Citation Nr: 1807934 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 15-17 506 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral tinnitus REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jonathan Z. Morris, Associate Counsel INTRODUCTION The Veteran had active military service from March 1954 March 1955. He died in March 2017. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. 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) (West 2014). The claim of entitlement to service connection for bilateral hearing loss requires further development before being decided on appeal, so the Board is REMANDING this issue to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran's currently diagnosed bilateral tinnitus had its onset during his active military service. CONCLUSION OF LAW The criteria for service connection for bilateral tinnitus have been met. 38 U.S.C. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In this case, the Board is granting in full the benefits sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Legal Criteria for Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to successfully establish service connection, there must be competent and credible evidence showing (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain "chronic diseases" may be presumed to have been incurred in or aggravated by service if they manifest to a degree of 10 percent or more within one year of a Veteran's separation from service. 38 C.F.R. §§ 3.307, 3.309(a). This presumption is rebuttable by probative evidence to the contrary. Id. When a chronic disease is shown in service, sufficient 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 attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To be "shown in service," the disease identity must be established and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303(b). There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. Service connection may also be granted on a secondary basis for a condition that is not directly caused by the Veteran's service. 38 C.F.R. § 3.310. In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310(b). Thus, service connection may be established either by showing (1) direct service incurrence or aggravation, (2) an etiological relationship between the claimed condition and a service-connected disability, or (3) using applicable presumptions, if available. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In determining whether service connection is warranted for a disability, 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303(a). A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran. III. Service Connection for Tinnitus The Veteran seeks service connection for tinnitus, which he contends began as a result of noise exposure in service. Having carefully considered this claim, in light of the evidence of record and the applicable law, the Board concludes that the evidence is at least in equipoise with respect to whether the Veteran's tinnitus had its onset during service. Therefore, this claim will be granted. The Board will begin by addressing direct service connection. As noted above, the first element of direct service connection requires medical evidence of a current disability. In this case, the Veteran has a current diagnosis of bilateral tinnitus. See January 2011 Private Audiology Report. Additionally, the Veteran is competent to state that he now has tinnitus. See Charles v. Principi, 16 Vet. App 370, 374 (2002) ("ringing in the ears is capable of lay observation"). As a result, the Veteran has satisfied the first element of service connection. As previously mentioned, the second element of direct service connection requires medical evidence, or in certain circumstances, lay testimony, of an in-service incurrence or aggravation of an injury or disease. On September 2, 2010, VA issued Fast Letter 10-35, Modifying the Development Process in Claims for Hearing Loss and/or Tinnitus. This letter introduced the Duty MOS Noise Exposure Listing, a rating job aid for determinations regarding service connection for hearing loss and/or tinnitus. The Duty MOS Noise Exposure Listing is a compilation of Department of Defense-verified lists of MOSs and the corresponding probability of hazardous noise exposure. Based on a veteran's records, each MOS documented will be reviewed for a determination as to the probability of exposure to hazardous noise on the Duty MOS Noise Exposure Listing. If the MOS is shown to have a "Highly Probable" or "Moderate" probability of exposure to hazardous noise, exposure to such noise will be conceded for purposes of establishing an in-service event with respect to direct service connection. The Board notes that Fast Letter 10-35 was rescinded due to its incorporation into the VA Adjudication Procedures Manual (M21-1) and that substantively similar information is included in the M21-1. See M21-1, Part III, Subpart iv, Chapter 4, Section B, 4.e. Initially, the Board notes that the Veteran's DD Form 214 reflects that his military occupation specialty was Apprentice Fuel Specialist. The Veteran contends he was "exposed to the sounds of fighter-bombers, B47's, and other jets on a constant basis with no hearing protection. See Veteran's October 2011 Statement. Comparing this MOS to the Duty MOS Noise Exposure Listing shows that an MOS in Fuels as having a moderate probability of exposure to hazardous noise. Excessive noise exposure is consistent with the circumstances, conditions, and hardships of the Veteran's service environment. Accordingly, the Board finds that the evidence establishes the Veteran was exposed to loud noise (acoustic trauma) while in service. Based on evidence of service in a military occupation consistent with exposure to high levels of noise and acoustic trauma, the remaining question before the Board is whether the Veteran's currently diagnosed bilateral tinnitus is related to his active military service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). In light of the foregoing reasons, the evidence supporting the claim is, at the very least, as probative (meaning as competent and credible) as the evidence against the claim. Therefore, the Board is of the opinion that the point of equipoise has been reached in this appeal. The Veteran was exposed to loud aircraft noises during his active military service. The lay and medical evidence shows that the Veteran now has bilateral tinnitus. The Veteran is competent to testify that he developed a perception of noise in his ears in service and that it has continued ever since, due to tinnitus being a condition for which lay observation is competent to establish the presence of the disability. See Charles v. Principi, 16 Vet. App. 370 (2002). Moreover, the Board finds no reason to question the credibility of the Veteran's assertions of tinnitus dating back to his time of active service. The Board acknowledges medical evidence of record noting the Veteran's apparent denial of experiencing "tinnitus." However, while he denied a "ringing" in his ears, he consistently complained of experiencing a perception of noise in his ears since service, which was diagnosed as tinnitus. See, e.g. VA Treatment Record dated Dec. 6, 2006 (denying tinnitus, but described hearing a "quacking" sound); see also April 2015 VA Form 9 (indicating that the noises are like a "crackling" sound). Undoubtedly, further medical inquiry can be undertaken with a view towards further developing this claim. However, in this regard, the Court has cautioned VA against seeking an additional medical opinion where favorable evidence in the record is unrefuted (or, as here, at worst evenly balanced for and against the claim) and indicated that it would not be permissible to undertake further development in this circumstance if the sole purpose was to obtain evidence against an appellant's claim. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). But see also Douglas v. Shinseki, 23 Vet. App. 19 (2009) (distinguishing Mariano and contrarily holding that VA may undertake the development of additional evidence if it is necessary to render an informed decision on the claim). In the Board's opinion, the evidence supporting the onset of chronic bilateral tinnitus in service is at least in equipoise with that against the claim. Therefore, the Veteran is entitled to service connection for tinnitus. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for bilateral tinnitus is granted. REMAND The determination of whether a Veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. For the purposes of applying the law administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. In this case, the medical evidence confirms that, prior to his death, the Veteran had sufficient hearing loss to be considered an actual ratable disability as defined by VA regulation. 38 C.F.R. § 3.385. Moreover, due to serving in the military occupation of Apprentice Fuel Specialist, the Board has conceded the Veteran's exposure to hazardous noise for purposes of establishing the necessary in-service event needed for service connection. Based on evidence of service in a military occupation consistent with exposure to high levels of noise and acoustic trauma, the remaining question before the Board is whether the Veteran's currently diagnosed hearing loss disability is related to his active military service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). As an initial matter, the Board notes that the Veteran's service treatment records are fire-related-in other words, they were destroyed or damaged by a fire at the National Personnel Records Center (NPRC) facility in 1973. As a result, the Board recognizes that VA's duty to assist, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule is heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). The Veteran was afforded a VA audiology examination in October 2011, where the examiner was unable determine how much the military may have contributed to his current hearing loss, if at all, without resorting to mere speculation or being able to review service medical records and service hearing tests, if any. See also January 2011 Private Audiology Report (indicating that while previous audiology reports were unavailable, based on the Veteran's reported history and current test results, it cannot be ruled out that his military noise exposure is a contributing factor to his hearing loss and tinnitus). However, as the medical evidence of record does not include any opinion as to the relationship, if any, between the Veteran's now service-connected tinnitus and his bilateral hearing loss, the Board finds that it would not be unreasonable to request a medical opinion. Therefore, on remand, an opinion must be obtained addressing whether the Veteran's bilateral hearing loss was proximately due to or aggravated by his bilateral tinnitus disability. 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. Contact the appropriate VA Medical Center(s) and obtain all outstanding treatment records if relevant to these claims. Also, ask the appellant to provide, or authorize VA to obtain, all relevant private medical records that have not been obtained. All efforts to obtain these records must be documented in the claim file and the appellant properly notified if unable to obtain identified records. 38 C.F.R. § 3.159(c) and (e). 2. After all available records have been associated with the claims file, request a medical opinion from a suitably qualified VA audiologist regarding the Veteran's bilateral hearing loss disability. His claims file, including a copy of this remand, must be made available to the examiner for review of the history of this disability. Following complete review of the record, the examiner is asked to opine on whether it is at least as likely as not (50 percent probability or more) that the Veteran's bilateral hearing loss was proximately due to or aggravated by his service-connected tinnitus? The examiner should note that the term "aggravated by" refers to "any increase in severity" of a nonservice-connected disability that is proximately due to or the result of a service-connected disability, and not due to the natural progress of the nonservice-connected disability. If the examiner opines that the Veteran's service-connected tinnitus has aggravated his bilateral hearing loss, then the examiner should specify, so far as possible, the degree of disability resulting from such aggravation. The examiner is advised that the Veteran's service treatment records are fire-related and that there is no separation examination or other service treatment records available for review. The examiner should carefully consider the Veteran's lay statements regarding the onset of his hearing impairment and continuous nature of his symptoms since service. Additionally, the examiner should closely review the Veteran's VA and private treatment records when considering the development of the hearing loss disability over time. The examiner must provide a complete rationale for any opinion given. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must explain why a more definitive response is not possible or feasible. In other words merely saying he or she cannot respond will not suffice. 3. Ensure that the requested examination report is responsive to the applicable rating criteria. If it is not, obtain all necessary additional information. Stegall v. West, 11 Vet. App. 268, 271 (1998); 38 C.F.R. § 4.2. 4. After completing the above and any other development deemed necessary by the AOJ, readjudicate the claim remaining on appeal. If service connection remains denied, send the appellant and her representative a Supplemental Statement of the Case (SSOC), and give them time to respond to it before returning the file to the Board for further appellate consideration of this claim. The appellant 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. §§ 5109B, 7112 (West 2014). ______________________________________________ M. H. Hawley Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs