Citation Nr: 1301347 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 09-48 629 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for an acquired psychiatric disorder as secondary to tinnitus. 4. Entitlement to service connection for a right knee disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran had active military service from April 1969 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that, although an appellant's claim identified a specific diagnosis without more, it cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any disability that may reasonably be encompassed by several factors-including the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or that VA obtains in support of the claim. The Court reasoned that the appellant did not file a claim to receive benefits only for a particular diagnosis, but for the affliction (symptoms) his condition, however described, causes him. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, although the RO classified the Veteran's claim narrowly as one for service connection for "stress, anxiety, and loss of concentration" secondary to tinnitus, the Board notes that the Veteran has complained of multiple symptoms and has not been assigned a clear diagnosis for his claimed acquired psychiatric disorder. The Board thus finds that, pursuant to Clemons, supra, the Veteran's service connection claim is more accurately classified as one for any acquired psychiatric disorder. See Clemons, 23 Vet. App. 1 (2009). The Veteran testified before the undersigned Veterans Law Judge at a hearing at the RO in May 2012. A transcript of the hearing has been associated with the Veteran's claims file. The decision below addresses the Veteran's claims of service connection for tinnitus and a right knee disorder. Consideration of the remaining claims on appeal is deferred pending completion of the development sought in the remand that follows the decision. FINDINGS OF FACT 1. The Veteran likely has tinnitus that is attributable to his period of active military service. 2. At his May 2012 hearing before the undersigned Veterans Law Judge, and prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal for entitlement to service connection for a right knee disorder. CONCLUSIONS OF LAW 1. The Veteran has tinnitus that is the result of disease or injury incurred during active military service. 38 U.S.C.A. § 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 2. The criteria for withdrawal of the appeal for entitlement to service connection for a right knee disorder by the Veteran have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The VCAA describes VA's 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 & 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required, in general, to notify the claimant and her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Regarding the issue of entitlement to service connection for tinnitus, the Board has considered the legislation regarding VA's duty to notify and to assist claimants but finds that, given the favorable action taken herein with regard to that issue, no further discussion of these VCAA requirements is required. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). II. Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Generally, service connection requires: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). Further, it is not enough that an injury or disease occurred in service; 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). Here, the Veteran contends that his current tinnitus is attributable to noise exposure he experienced while serving on active duty. First, the Board notes that the Veteran has been diagnosed with tinnitus since at least 1998 and has consistently reported that the disorder began and service and has continued since that time. The Veteran served on active duty from April 1969 to July 1970. His DD Form 214 indicates that his military occupational specialty was light weapons infantryman and that he was trained as a rifle expert while on active duty. Relevant evidence consists of the Veteran's service treatment records and records of post-service treatment with VA providers as well as a private audiological evaluation conducted in June 2012. Review of the Veteran's service treatment records reflects that reports of medical examinations conducted in June 1968 and July 1970 do not indicate any complaints of tinnitus. At the examinations, the Veteran was found to have normal hearing and normal ears. His service treatment records are similarly silent as to any complaints of or treatment for tinnitus. Post-service VA treatment records document that the Veteran was seen for complaints of tinnitus as early as 1998; he recounted at that time that the tinnitus began following an explosion in service while he was in training that caused temporary deafness. The Veteran has been seen by VA caregivers on multiple occasions for complaints of tinnitus and has consistently reported that the disorder began following an in-service explosion. Following the filing of the instant claim, the Veteran underwent private audiological evaluation in June 2012. At that time, he reported having been exposed to acoustic trauma from frequent weapons fire while he was in service, as well as a large explosion. The examiner noted that the Veteran had not used hearing protection during service and diagnosed him with tinnitus. In opining that the tinnitus is likely linked to his in-service noise exposure, the examiner noted the Veteran's in-service exposure to weapons fire and an "explosive event." In particular, the examiner noted that the Veteran's in-service exposure to acoustic trauma was the "most significant factor" in his later development of audiological disorders, particularly given that he had not had ear protection in service or any significant post-service noise exposure. Upon consideration of the above evidence, the Board finds that a grant of service connection for tinnitus is warranted. The evidence shows a current diagnosis of tinnitus that has been linked to military service. Specifically, the Veteran's private audiological examiner opined that the Veteran's tinnitus is likely related to acoustic trauma suffered in service. This opinion is not contradicted by any other medical evidence of record. With regard to the Veteran's complaints of in-service noise exposure, the Board finds credible his account of noise exposure in service as it is consistent with his military occupational specialty of light weapons infantryman, as well as with records showing that he was trained on rifles during service. As noted above, the competent medical evidence has identified that the Veteran carries a current diagnosis of tinnitus. The sole medical evidence of record to address the etiology of the disability-the private June 2012 audiological evaluation-concludes that the Veteran's tinnitus is likely attributable to acoustic trauma to which the Veteran was exposed while on active duty. Consequently, given that the Veteran is diagnosed with tinnitus, and because he has credibly testified as to his experiences of noise exposure in service, the Board finds that it is as likely as not that the Veteran's currently diagnosed tinnitus is traceable to military service. With resolution of reasonable doubt in the Veteran's favor, service connection for tinnitus is warranted. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Entitlement to Service Connection for a Right Knee Disorder The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the Appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran has withdrawn the appeal for entitlement to service connection for a right knee disorder, and, hence, there remain no allegations of errors of fact or law for appellate consideration as to that issue. See May 2012 hearing transcript. Accordingly, the Board does not have jurisdiction to review the appeal as to that issue, and it is dismissed. ORDER Entitlement to service connection for tinnitus is granted. The appeal for entitlement to service connection for a right knee disorder is dismissed. REMAND The Board finds that further evidentiary development is necessary before a decision can be reached on the merits of the claims of service connection for bilateral hearing loss and for an acquired psychiatric disorder as secondary to tinnitus. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). As noted above, service connection requires: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). In addition, certain chronic diseases, such as hearing loss and psychoses, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). Moreover, the absence of evidence of hearing loss in service is not a bar to service connection. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies 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 (2012). The Court, in Hensley v. Brown, 5 Vet. App. 155 (1993), indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a medical relationship between the Veteran's in-service exposure to loud noise and his current disability. Service connection on a secondary basis is warranted when it is shown that disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2012). The Court has held that this includes disabilities aggravated or made chronically worse by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Board acknowledges that the record indicates that the Veteran has received treatment for his hearing and psychiatric disorders from private treatment providers. However, with the exception of a letter submitted by the audiologist in June 2012, no such treatment records have been associated with the claims file; the Veteran did not submit these records, and the RO appears not to have sought to obtain consent from the Veteran to obtain any available records. The Board notes that VA is required by the VCAA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim, to include relevant records from both Federal and private sources. 38 U.S.C.A. § 5103A(b), (c) (West 2002); 38 C.F.R. § 3.159(c)(1) (2012). Therefore, as the identified medical records may have a bearing on the Veteran's claims, the AOJ must request consent from the Veteran to seek any available records from the Veteran's private audiologist and primary care physician. The AOJ must then attempt to obtain any examination or treatment records from the identified private care providers and associate them with the claims file. Here, the Veteran contends that his hearing loss began during his period of active service. First, the Board notes that the Veteran served on active duty from April 1969 to July 1970. His DD Form 214 indicates that his military occupational specialty was as a light weapons infantryman and that he was trained as an expert in rifles. The Veteran has also credibly testified that he was frequently exposed to noise in the form of weapons fire and was also very close to an explosion that caused him to temporarily lose hearing while in service. Based on this evidence, the Board concedes the Veteran's exposure to acoustic trauma while on active duty. Regarding the Veteran's claim for service connection for bilateral hearing loss, review of the claims file reflects that audiological evaluation conducted at both June 1968 pre-induction and July 1970 separation medical examinations returned no evidence of hearing loss. The Veteran was not noted to complain of hearing loss at any time during service and responded "No" when asked at his July 1970 separation report of medical history whether he experienced any hearing loss. Post-service treatment records reflect that the Veteran was seen by VA providers in March 1998, at which time he complained of having experienced hearing loss since service. No diagnosis was assigned at that time. At a January 2007 VA audiological consult, the Veteran was diagnosed with mild to moderately severe hearing loss bilaterally. However, no audiogram results from that examination are of record. The Veteran also testified at his May 2012 hearing that he first experienced temporary hearing loss in service, when he was very near a large explosion that caused him to lose his hearing entirely for several days. He also stated at the hearing that he was frequently exposed to noise in the form of weapons fire while on active duty. His June 2012 private physician opined that this in-service exposure to acoustic trauma likely led to the Veteran's current hearing loss. However, the private audiologist failed to provide record of an audiogram, assigning only a diagnosis of "mild to moderate" hearing loss. Similarly, the Veteran's treating VA providers have found that he has hearing loss, but no audiogram reports are of record. Thus, the Board is unable to confirm if the Veteran does in fact experience current bilateral hearing loss for VA purposes, pursuant to 38 C.F.R. § 3.385. In the instant case, the Veteran contends that his current bilateral hearing loss is related to the noise exposure he experienced in service. In this regard, the Board notes, first, that it does not question that the Veteran was exposed to acoustic trauma in service. Further, the Veteran has provided evidence in the form of a June 2012 medical nexus opinion linking his in-service noise exposure to his current bilateral hearing loss, and he has stated repeatedly that he was not given ear protection and was exposed to acoustic trauma while serving on active duty. Under relevant VA regulations, action should be taken to obtain a medical opinion if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but: 1) contains competent evidence of diagnosed disability or symptoms of disability; 2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, which may be established by competent lay evidence; and 3) indicates that the claimed disability may be associated with the in-service event, injury, or disease. 38 C.F.R. § 3.159(c)(4) (2012). See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third prong of Section 3.159(c)(4), which requires that the evidence of record "indicate" that the claimed disability or symptoms may be associated with service, establishes a low threshold. The Board further notes that the Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as exposure to noise during or after service and loss of hearing acuity. See Savage v. Gober, 10 Vet. App. 488, 495 (1997); Washington v. Nicholson, 19 Vet. App. 362 (2005). However, he cannot testify, as he would be medically incompetent to do, about the etiology of his claimed hearing loss. See id. Here, although the Veteran's service treatment records demonstrate that the Veteran had normal hearing at the time of discharge, he has stated that he first noticed a loss of hearing acuity during service after exposure to acoustic trauma in the form of weapons fire and a large explosion, and has submitted a positive nexus opinion from a private physician linking the Veteran's in-service noise exposure to his hearing loss. Given the June 2012 findings of the private audiologist that the Veteran's current hearing loss is related to service, but without evidence of an audiogram in the claims file to confirm a diagnosis of hearing loss under 38 C.F.R. § 3.385, the Board finds that there is insufficient competent medical evidence on file to make a decision on this issue and must therefore remand to obtain an examination and medical nexus opinion regarding the etiology of the Veteran's current bilateral hearing loss. See McLendon, 20 Vet. App. 79. Specifically, the AOJ must arrange for the Veteran to undergo examination by a VA audiologist. The examiner must include well-reasoned medical opinion addressing the nature and etiology of the Veteran's hearing loss, as well as a detailed audiogram report showing the exact levels of hearing acuity in each ear. The examiner must further address whether it is at least as likely as not that any currently diagnosed hearing loss is related to the Veteran's time in service. In so opining, the examiner must pay particular attention to the June 2012 positive nexus opinion linking the Veteran's exposure to noise in service to his current hearing loss. The examiner's opinion must be based upon consideration of the Veteran's documented medical history and assertions through review of the claims file and must include a clear and thorough explanation for all conclusions reached. 38 U.S.C.A. § 5103A. Regarding the Veteran's claim for service connection for an acquired psychiatric disorder as secondary to tinnitus, the Board acknowledges that service treatment records are silent as to any complaints of psychiatric problems or findings of psychiatric abnormalities. Post-service records do not reflect any complaints or diagnoses of acquired psychiatric disorders, although the Veteran contended at his May 2012 hearing before the undersigned Veterans Law Judge that his private treatment providers have prescribed him medication to address the stress and anxiety that he believes has developed secondary to his tinnitus. In light of the above considerations, and given that the Board has herein awarded the Veteran service connection for tinnitus, the Board concludes that medical examination and opinion are needed. Under these circumstances, evidentiary development is needed to fully and fairly evaluate the Veteran's claims of service connection for an acquired psychiatric disorder as secondary to tinnitus. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (holding that where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted). Specifically, the Veteran should be afforded a full evaluation in order to determine the current diagnosis or diagnoses of his claimed acquired psychiatric disorder. In addition to conducting psychiatric examination, the designated examiner must provide clear diagnoses for any acquired psychiatric disorder, to include any disorder manifested by stress, anxiety, and loss of concentration, found on examination. The examiner must offer a well-reasoned etiological opinion as to whether the Veteran's tinnitus caused any psychiatric disorder, to include any disorder manifested by stress, anxiety, and loss of concentration-or, if not the cause, whether any diagnosed tinnitus has made such disability worse. Allen, supra. The examiner's opinion must be based upon consideration of the Veteran's documented medical history and assertions through review of the claims file and must include a clear and thorough explanation for all conclusions reached. 38 U.S.C.A. § 5103A. In view of the foregoing, the case is REMANDED for the following action: 1. The agency of original jurisdiction (AOJ) must review the claims file and ensure that all notification (in particular, correspondence specifically addressing the VCAA notice and duty-to-assist provisions) and development procedures per the statutory provisions at 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107 are met. This includes requesting that the Veteran provide sufficient information, and if necessary authorization, to enable the AOJ to obtain any additional pertinent evidence not currently of record pertaining to the claim on appeal. 2. The AOJ must obtain from the Veteran's private audiologist and primary care physician, and any other provider identified by the Veteran, any available medical records pertaining to the Veteran's examination or treatment at any time since his separation from active duty. The AOJ must request that a negative response be returned if no such records are available. The AOJ must follow the procedures set forth in 38 C.F.R. § 3.159(c) (2012) as regards requesting records. All records and/or responses received must be associated with the claims file. 3. After the AOJ has completed the above-requested development, the Veteran must be scheduled for VA audiological and psychiatric examinations and advised that failure to appear for an examination as requested, and without good cause, could adversely affect his appeal. See 38 C.F.R. § 3.655 (2012). The entire claims file, to include a complete copy of this remand, must be made available to, and reviewed by, the designated examiners. The examiners' reports must reflect consideration of the Veteran's documented medical history and assertions. Audiological examination-The examiner must conduct an audiological examination of the Veteran and provide a diagnosis as to any hearing loss currently present. The examiner must provide an audiogram report documenting the decrease in hearing acuity for each decibel level as specified in 38 C.F.R. § 3.385. The examiner must offer an opinion as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that any diagnosed hearing loss is related to the Veteran's period of military service, and particularly to his conceded in-service exposure to acoustic trauma. The reviewer must specifically address the Veteran's statements relating his hearing loss to the in-service acoustic trauma, as well as his claims that he first experienced hearing loss during active duty. If the examiner finds that it is less likely than not that the Veteran's current hearing loss is etiologically linked to service, he or she must discuss whether there is an alternate explanation for the onset of hearing loss and provide an explanation for why the Veteran's statements regarding onset in service and continuity of symptoms thereafter are inaccurate. The examiner must also discuss the private audiologist's June 2012 findings in the context of any negative opinion. Psychiatric examination-The examiner must review the claims file, examine the Veteran, and provide diagnoses for each acquired psychiatric disorder the Veteran currently experiences. For each such disorder, the examiner must provide an opinion as to whether it is at least as likely as not that any diagnosed acquired psychiatric disorder, to include any disorder manifested by anxiety, stress, or loss of concentration, was caused or aggravated (permanently worsened beyond normal progression) by the Veteran's tinnitus. (If the Veteran is found to have any psychiatric disability that is aggravated by tinnitus, the examiner must also quantify the approximate degree of aggravation.) The examiners must review the Veteran's claims file, to include a copy of this remand and any evidence obtained pursuant to the development directed herein, and must set forth the complete rationale for all opinions expressed, to include citation to pertinent evidence of record and/or medical authority, as appropriate. Citations to the record or relevant medical principles should be included as necessary to explain the examiners' opinions. 4. The AOJ must ensure that all examination reports comply with this remand and the questions presented in the examination request. If any report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 5. After completing the requested actions, and any additional notification and/or development deemed warranted, the claims on appeal must be adjudicated in light of all pertinent evidence and legal authority. If any benefit sought on appeal remains denied, the Veteran and his representative must be furnished a supplemental statement of the case (SSOC) and afforded the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. Thereafter, the case should be returned to the Board for further appellate review, if in order. No action is required of the Veteran until he is notified. The Veteran has the right to submit additional evidence and argument on any matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs