Citation Nr: 1237263 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 09-47 088 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, to include depression. 2. Entitlement to service connection for a bilateral hearing loss disability. 3. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1974 to November 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. This appeal was previously before the Board in November 2011, at which time it was remanded in order to request additional outstanding records from the Veteran and to afford him psychiatric and audiological examinations. In November 2011 the Veteran was notified that he could identify any additional outstanding records; however, no additional records were identified. The Veteran was afforded a VA audiological examination in November 2011 and a VA psychiatric examination in December 2011. Given the foregoing, the Board finds that VA has substantially complied with the Board's prior remand with regard to the issue of entitlement to service connection for a psychiatric disorder. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with Board's remand instructions). For the reasons discussed below, the Board finds that another remand of the issues of entitlement to service connection for bilateral hearing loss and tinnitus is necessary. The issues of entitlement to service connection for bilateral hearing loss and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT The Veteran is shown to have a psychiatric disability attributable to his service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, depression, have been met. 38 U.S.C.A. §§ 1110, 1111, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.304 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2011). To the extent there may be any deficiency of notice or assistance, there is no prejudice to the appellant in proceeding with the issue on appeal given the favorable nature of the Board's decision with regard to the pending claim. Applicable Laws and Regulations The Veteran has not contended, and the records do not suggest that his injuries were incurred in combat, such that the provisions of 38 U.S.C.A. § 1154(b) are not for application. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). With regard to entitlement to service connection on a direct incurrence basis, 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); 38 C.F.R. § 3.303(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; 38 C.F.R. § 3.303(b). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.303(a); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Lay evidence can be competent and sufficient to establish a diagnosis when (1) a 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, at 1377. "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); 38 U.S.C.A. §§ 1111, 1137 (West 2002). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. Applicable Facts The Veteran contends that he self referred for medical help while in service due to depression and hopelessness caused by his divorce and custody battle. He reported that it was recommended he complete his divorce, which upset him, such that after service he self-medicated with alcohol. He believed his condition was chronic. Service treatment records show that on entrance examination in November 1974 the Veteran did not report experiencing depression or excessive worry, or nervous trouble of any sort. The examiner indicated that the Veteran was psychiatrically normal. Treatment notes show that the Veteran sought care for physical injuries caused by such acts as hitting a wall in December 1976, or kicking his wife in July 1980. Service treatment records show that the Veteran received inpatient psychiatric care from August 29, 1979, to September 10, 1979, from which he was discharged with a diagnosis of transient situational disturbances, improved. The narrative summary indicates that the Veteran sought psychiatric treatment in relation to problems he was experiencing in his second marriage, to include feeling depressed and having developed a bad attitude. When the Veteran insisted on seeing a psychiatrist, a doctor read a consultation over the phone, which referred to a different Marine; however, such consultation was given to the Veteran, and from this inpatient treatment was arranged without the Veteran having seen a physician. The report indicated that the Veteran explained he experienced problems in his second marriage, and had responsibility for two children. Marital and financial conflict were present, and the Veteran began drinking more heavily than usual, and on one occasion left his duty station for a 36 hour period. Other than anger and situational depression, the Veteran did not present psychiatric symptomatology. Mental status examination showed the Veteran was fully-oriented, with no history of thought disorder, and no significant affective disturbance. Memory was intact, intelligence was average, and there was no sign or symptom of any form of psychosis. Diagnosis was of adjustment reaction of adult life, with marital discord, and having been found to suffer from no mental defect the Veteran was discharged to return to full duty. It was indicated that the admission had been entirely inappropriate and resulted from a series of errors on the part of referring personnel. It was not believed that the Veteran suffered from any diagnosable