Citation Nr: 1808831 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 13-31 358 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for hearing loss of the right ear. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: North Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD N.K., Associate Counsel INTRODUCTION The Veteran served with active duty in the Navy from March 1972 to August 1974, from February 1983 to August 1993, and from October 2006 to March 2008. It appears that the Veteran was in the Navy reserve thereafter, through 2011. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by the Department of Veteran's Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran provided testimony at a November 2016 Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. The issue of service connection for right ear 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 The Veteran's tinnitus began during active military service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103(a), 5103A (2014); 38 C.F.R. §§ 3.159, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Tinnitus With respect to the Veteran's claim for entitlement to service connection for tinnitus, because it is granted in full, VA's duties to notify and assist are deemed fully satisfied and there is no prejudice to the Veteran in proceeding to decide the issue on appeal. See 38 U.S.C. §§ 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2017). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2014); 38 C.F.R. § 3.303(a) (2017). 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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). In addition, service connection for certain chronic diseases, including tinnitus (an organic disease of the nervous system), may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2014); 38 C.F.R. §§ 3.307, 3.309(a) (2017); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2017). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Pursuant to the rating schedule, a maximum 10 percent evaluation is assigned for recurrent tinnitus. 38 C.F.R. § 4.87, Diagnostic 6260 (2017). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran filed a claim for service connection for tinnitus in November 2011. Tinnitus is, by definition "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." Dorland's Illustrated Medical Dictionary, 1914 (30th ed. 2003). The Veteran reported at his November 2016 Board hearing that his tinnitus began with his hearing loss as a result of his 1984 in service incident in which both his ears were blocked following flight training in a pressure chamber. This incident is noted in November 1983 service treatment records. The Veteran reported that he has ringing in his ears, specifically a high pitched shrill. The Board notes that in an August 2011 report of medical history during the Veteran's reserve service, the Veteran reported having ringing in both ears. Furthermore, the Veteran was afforded a VA examination in March 2012 for his tinnitus. At that examination the examiner found that the Veteran reported recurrent tinnitus which began when he was in service following his 1984 incident. The Board notes that the examiner found it was less likely than not that the Veteran's tinnitus was caused by or related to his service, because the Veteran's hearing at audiograms following the 1984 incident was normal. The Board finds that service connection for tinnitus is warranted. First, there is a current disability as the Veteran has competently reported he has ringing on his ears. See Charles v. Principi, 16 Vet. App. 370 (2002) (holding that tinnitus is a type of disorder that is capable of lay observation). Second, the Veteran has asserted that his tinnitus existed since service discharge. See Charles, 16 Vet. App. 370. The Board finds each of these statements competent and credible as there are no conflicting statements in the claims file. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Accordingly, they are assigned significant probative value. The March 2012 VA examination is not assigned any probative value as it failed to consider the Veteran's 2011 report of medical history reporting tinnitus and is thus based on inaccurate information. Kowalski v. Nicholson, 19 Vet. App. 171, 179-80 (2005) (noting that although the Board may not reject a medical opinion solely because it is based on facts reported by the veteran but may do so where the facts are inaccurate or are unsupported by the other evidence of record). Accordingly, the probative evidence of record established that tinnitus is related to active service. ORDER Service connection for tinnitus is granted. REMAND Regarding the right ear hearing loss, a new VA examination and opinion is necessary to clarify whether the Veteran has a diagnosis of right ear hearing loss and whether such is related to his service. The Veteran was provided VA audiological examinations for his bilateral hearing loss in March 2012. After examination of the Veteran, the examiner found that there was not right ear hearing loss for VA purposes. However, the Veteran testified at a November 2016 Board hearing that his hearing loss has worsened since the examination, such that it is possible that hearing loss for VA purposes now exists. The Board finds that the Veteran should be afforded another VA examination to determine if his hearing loss has risen to the level sufficient for VA purposes. Finally, the record indicates that the Veteran may have ACDUTRA service. Therefore, the Board finds necessary to verify the Veteran's periods of ACDUTRA and any outstanding ACDUTRA records should be obtained and associated with the record. 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. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. Undertake appropriate action to attempt to verify the Veteran's periods of ACDUTRA, to include the precise dates of each. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 4. After any additional records are associated with the claims file, schedule the Veteran for a VA audiological examination to determine the etiology of his claimed right ear hearing loss. The claims folder must be reviewed in conjunction with the examination. All testing deemed necessary must be conducted and results reported in detail. A supporting explanation must be provided for all opinions. Based on the review and the audiological examination, the examiner must render an opinion as to the following: (a) Whether the Veteran has a right ear hearing loss disability for VA evaluation purposes i.e. the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. (b) If the Veteran has a right ear hearing loss for VA evaluation purposes, whether it is at least as likely as not (a 50 percent or greater probability) that the current hearing loss is causally or etiologically related to his service, including any reports of in-service noise exposure. (c) The examiner must address the Veteran's report of hearing loss as a result of his 1984 in service incident in which both his ears were blocked following flight training in a pressure chamber, and a continuity of hearing loss symptoms since such event. 5. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 6. Ensure complete compliance with the directives of this remand. If a report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 7. Thereafter, readjudicate the Veteran's claims on appeal. If any benefit sought on appeal is not granted to the Veteran's satisfaction, a supplemental statement of the case should be issued, and the Veteran and his representative should be afforded the requisite opportunity to respond before the claims folder is returned to the Board for further appellate action. 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 (West 2012). ______________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs