Citation Nr: 1749034	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  17-17 086	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1. Entitlement to service connection for dementia due to asbestos exposure.

2. Entitlement to service connection for tinnitus.

3. Entitlement to service connection for bilateral hearing loss.

4. Entitlement to service connection for hypertensive vascular disease.

5. Entitlement to service connection for intervertebral disc syndrome.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

C. Ryan, Associate Counsel


INTRODUCTION

The Veteran served on active duty from March 1955 to March 1959.

This appeal arose to the Board of Veterans' Affairs (Board) from a July 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issues of entitlement to service connection for hypertension, dementia, bilateral hearing loss, and degenerative disc disease of the lumbar spine are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

Resolving all doubt in the Veteran's favor, the currently demonstrated tinnitus was caused by in-service exposure to excessive and harmful noise in connection with the Veteran's duties.


CONCLUSION OF LAW

The criteria for the establishment of service connection for tinnitus are met. 38 U.S.C.A. §§ 1101, 1110, 1134(a), 5107; 38 C.F.R. § 3.303.


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran contends that he is entitled to service connection for tinnitus. For the following reasons, the Board finds service connection for tinnitus is warranted.

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009).

In addition, for Veterans who have served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, including organic diseases of the nervous system, if the disability is manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected.  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, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)).

The Court has found a lay person competent to identify tinnitus, as it is a disorder that can be identified based on lay observation alone.  See Charles v. Principi,  
16 Vet. App. 370 (2002).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

After reviewing the evidence of record, the Board finds that the Veteran's reports of ringing in the ears since being exposed to loud noises in service is consistent with the circumstances of his service. The Veteran's credible assertions of ringing in his ears establish chronicity of the condition which was later diagnosed as tinnitus. As such, a nexus to service is shown.

The Board is aware that a VA audiologist has provided a negative opinion in July 2016. However, the Board finds that this merely puts the evidence in relative equipoise, as the Veteran asserted, through his application for service connection, that he suffered from tinnitus throughout the appeal period. Thus, the benefit-of-the doubt doctrine is for application.

The Board finds that, as the Veteran has credibly reported experiencing ringing in his ears since service, service connection for tinnitus is warranted.  See 38 C.F.R. §§ 3.303(b), 3.309(a); see also Charles v. Principi, 16 Vet. App. 370, 374 (2002).


ORDER

Service connection for tinnitus is granted.


REMAND

The Veteran contends that he is entitled to service connection for dementia, bilateral hearing loss, hypertension, and degenerative disc disease of the lumbar spine. For the forthcoming reasons, the Board finds a remand necessary before adjudication.

At the outset, the Board notes that the Veteran's service treatment records are missing, due to a 1973 fire. When service records are missing through no fault of the veteran, VA has a heightened obligation to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing his claim, and to explain its decision. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). No presumption, however, either in favor of the veteran or against VA arises when there are lost or missing service records.  See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005).

First, the RO should contact the Veteran to ensure the Veteran is given every opportunity to submit all favorable medical evidence and records to the examiners for review. The Veteran is also asked to submit any statements concerning his conditions and their connection to his time in service.

Second, the claims file-to include any evidence newly submitted by the Veteran-should be made available to the appropriate examiners to determine whether it is more likely than not that the Veteran's conditions stem from his time in service, to include exposure to asbestos. Given that the Veteran's service treatment records were destroyed due to fire, the examiners are reminded that the Board cannot treat as adequate a medical examination that relies on the absence of an injury in the service treatment records as dispositive. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (holding that the lack of contemporaneous medical records does not, in and of itself, render lay testimony not credible).

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 Veteran and ask him to submit all medical records, treatments, and evidence tending to support his claims for service connection.

2. After receiving a response from the Veteran, the claims file should be made available to an examiner to determine whether it is more likely than not that the Veteran's dementia, bilateral hearing loss, hypertension, and degenerative disc disease of the lumbar spine are due to service.

***The examiners are asked to remember that the VA has conceded the Veteran's exposure to asbestos in service, as well as noise exposure.

***The examiners are reminded that the Veteran's STRs were destroyed in fire and, accordingly, the lack of events recorded in the STRs cannot be held against the Veteran.

The appellant 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.A. §§ 5109B, 7112 (West 2014).




______________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs

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