June 2014, respectively, are associated with the file; however, more recent records may exist. Hence, records date since these dates should be obtained. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the appeal (to include regarding private (non-VA) treatment), explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b)(1); but see 38 U.S.C. § 5103(b)(3) clarifying that VA may decide a claim before the expiration of the one-year notice period). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the remaining claim on appeal. The matter is hereby REMANDED for the following action: 1. Obtain from the Ann Harbor VAMC and the Battle Creek VAMC any outstanding records of VA evaluation and/or treatment of the Veteran, dated since March 2013 and June 2014, respectively. Follow the procedures set forth in 38 C.F.R. § 3.159 (c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information concerning, and if necessary, appropriate authorization to enable VA to obtain, any additional evidence pertinent to the remaining claim on appeal that is not currently of record. Specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent, private (non-VA) records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses from each contacted entity has been associated with the claims file, arrange to obtain an addendum opinion from the examiner who provided the November 2013 opinion. If that individual is no longer employed by VA or is otherwise unavailable, document that fact in the claims file, and arranged to obtain an addendum opinion from an appropriate audiologist or physician based on claims file review (if possible). Only arrange for the Veteran to undergo examination if one is deemed necessary in the judgment of the physician designated to provide the addendum opinion. The contents of the entire, electronic claims file to include a complete copy of this REMAND, must be made available to the designated individual, and the addendum opinion/examination report should include discussion of the Veteran's documented history and lay assertions. Based on consideration of the entire record, the clinician should provide a medical opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran’s right ear hearing loss had its onset during service, or is otherwise medically related to service, to particularly include likely in-service noise exposure to artillery gunfire, which the Veteran has credibly asserted. In addressing all the above, the clinician must consider and discuss all relevant medical evidence and all lay assertions—to include the Veteran's competent and credible assertions as to in-service events, and as to the nature, onset, and continuity of symptoms of diminished hearing. Complete, clearly-stated rationale for the conclusions reached must be provided. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998) 6. After completing the above requested action, and any additional notification and/or development deemed warranted, adjudicate the remaining claim on appeal, considering all pertinent evidence (to include all evidence added to the electronic claims since the last adjudication) and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Sarah Campbell