psychiatric disease other than that stated above, nor did he have a significant personality disorder. Separation examination of October 1980 did not indicate any psychiatric abnormality, and the Veteran did not report experiencing depression or excessive worry or nervous trouble of any sort. VA treatment records since service show that the Veteran's diagnoses include depressed mood. In April 2008 the Veteran also reported experiencing anxiousness, and alluded to difficulty with anger. He was placed on a trial of Fluoxetine. Social security disability records include a May 2008 evaluation by Kurt Brewster, M.D., who in part evaluated the Veteran for his report of depression. The Veteran reported that he experienced intermittent depression since 1993, described as feeling that he wanted to give up, and not wanting to go out or eat, with such episodes lasting for six months or longer. He reported that he had never been treated for these problems. Dr. Brewster indicated that depression was outside of his expertise, but that because the Veteran apparently satisfied the DSM criteria for major depression (depressed mood for 6 months or greater, anhedonia, other symptoms), he would recommend a psychological evaluation, such that a qualified mental health examiner could indicate the degree that this caused impairment. In June 2008, the Veteran reported that he never sought psychiatric treatment because of limited earnings and lack of health insurance. In May 2011 the Veteran was afforded a VA psychiatric examination, wherein the claims folder was reviewed and a clinical interview and mental status examination were conducted. The Veteran reported the he grew up in a dysfunctional family, where he grew up clashing with both his father and mother. He reported that he was often angry and defiant towards his parents, and often in trouble with the law. He indicated that he did not get along with his brothers, although he did get along with his sister. He reported that his parents divorced when he was a teenager, and that he began to have increased behavioral problems in and out of school. He indicated that he argued a lot with family, and following the divorce was pitted against or between his parents. He indicated that he lived with his father, and his mother was in and out of his life after the divorce. He reported no sexual or physical abuse while growing up. He reported that his mother who was in and out of counseling likely suffered from a mental illness. The Veteran reported having various jobs since age 18, until entering the military at age 27. He indicated that his grades were good, until soon after his parents' divorce, and that in junior high he stopped attending school and received multiple incompletes such that he was unable to graduate. He indicated that he was sentenced to 8 months at a Youth Authority camp for stealing automobile parts. In all he reported facing charges of Grand Theft Auto, burglary and trespassing, and serving time in jail prior to entering the Youth Authority program. He completed his general educational development prior to entering the military. Other than being fired for an involvement in a fist fight with another employee in 1971, the Veteran denied aggressiveness during his occupational history. Socially, the Veteran reported that he married at age 21, and had a child when he was 22, and divorced eight years after marrying. He denied violence in his first marriage, or prior to his military service, with the exception of the fight with a co-worker. The Veteran indicated that in 1966 he regularly used acid, and that he abused amphetamines in the early 1970s, and occasionally smoked marijuana prior to service. He indicated that he began drinking alcohol at age 14, and by five years prior to entering the service he drank alcohol almost daily. He indicated that his tolerance increased. The Veteran denied experiencing mental health or substance abuse treatment prior to service. The Veteran reported that following a divorce in 1978, he remarried in 1979; however, verbal arguments continued in the second marriage, and there were physical altercations where he reported that his then wife was aggressively violent and would draw knives on him, and that on one such occasion he kicked her and broke her tailbone. He reported that they divorced in 1983, and since then he had been in a 20 year intermittent relationship with his current girlfriend. He denied any assaultiveness or violence since service. He reported that during service he drank approximately 2 to 6 beers daily, and then quit for 3 years, before returning to the same pattern. He indicated that his drinking caused relational and legal problems during service, and that he had multiple public intoxication charges. The Veteran indicated that in 1994 he served jail time for driving under the influence (DUI), and had 4 DUI's total, with the most recent causing him to enter substance abuse treatment in 2007 with Alcohol and Drug Abuse Prevention and Treatment. He denied other substance abuse during service; however, he reported that since service he smoked marijuana up to two years earlier. He had obtained a medical marijuana card and smoked daily to cope with stress. He reported that he had not drunk alcohol for over a year. The examiner indicated that the Veteran met criteria for alcohol dependence in full sustained remission. The Veteran reported that during service, in 1979, he had been mistakenly admitted to a psychiatric unit when he was looking for basic counseling to help him cope with his marital stress. Since service, the Veteran reported that he worked six months at the post office before he was fired for not including a prior DUI on his application. He indicated that since then he had worked on a vending route, as a carpenter, and mechanic, and that since applying for disability in 2007 he was unemployed. He reported that he received treatment for his depression. On examination, the Veteran arrived in slightly grungy clothing, stating that he did not wish to dress better than he usually did. There were no noticeable body odors, and he was interactive and cheerful throughout the examination. No behavioral abnormalities were identified. The Veteran's speech was clear, with a normal rate and tone. Content of speech was appropriate to questioning and of a logical nature. There was no evidence of hallucinations or delusions. Thought processes were clear, coherent, and without evidence of loose associations, tangential thinking, flight of ideas or distractibility. The Veteran's mood was cheerful; however, he reported experiencing a depressed mood for 2 hours or through a particular day, occurring twice monthly. The Veteran demonstrated anxiety; however, it did not cause much impairment during the examination. He reported that he was generally anxious much of the time, leading to increased irritability when he struggled to be patient. He recalled experiencing anxiety since prior to his military service. There was no evidence of panic attacks or physiological symptoms of anxiety, mania or hypo-mania, and he denied experiencing nearly all current symptoms of depression. The Veteran was oriented to person, time and place. There were some remote memory limitations evidenced by confusion in timeline information; however, with some thought he was able to sort out the confusion. The Veteran was of at least average mental intelligence, and had no deficits in concentration or attention. He had very poor insight; however, since quitting alcohol one year earlier, and maintaining healthy use of his anti-depressant medication, his insight appeared much stronger. There was notable limitation of insight in regards to his cannabis use, as he did not see it as having similarities to his previous alcohol use. The Veteran's judgment was mostly sound, with the exception of his cannabis use patterns. No obsessive or ritualistic behavior was reported. The Veteran denied previous suicide attempts, ideations, attempts or plans. Although the Veteran reported that he woke at 4 am and returned to sleep at 6 am, the Veteran reported no significant disturbances of sleep. The Veteran scored 7 on a depression scale, and 5 on an anxiety scale. He did not have any decrements in activities of daily living, and the examiner considered him competent to manage VA benefit payments in his best interests. Diagnosis was of major depressive disorder, recurrent, in full remission, alcohol dependence, in sustained full remission, and cannabis abuse. The examiner opined that the Veteran's depressive disorder was in full remission, which was maintained related to his use of Citalpem, which he began taking two year earlier and from which he reported a significant difference in irritability and anxiety. The examiner considered the Veteran's alcohol dependence in full sustained remission because the Veteran had not drunk in over one year. Substance abuse was considered to have developed secondary to his major depressive disorder, as it fueled his need to escape and avoid emotional conflict and stress. The examiner opined that the Veteran's major depressive disorder had begun sometime prior to service, related to various issues involving his parents' divorce when he was in childhood, and marital discord that began prior to service. The examiner opined that the Veteran's military service did not directly impact his symptoms of major depressive disorder, and that although significant periods of depression occurred during his military service, it was not a direct result of his military service. As such, the examiner indicated that the Veteran's major depressive disorder was not a direct result of service, or caused by or a result of service. Because the alcohol dependence developed prior to military service, and related to ongoing marital discord and secondary to major depressive disorder, it was also not considered to have been caused by or a result of service. The examiner opined that the Veteran used cannabis to cope with symptoms of stress and pain similar to his use of alcohol in the past. There was a risk of this substance developing into dependence, and the examiner opined that the Veteran met the criteria for cannabis abuse, such that it was advisable the Veteran seek counseling. In December 2011 the Veteran was afforded another VA psychiatric examination, wherein the claims folder was reviewed, and which identified his diagnoses of major depressive disorder, recurrent, in full remission, alcohol dependency, in full sustained remission, and cannabis abuse. The Veteran reported that he did not know why he was at the examination, and that he thought he was doing very well, and did not have any mental disorder. The examiner indicated that it was apparent that the Veteran's antidepressant medication worked well. The Veteran was at that time asymptomatic for both major depressive disorder and alcohol dependency. Occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress or; symptoms controlled by medication best summarized the Veteran's impairment with regards to mental diagnoses. By history, the Veteran was the second of four children, born and raised in Stockton, California. His parents divorced when he was 14 or 15 years old, and he reported that his mother abused alcohol, was chronically depressed, and emotionally abusive. He denied sexual abuse in his family of origin. Following the divorce, the Veteran and his siblings lived with his father, although he continued a relationship with his mother. The Veteran denied violent behavior. He reported that he had many friends prior to service, and continued to have friends in service. He reported that he had been married three times, and lived with one woman for a few years. His first marriage, from 1969 to 1978, with 2 children, was very tumultuous, and ended due to his wife's infidelity, causing a significant depressive reaction in the Veteran. His second marriage, from 1979 to 1983, reportedly ended due to his wife's abusive behavior towards the Veteran's daughter. He lived with a woman from 1984 to 2006, and was most recently married from 2003 to 2006; however, he reported that this marriage ended due to poor communication. The Veteran reported having no contact with his children and no friends. He reported that he stayed at home as often as possible. The Veteran reported that he obtained "A's" and "B's" in high school, but did not graduate due to multiple legal problems. Following high school he worked at various jobs prior to service, where he reported that he served as a Missile Radar Technician, was never deployed, and did well. He denied formal disciplinary action while enlisted. Following service, he worked many jobs, usually lasting for less than a year. He reported that he had never been fired, but rather left work for increased pay or out of boredom. The Veteran reported that he last worked as a carpenter, but had been unemployed since November 2007. The Veteran described himself as an extremely angry youth, which the examiner commented was not an uncommon expression of depression. The Veteran denied mental health treatment. He described multiple arrests as a youth, all crimes against property, resulting in multiple stays in juvenile hall, with a total time approximating 9 months. He reportedly was arrested at 18 years old for trespass and sentenced to 2 years, but due to an incident in prison he was sent to juvenile court, and served approximately a year with the California Youth Authority. While in service, he denied formal disciplinary action, but was arrested for a DUI by civilian authorities. Since separation from service, he had been arrested for DUIs on 3 occasions, most recently in 2003. The Veteran reported heavy social drinking as a youth, with increased alcohol use in service, with significant increase during his first divorce. He reported that he had not had a drink in approximately two years. He reported that he used marijuana prior to service, and also methamphetamines for a short period. Following separation from service he had used marijuana daily, and obtained a Medical Marijuana Card in 2008 for pain. The Veteran denied symptoms related directly to major depressive disorder, and the examiner considered this likely a function of his medication. The examiner opined that there was clear and unmistakable evidence that a depressive disorder existed prior to military service. Based on the Veteran's reported experiences, his family of origin was emotionally abusive and disruptive. The Veteran provided greater detail in this regard reflected on his earlier examination. The Veteran stated that his response to his family dysfunction was use of alcohol, illegal behavior, and significant anger. The examiner explained that depressive disorders in children (under the age of 18 and perhaps older) were most often expressed as anger, and opined that the Veteran had a depressive disorder prior to enlistment that stemmed from childhood. By the Veteran's report, his first marriage from 1969 to 1978 was very dysfunctional and caused emotional problems. The examiner indicated that it would be reasonable to assume that the marriage, which began prior to service, aggravated an existing depressive disorder. The marriage and divorce were the only events identified by the Veteran as related to his depression. The examiner indicated that the Veteran's depression worsened during service; however, this increase was a function of his marriage and subsequent divorce, and there was no evidence to suggest that the Veteran's military service was a factor in the progression of his depression while enlisted. The examiner indicated that absent any other evidence, it was his opinion that the Veteran's depression would have worsened from his marriage to the same degree whether he had been enlisted or not. The only "clear and unmistakable" evidence available was the Veteran's reaction to his marital dysfunction and subsequent divorce was not significantly different in degree from his reaction to life events prior to his enlistment, which also impacted his depression. Additionally, although the Veteran's depression continued post-service, it did not continue at the aggravated level apparent immediately post-divorce, but instead followed a trajectory of gradual intensity as would be expected of a depressive condition present since childhood. The examiner discussed that the only mental health issues documented in the Veteran's claims folder were related to admission to a psychiatric hospital while in service, with a diagnosis of adjustment reaction of adult life with marital discord. This admission was noted as being inappropriate for the symptoms and diagnoses at the time. The examiner could find no other evidence to tie current symptoms and diagnosis with those which first appeared during service. Instead, the examiner opined that the Veteran's current symptoms and diagnoses were a direct result of his long-standing depression present since childhood. Legal Analysis The Board observes that in order to rebut the presumption of soundness, there must be clear and unmistakable evidence that the claimed disease or injury preexisted entrance into service, and clear and unmistakable evidence that either the disability resulting from the disease or injury did not increase in severity during service, or that any increase in disability resulting from the disease or injury during service was due to the natural progression of the disease or injury. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2011). The Board acknowledges that the Veteran was not formally noted to have a depressive disorder in his November 1974 medical assessment such that the presumption of soundness attaches. The December 2011 VA examiner opined that the Veteran's disability preexisted service based on the Veteran's reports of anger, considered a manifestation of childhood depression. Additionally, the examiner opined that the Veteran's psychiatric disability was not permanently aggravated by his service. In reaching that opinion, the examiner observed that following service the Veteran's psychiatric disability followed a course of gradual progression. The examiner, however, acknowledged that the Veteran's depression worsened in service. As such, the Board finds the presumption of soundness is not rebutted. The Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See 38 U.S.C.A. § 1153(a) (West 2002 & Supp 2011); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). A layman is competent to report what he or she experiences through one of the senses. See Layno v. Brown, 6 Vet. App 465, 470 (1994). In this case, the Veteran is competent and credible to report symptoms involving his depression since service because this requires only personal knowledge as it comes to him through his senses. The Veteran is competent to testify as to his observations. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); Layno, 6 Vet. App. at 470. In sum, the Veteran described experiencing difficulties with depression, described as feelings of hopelessness since service. Service treatment records show that the Veteran sought treatment for feeling depressed, and was indeed treated for anger and situational depression. Subsequent to service, VA treatment notes showed that the Veteran was diagnosed as having a depressed mood. In pertinent part, the VA psychological examiner diagnosed the Veteran as having major depressive disorder, recurrent, in full remission. The examiner elicited a history from the Veteran that included alcohol and drug dependence to cope with symptoms since service, and working at various jobs typically less than a year at a time since service. The December 2011 examiner indicated that the Veteran's depression worsened during service, and followed a trajectory of gradual intensity. The examiner attributed the worsening to the Veteran's marriage/divorce as opposed to his military service; however, the timing of the increase in depression was during service. It does not matter that the cause of the worsening was something other than his military service. Although the examiner argued that the Veteran's symptoms were a direct result of long-standing depression present since childhood, the Board has found that the presumptions of soundness attaches and is not rebutted. As such, the Board considers the applicable portion of the examiner's statement, that the symptoms were a direct result of long-standing depression, along with the Veteran's reported history of symptomatology, to include depression, anxiousness and anger since service to be of probative value. Here, the most probative evidence supports service connection for an acquired psychiatric disability, to include depression. In reaching this conclusion, the benefit-of-the-doubt doctrine has been appropriately applied. ORDER Entitlement to service connection for a psychiatric disorder, to include depression is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND Hearing Loss and Tinnitus The Veteran indicated that he served as an Aviation Fire Control Technician, which required extensive flight line duty especially on F4-M aircraft, and therefore noise exposure. He reported that his civilian occupations did not expose him to comparable levels of noise as he experienced on the flight line. Service treatment records show that on entrance examination in November 1974 the Veteran did not report experiencing hearing loss, or any ear, nose or throat trouble and the Veteran's ears and drums were normal. Audiological testing revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 25 15 15 15 LEFT 25 15 5 5 5 Audiological testing revealed puretone thresholds from July 1976, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 0 0 0 LEFT 10 0 0 10 10 Audiological testing revealed puretone thresholds from December 1978, in decibels as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 25 25 40 30 LEFT 10 10 15 15 35 A March 1980 treatment note showed that the Veteran's ears and tympanic membranes were clear. Separation examination of October 1980 did not indicate any ear abnormality, and the Veteran did not report experiencing hearing loss, or ear nose or throat trouble. Audiological testing revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 10 10 10 LEFT 5 5 5 5 35 May 2008 evaluation by Dr. Brewster included hearing loss and tinnitus in the Veteran's past medical history. In May 2011 the Veteran was afforded a VA audiological examination wherein his claims folder was reviewed. The examiner indicated that the Veteran's November 1974 audiogram showed hearing sensitivity within normal limits, and at separation in October 1980 hearing sensitivity was also within normal limits in both ears, with the exception of a mild loss at 4000 Hertz (Hz) for the left ear. The Veteran reported experiencing hearing loss that was worse in the right ear, and constant right ear tinnitus. The Veteran indicated that he experienced difficulty hearing his girlfriend. The Veteran reported that he had been in service for six years, and was a radar technician on F-4 aircraft, and that it had been noisy and ear protection was not always used. As a civilian, he worked at the Post Office doing maintenance, then in sheet metal for six years without ear protection. He was a carpenter intermittently for a long time, during which time he reported using ear protection. He was a courier driver for three years, and a caregiver for 15 years. The Veteran denied being a hunter or going target shooting. He reported that he was aware of his hearing loss when he was in his late twenties or early thirties, at which time tinnitus was also present. The Veteran reported that he experienced ear infections or earaches as an adult, but not medical attention. He denied a history of vertigo or family history of hearing loss. The Veteran had never worn hearing aids. Audiological testing revealed puretone thresholds, in decibels as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 55 55 50 55 50 LEFT 20 25 15 50 65 Speech recognition scores were of 78 percent in the right ear, and 96 percent in the left ear. There was moderate to severe sensorineural hearing loss from 250 Hz through 8000 Hz in the right ear, and mild sloping to moderately severe sensorineural hearing loss from 1000 Hz to 8000 Hz in the left ear. There was excellent speech recognition in the left ear. The Veteran reported the greater hearing loss in the right ear had been longstanding. The examiner opined that the Veteran's hearing loss and tinnitus were not caused by noise exposure in service. The examiner reasoned that service records did not support the Veteran's claim. The hearing test at separation in 1980 showed hearing was within normal limits bilaterally, except for a mild loss in the left ear at 4000 Hz. The examiner indicated that the Veteran had a significant hearing loss in the right ear that was not present when he left service in 1980, and the configuration of the hearing loss was not consistent with a history of noise exposure. Although the Veteran had a mild loss at one frequency in the left ear when he left service, the examiner indicated that a decrease in hearing at only one frequency did not meet the definition of a significant threshold shift. The evidence indicated that the Veteran's hearing loss, especially in the right ear, occurred after leaving the service and was not caused by noise exposure in service. Because the Veteran's tinnitus was in the right ear only, and service records showed that he had normal hearing in that ear when he left service in 1980 the tinnitus was considered most likely secondary to hearing loss that occurred after leaving service. The Veteran's hearing loss was considered to have an effect on occupational functioning and daily activities. The Veteran had a significant hearing loss in the right ear. He had trouble localizing sound because of the fact that he heard things louder in the left ear. His worst listening situations would be with a speaker on his right and background noise on his left. In November 2011 the Veteran was afforded a VA audiological examination for hearing loss and tinnitus, wherein the claims folder was reviewed. Audiological testing revealed puretone thresholds, in decibels as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 60 55 50 55 65 LEFT 20 20 20 55 70 Speech discrimination testing according to Maryland CNC word lists was 78 percent in the right ear, and 96 percent in the left ear. Acoustic immittance testing in the right ear was abnormal. Diagnosis was of mixed hearing loss in the right ear, and sensorineural hearing loss in the frequency range of 500 to 4000 Hz in the left ear. The examiner indicated that the Veteran's hearing loss was not at least as likely as not caused by or a result of an event in service. The examiner indicated that there was no change in the opinion expressed in May 2011. The examiner indicated that there was evidence of a preexisting hearing loss in the right ear only when the Veteran entered service. The Veteran's entrance examination from November 1974 showed a mild loss in the low frequencies in that ear. The examiner indicated that there was clear and unmistakable evidence that the Veteran's preexisting hearing loss in the right ear did not increase in severity in service. In fact, the examiner indicated that the Veteran's October 1980 examination showed improved hearing in that ear. The decrease in hearing at entrance could have resulted from excess cerumen or a temporary middle ear problem. According to the examiner, based on the Veteran's service records, his hearing loss and tinnitus occurred after separation from service. The Veteran now displayed a significant hearing loss in both ears, especially in the right ear that was not present when he left service. Because the Veteran reported tinnitus in the right ear only and hearing loss in particular in the right ear occurred after service, the tinnitus was likely secondary to that hearing loss. The configuration of the hearing loss in the left ear was consistent with noise exposure. The configuration of the hearing loss in the right ear was not consistent with noise exposure as it was a "flat" loss and did not have the characteristic "notch" centered around 4000 Hz. The examiner indicated that hearing loss had existed prior to service, and was not aggravated beyond the normal progression in military service for either the right or left ear. The examiner reasoned that separation examination in 1980 showed no progression of the mild frequency loss in the right ear. The Veteran reported that his hearing loss affected his daily life in that work was misdirected, he could not hear at a distance, and got into arguments based on misunderstandings. Regarding tinnitus, the Veteran reported that he first noticed it approximately fifteen to twenty years earlier, and that he might have had it prior to then, because he was fairly certain that he had it in service. The Veteran reported that his tinnitus impacted his daily life in that it distracted him, caused him to think he heard things, and caused difficulty sleeping at night when it was quiet. The examiner opined that the tinnitus was less likely than not caused by or a result of military noise exposure. The examiner reasoned that the Veteran reported the tinnitus was in both ears at this examination, but earlier that year, in a May examination he had reported that it was only in his right ear. The examiner considered the Veteran to have been vague regarding the onset and circumstances of the tinnitus. The examiner opined that the Veteran's tinnitus was secondary to his hearing loss that occurred after leaving service. The current audiological opinions of record are not sufficient for a Board decision. Although the November 2011 VA examiner indicated that right ear hearing loss was not noise related, and left ear hearing loss was noise related, he then concluded that hearing loss existed prior to service and was not aggravated. His conclusion is not supported by his reasoning, in particular as regards left ear hearing loss. A VA opinion should be obtained, and given the facts of this case, the examiner should address the bilateral hearing loss separately as left ear and right ear hearing loss, if necessary. See 38 C.F.R. § 3.159. The current opinions regarding tinnitus are intertwined with the rationale regarding hearing loss, which the Board finds inadequate. As such, the issue of entitlement to service connection for tinnitus should also be remanded for another VA opinion. Id. In conclusion, an examiner should be requested to discuss the nature and etiology of the Veteran's hearing loss and tinnitus, given the Veteran's noise exposure in service. Id. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded an additional VA audiological examination from an examiner other than the one who conducted the May 2011 and November 2011 examinations. The claims file must be made available to and reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made. The examination must include appropriate audiometric and speech discrimination testing of both ears. The examiner should provide a discussion of the Veteran's audiological history and prior audiological evaluations, describing the disability and explaining disparities in testing results. The examiner should determine whether it is at least as likely as not that any current bilateral hearing loss is related to service, to include in-service noise exposure. The examiner is requested to address the left and right ears separately, as necessary. A rationale should be provided. The examiner should also provide an opinion as to whether it is at least as likely as not that the Veteran's current tinnitus is related to service, to include in-service noise exposure. A rationale should be provided. 2. After conducting any additional development deemed necessary, readjudicate the claims, considering all the evidence of record. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate period of time for response. The case should then be returned to the Board, if in order. 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 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). ______________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs