Citation Nr: 1230115 Decision Date: 08/31/12 Archive Date: 09/05/12 DOCKET NO. 09-49 587 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for depression. 4. Entitlement to service connection for vertigo. REPRESENTATION Appellant represented by: Nevada Office of Veterans' Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1970 to September 1972. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the benefits sought on appeal. Jurisdiction of the case has been subsequently transferred to the RO in Reno, Nevada. A Travel Board hearing was held on May 14, 2012, before Kathleen K. Gallagher, a Veterans Law Judge who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c) (West 2002) and who is rendering the determination in this case. The record includes evidence regarding unemployability due to the claimed disorders. As the Board is granting service connection for bilateral hearing loss, tinnitus and depression herein, the issue of entitlement to a total disability rating based upon individual unemployability (TDIU) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to service connection for vertigo is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran has a current bilateral hearing loss disability as defined by VA regulation under 38 C.F.R. § 3.385. 2. Audiometric testing on the service separation examination shows some degree of hearing loss in the Veteran's left ear, as acknowledged by the VA examiner in the January 2012 audiology examination report. 3. The Veteran was exposed to excessive noise in the military and was exposed to noise in civilian occupations over the years after service. 4. The medical evidence shows that the Veteran's current right ear hearing loss due to acoustic trauma. 5. It is at least as likely that the Veteran's current bilateral hearing loss is the result of acoustic trauma in service as it is the result of some other cause or factor to include aging or post-service noise exposure. 6. It is at least as likely that tinnitus is proximately due to or the result of the Veteran's bilateral hearing loss as it is the result of some other cause or factor. 7. It is at least as likely that depression is proximately due to or the result of the Veteran's tinnitus as it is the result of some other cause or factor. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran's claim, bilateral hearing loss was incurred in active service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307. 3.309. 3.385 (2011). 2. Resolving reasonable doubt in favor of the Veteran's claim, tinnitus is proximately due to or the result of the Veteran's hearing loss. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.310 (2011). 3. Depression is proximately due to or the result of the Veteran's tinnitus. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.310 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). With respect to the issues decided herein, the Board is granting in full the benefits sought on appeal. Accordingly, without deciding that any error was committed with respect to the duty to notify or the duty to assist, such error was harmless and need not be further considered. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92 (1992). Law and Regulations Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain diseases, including organic diseases of the nervous system such as sensorineural hearing loss, may be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d) (2011). Under section 3.310 of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to, or aggravated by, service-connected disease or injury. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). With regard to aggravation of nonservice-connected disabilities, for claims filed on or after October 10, 2006, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The baseline and current levels of severity will be determined under the VA Schedule for Rating Disabilities, and the extent of aggravation will be determined by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify.") Analysis A. Bilateral Hearing Loss and Tinnitus For the purposes of applying the laws 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 is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran contends that his current hearing loss and tinnitus are attributable to acoustic trauma sustained while serving on active duty. First, the Board notes that the medical evidence of record shows that the Veteran suffers from bilateral hearing loss which meets the requirements of 38 C.F.R. § 3.385 for a current hearing loss disability. Specifically, a May 2008 private treatment report noted pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 35 60 90 LEFT 30 25 30 50 60 February and March 2009 private treatment reports noted pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 35 60 100 LEFT 25 25 25 45 55 A May 2009 VA examination report noted pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 40 60 85 LEFT 30 30 40 45 60 A January 2012 VA examination report noted pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 45 55 70 95 LEFT 35 40 55 65 75 Because these results clearly show auditory thresholds greater than 40 decibels, the results meet the requirement for a hearing loss "disability" for the purpose of service connection pursuant to 38 C.F.R. § 3.385. The VA examiners determined there was a mild dropping to severe sensorineural hearing loss in the right ear and mild dropping to moderately severe sensorineural hearing loss in the left ear. Therefore, the Board concludes that the Veteran has a current bilateral hearing loss disability in this case. Review of the Veteran's service treatment records reflects that audiometric testing conducted at his April 1970 pre-induction medical examination revealed some hearing loss. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 25 (-) 60 LEFT 25 25 20 (-) 35 However, at his October 1970 entrance examination, audiometric testing revealed no hearing loss. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 (-) 0 LEFT 0 0 0 (-) 5 Further, a January 1971 medical examination report noted pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -5 -10 -10 5 15 LEFT 0 -10 -10 -10 -5 In February 1972, an inservice medical examination report noted pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 5 (-) 10 LEFT 10 5 10 (-) 5 In July 1972, the Veteran was given an audiological evaluation at the time of his separation from active duty. The examination revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 10 (-) 15 LEFT 5 10 15 (-) 25 After separation from active duty service, the Veteran's reserve service treatment records contain two audiometric testing results. A February 1973 medical examination report noted pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 0 15 LEFT 5 0 0 5 5 A May 1973 medical examination report noted pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 0 5 5 LEFT 5 5 0 15 25 Regarding in-service incurrence of his hearing loss and tinnitus, during the May 2009 VA examination, the Veteran reported military noise exposure from cannon fire and gunfire in basic training and jet and helicopter flight noise, and flight line noise. No occupational noise exposure was reported; recreational noise exposure from motorcycle use was reported. He further reported that his tinnitus began during basic training following an incident where he was standing near a large cannon as it fired. Upon consideration of the above evidence, the Board finds that a grant of service connection for bilateral hearing loss is warranted. Concerning this, the Board notes that two of the three requirements for service connection for hearing loss have been met: (1) there is a current bilateral hearing loss disability as defined in section 3.385 and (2) there was an injury--military acoustic trauma-sustained in service which is noted to be consistent with the Veteran's duties and circumstances in service including serving as an air traffic control specialist and supervisor in service. With regard to the latter, the Veteran has reported in various written statements and at a May 2012 hearing before the Board, that he was exposed to extensive noise from cannon and small arms firing. During basic training, he was recruited as an instructor, which required him to be in the firing range all the time. Upon completion of training, the Veteran stated that he served as an air traffic controller and radar approach controller and was constantly exposed to noise from airplanes and helicopters on the flight line. He also had a tour of duty in Korea, during which time he was routinely exposed to ultra high frequency radio noise on a daily basis for about three to four months. His DD Form 214 indicates that his military occupational specialty (MOS) was air traffic control specialist and supervisor and that he had foreign service in Korea for three months. The Board notes that the Veteran is competent to attest to the factual matters of which he had first-hand knowledge, such as an in-service noise exposure or the onset of a decrease in hearing. See Layno, 6 Vet. App. at 469; see also Barr, 21 Vet. App. at 307 (holding that lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation); see also Jandreau, 492 F.3d at 1377 (noting, in a footnote, that sometimes a layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer). It is further noted that the Board may not determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Washington v. Nicholson, 19Vet. App. 362, 368 (2005); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Indeed, the Board has no reason to doubt the credibility of the Veteran's lay statements as they are consistent with the other evidence of record. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007) (holding that as a finder of fact, the Board, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing). Throughout the record, the Veteran has consistently reported that he experienced hearing loss and tinnitus since his military service. He related that he developed tinnitus and hearing impairment while serving in the military as a cannon operator and while working in a car manufacturing plant. He also stated that the origin of his tinnitus was because he was standing close to the cannon every time it was fired. Accordingly, the Board finds the Veteran's lay statements are credible as to his inservice noise exposure and when his hearing impairment began. Concerning the third requirement that (3) there should be medical evidence linking the Veteran's current hearing loss disability to his military acoustic trauma, the VA examiners and a private audiologist have offered contrasting opinions regarding the etiology of the Veteran's current hearing loss. The Veteran's private audiologist, Dr. H., has linked the Veteran's current right ear hearing loss to his military service. A May 2008 private otolaryngology (ENT) treatment report noted the Veteran's long history of noise exposure since he was 18 years of age while in the military and also working in various jobs, which exposed him to loud noise. The private physician noted an impression of noise-induced hearing loss with severe to profound hearing loss at 4000 Hertz in the right ear. In a March 2009 private ENT treatment report, J.H., M.D. noted that the Veteran had a bilateral neurosensory hearing loss which was worse in the right ear and that the hearing loss in the right ear appeared to be typical acoustic trauma, presumably due to exposure to noise from an explosion near the right ear while he was in the military as he had problems with hearing loss and tinnitus since that time. With regard to tinnitus, Dr. H. noted that the Veteran certainly had reason to have tinnitus from the bilateral neurosensory hearing losses. The repeat audiograms revealed a severe high tone neurosensory hearing loss in the right ear "due to acoustic trauma," and mild-to-moderate high tone neurosensory hearing loss in the left ear. While Dr. H. appears to have relied upon the Veteran's reported history, as opposed to a review of the claims file, the Board found the Veteran's lay statements regarding military noise exposure and observable symptoms to be competent and credible evidence. While the Veteran's accounts are not supported by a contemporaneous medical history, a medical opinion cannot be disregarded merely because the rationale was based on a history as provided by the Veteran. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005). The VA examiners, following a review of the claims file, provided a contrasting opinion. The May 2009 VA examiner opined that the Veteran's bilateral hearing loss and tinnitus was "less likely as not" caused by or a result of acoustic trauma. In reaching this conclusion, the examiner stated that although the pre-induction audiogram revealed an asymmetrical hearing loss (greater in the left than in the right ear), the three following hearing tests were consistent with clinically normal hearing and an updated hearing test also showed no hearing loss. The examiner stated that the hearing examinations included in the service treatment records were inconsistent and therefore inconclusive. The examiner also stated that service treatment records were negative for tinnitus. Similarly, the January 2012 VA examiner opined that the Veteran's bilateral sensorineural hearing loss was "less likely as not (less than 50/50 probability)" caused by or a result of noise exposure while on active duty. The examiner added that the preexisting hearing loss before entering military service was less likely as not aggravated beyond normal progression during military service. In support of this opinion, the examiner noted that although the Veteran had pre-existing right ear hearing loss upon service entrance, the hearing loss resolved upon all subsequent military hearing test and two post-military hearing tests; and the left ear hearing loss was not disabling per 38 C.F.R. § 3.385 upon enlistment resolved and was within normal limits at the remaining military and two post-military hearing tests. With regard to tinnitus, the January 2012 VA examiner opined that the Veteran's current tinnitus was "less likely as not" caused by or a result of military noise exposure, however failed to provide a rationale for such opinion. However, the examiners appeared primarily to rely on the lack of evidence showing permanent hearing loss or documentation of tinnitus during service. The Board finds that these opinions are inadequate as they stand in contrast with the Court's holdings in Ledford and Hensley that in certain circumstances service connection for hearing loss may be granted even when a hearing loss "disability" as defined under 38 C.F.R. § 3.385 is not demonstrated upon discharge from service. Further, the evidence of record shows some degree of hearing loss in the left ear during service and shortly after service. The Court in the case of Hensley pointed out that defective hearing is clinically indicated when pure tone thresholds are over 20 decibels, notwithstanding VA's definition of impaired hearing in 38 C.F.R. § 3.385. Hensley, 5 Vet. App. at 157. In this regard, the evidence clearly demonstrated pure tone thresholds over 20 decibels for tested values at 4000 Hertz in the left ear on his July 1972 separation examination, as well as in the May 1973 postservice examination. To that effect, the January 2012 VA examiner acknowledged that some left ear hearing loss was shown, as he specifically stated that "the left ear hearing loss" was not disabling per 38 C.F.R. § 3.385 at the remaining military and two post-military hearing tests. As such, the Veteran's July 1972 separation audiological examination reflects what appears to be the beginning of decreased hearing acuity in the left ear, and he has reported noticing problems while still on active duty that have continued to the present. The Veteran has also submitted various medical treatises in support of his claims of service connection for bilateral hearing loss and tinnitus. This medical treatise evidence suggests that noise exposure can result in delayed but dramatic loss of cochlear afferent neurons, even when exposures appear to produce entirely reversible sensitivity losses and cause no hair cell loss-even after an exposure in which the noise-induced threshold shift is completely reversible. One of the treatises submitted by the Veteran, entitled "longitudinal threshold changes in older men with audiometric notches," notes that noise-damaged ear does not 'age' at the same rate as the non-noise damaged ear. The treatise notes that the effects of noise damage continue long after the noise exposure has stopped; the mechanism for this finding is unknown, but presumably results from prior noise-induced damage to the cochlea. The Veteran claims that that is the case here as his current hearing loss is manifested clinically by a discrete elevation (notch) of the auditory thresholds in the 4000 Hertz region of the audiograms. To that effect, medical treatises note that acoustic trauma typically results in a decrease in hearing sensitivity around 4000 Hertz (a "noise notch") while in age-related hearing loss, aging affects the highest frequencies first. Regarding the etiology of the Veteran's bilateral hearing loss, the Board finds that it is not necessary to remand for another opinion in this case. 38 C.F.R. § 3.159(c)(4); cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). Rather, given that the Veteran meets the definition of "hearing loss" as set forth in 38 C.F.R. § 3.385 currently, which is due to "acoustic trauma" and because he had noise exposure as well as some hearing loss in the left ear in service, the Board finds that it is as likely as not that the Veteran's currently diagnosed bilateral hearing loss is traceable to military service. The Board therefore concludes that the evidence of record provides an adequate basis on which to grant service connection for bilateral hearing loss. Despite the lack of showing of a hearing disability in official service treatment records, given the presence of a current hearing loss disability, the exposure to noise in service, some degree of left ear defective hearing in service, and the private physician's opinion indicating that the Veteran's current right ear hearing loss is typical hearing loss due to acoustic trauma, as well as the medial treatise supporting the possible cases of delayed onset in noise-induced hearing loss, the Board concludes that there is sufficient evidence in support of the Veteran's claim for service connection for bilateral hearing loss to grant service connection now. Although the VA examiners provided negative opinions regarding a connection between the Veteran's hearing loss and service, the Board finds that, given that the examiners did not provide a reason for concluding that other "possible" causes and even unknown etiological factors more likely resulted in the hearing loss than the noise exposure in service, the evidence is at least in equipoise as to that question, and therefore, the Board will grant the benefit of the doubt to the Veteran in allowing service connection for bilateral hearing loss in this case. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Additionally, because the Board is granting service connection for hearing loss in this decision, the question arises as to whether service connection for tinnitus may also be considered on a secondary basis, i.e., as proximately due to or the result of the service-connected hearing loss disability. 38 C.F.R. § 3.310(a). In this regard, the Board notes that 'an associated hearing loss is usually present' with tinnitus. THE MERCK MANUAL, SEC. 7, CH. 82, APPROACH TO THE PATIENT WITH EAR PROBLEMS. In addition, tinnitus may occur as a symptom of nearly all ear disorders including sensorineural or noise-induced hearing loss. Id. Finally, the Board notes that 'high frequency tinnitus usually accompanies [noise-induced] hearing loss.' THE MERCK MANUAL, SEC. 7, CH. 85, INNER EAR. In regards the etiology of the Veteran's tinnitus, although the January 2012 VA examiner stated that the Veteran's current tinnitus is less likely as not due to military noise exposure, he failed to explain the basis for this conclusion. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). In other words, the examiner did not state the reason for the conclusion that, for example, noise exposure after service was more likely a cause of the hearing loss today than noise exposure in service was. The Board therefore affords little probative value to the January 2012 VA examiners' opinions. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that if VA provides a Veteran with an examination in a service connection claim, the examination must be adequate). While having to rely on its own reading of medical treatise evidence regarding a relationship between tinnitus and sensorineural hearing loss is not evidence that the Board would find as useful as the report of a qualified examiner who could discuss such a relationship in this particular case, the Board finds, as it did with the claim for service connection for the hearing loss disability, that the evidence provides a sufficient basis in this case on which to resolve reasonable doubt in favor of the Veteran. Further, it is noted that Dr. H. noted in the March 2009 treatment report that the Veteran certainly had reason to have tinnitus from the bilateral neurosensory hearing losses. Therefore, resolving all reasonable doubt in his favor, it is as likely that tinnitus is the result of the now service-connected hearing loss as it is to some other cause or factor. Accordingly, service connection for tinnitus is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 3.310; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Depression The evidence of record reflects that the Veteran suffers from severe high frequency tinnitus. During the May 2012 hearing before the Board, the Veteran testified that it is as if you are listening to the smoke alarm in his ears. Throughout the record, the Veteran has also reported that constant tinnitus has debilitating effect on his quality of life, and that it interfered with his sleep, causing depression. A March 2009 letter from the Veteran's private psychologist stated that the Veteran was diagnosed with depression and that he had reported that he carried diagnoses of vertigo, insomnia, tinnitus, and high blood pressure. The Veteran further reported that he could not sleep throughout the night, and could not work because of these problems. In an April 2009 letter from S.K., M.D. stated that the Veteran's mental health was negatively affected by various factors, to include unresolved physical health issues, especially tinnitus, which made him feel helpless, at times having low self-esteem, fluctuation in level of motivation, and feelings of sadness. After reviewing the evidence of record, the medical evidence of record clearly shows a current diagnosis of depression, or a major depressive disorder. See Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). In addition, the April 2009 letter from Dr. K. provides a positive etiology opinion for the Veteran's depression. Dr. K. opined that the Veteran's mental health was negatively affected by his tinnitus, which caused symptoms of depression. In regards to the Veteran's lay statements of record as to the severity of his tinnitus and the negative impact of his tinnitus on depression, it is noted that tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). Accordingly, resolving the benefit of the doubt in favor of the Veteran, the evidence of records shows that although service connection for depression is not warranted on a direct basis, as service connection for the Veteran's tinnitus is now established, service connection for depression is also warranted as secondary to his tinnitus. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for depression is granted. REMAND The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2011). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2011). Initially, the Board notes that although the Veteran claims that his currently diagnosed vertigo is proximately due to by his tinnitus, he has not been provided notice of all of the laws and regulations pertinent to claims brought under the theory of secondary service connection as per 38 C.F.R. § 3.310 and the Court's holding in Allen v. Brown, 8 Vet. App. 374 (1995). If, as here, the record has a procedural defect with respect to the notice required under the VCAA, this may not be cured by the Board. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Therefore, upon remand, the Veteran must be provided a proper notice of the applicable regulations. Furthermore, the medical evidence of record shows a current diagnosis of vertigo and some evidence of possible relationship between vertigo and noise exposure. During the May 2012 hearing before the Board, the Veteran testified that he experienced dizziness and need to sit down at the same time he had tinnitus. He further stated that he had been diagnosed with benign paroxysmal positional vertigo (BPPV) and that his research of medical treatise indicated that BPPV was quite often caused by acoustic trauma. To that effect, the Veteran submitted a medical treatise indicating that some acoustic trauma and vertigo/dizziness studies suggest that there may be balance disturbances resulting from noise exposure. The report further notes that asymmetric exposure to extremely intense sounds leads to a greater likelihood of vertigo. The medical evidence of record reflects that the Veteran's vestibular system dysfunction was found following a private May 2008 electromyography (EMG). In the May 2008 ENT treatment report, the Veteran complained of some dizziness, which as normally disequilibrium. However, the private physician noted that the vertigo and disequilibrium did not seem to be associated with any tinnitus. While the record includes somewhat conflicting evidence regarding the etiology of vertigo, the Board notes that the Veteran has not been afforded a VA examination in connection with this claim. As such, the Board finds that a VA examination should be conducted wherein the examiner reviews the Veteran's records and his reported medical history, examines the Veteran, and provides a medical opinion as to whether the Veteran's current vertigo is related to his military service or service-connected tinnitus, in light of the contentions raised by the Veteran and medical treatise submitted in support of his claim. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should send the Veteran a notice letter which provides an explanation as to the elements necessary to substantiate a claim under the theory of secondary service connection as per 38 C.F.R. § 3.310 and the Court's decision in Allen v. Brown, 8 Vet. App. 374 (1995). 2. The RO/AMC must afford the Veteran an appropriate VA examination to determine the nature and etiology of current vertigo. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the report that the claims file and Virtual VA records have been reviewed. After completion of above, the VA examiner should address the following: a. Based on a review of the claims file, the examiner should opine as to whether it is at least as likely as not that the Veteran's current vertigo is causally or etiologically related to military service, to include extensive noise exposure, which is conceded in this case. b. If the examiner determines that vertigo is not related to active military service, provide an opinion as to whether it is at least as likely as not that the Veteran's current vertigo is proximately due to or aggravated by his service-connected tinnitus. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2011), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review 4. After the above development has been completed, the RO/AMC should readjudicate the issue of entitlement to service connection for vertigo. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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 Supp. 2011). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs