Citation Nr: 1304908 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 11-01 165 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from December 1942 to November 1945, and from October 1952 to October 1953. This appeal to the Board of Veterans' Appeals (Board) arose from a March 201 rating decision in which the RO denied service connection for tinnitus and bilateral hearing loss. In July 2010, the Veteran filed a notice of disagreement (NOD) as to the aforementioned claims. A statement of the case (SOC) was issued in January 2011, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later that same month in January 2011. In November 2012, the Veteran testified during a Board video- conference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. During the Board hearing, the undersigned Veterans Law Judge granted the motion of the Veteran's representative to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2012). The Board's decision addressing the claim for service connection for tinnitus is set forth below. The claim of service connection for bilateral hearing loss is addressed in the remand following the order; that matter is being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the matter on appeal have been accomplished. 2. The Veteran's lay assertions of significant in-service noise exposure are consistent with the circumstances of his service, including his military occupational specialty as a helicopter pilot. 3. The Veteran currently has tinnitus, and the competent, credible, and probative lay evidence of record indicates that the Veteran's current tinnitus is related to his active military service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus are met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Given the favorable disposition of the claim for service connection for tinnitus, the Board finds that all notification and development actions needed to fairly adjudicate the claim have been accomplished. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Veteran is seeking service connection for tinnitus on the basis that his exposure to loud noise while serving as an airplane and helicopter pilot, as well as a flight instructor, during service caused his tinnitus. The Veteran contends that he was exposed to significant noise from airplanes, helicopters, and other aircraft while serving on the flight line. During the November 2012 hearing, the Veteran testified that he currently experiences tinnitus that is characterized by constant ringing in his ears. He testified that his tinnitus had its onset in the1950s after flying helicopters while in service. He also testified that he noticed ringing in his ears after service but he did not seek treatment for many years after service because he did not know how long it would last and he became accustomed to the ringing in his ears. First addressing the question of in-service injury-here, noise exposure-the Board points out that the Veteran's service personnel records document that the Veteran's military occupational specialty (MOS) was helicopter pilot. As such, the Board accepts the Veteran's assertions of significant in-service noise exposure are consistent with circumstances of his service. See 38 U.S.C.A. § 1154(b). The Board further notes that the Veteran is competent to diagnose tinnitus, i.e., ringing of the ears, on the basis of his own lay assertions. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (noting that lay evidence is competent with regard to facts perceived through the use of the five senses). See also Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify as to ringing in the ears (tinnitus); Jandreau v. Nicholson, 492 F.3d 1372, 1377, Note 4 (Fed. Cir. 2007) (holding that sometimes a layperson will be competent to identify a medical condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer, and remanding to the Board to decide whether lay evidence was competent and sufficient to establish a shoulder dislocation); Barr v. Nicholson, 21 Vet App 303, 308-09 (2007) (holding that lay testimony is competent to establish the presence of varicose veins); cf. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (noting that, unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). Therefore, given the Veteran's testimony that he currently experiences tinnitus, the Board finds there is a current diagnosis of tinnitus. As such, the remaining inquiry in this case is whether there is competent, credible, and probative evidence establishing a medical nexus between current tinnitus and the Veteran's service. The service treatment records reflect no complaints, findings or diagnosis pertinent to tinnitus. As indicated, however, the Veteran is competent, as a layperson, to report that about which he has personal knowledge, including the onset, presence, and nature of his symptoms, including tinnitus. See Layno, supra. The Board also finds no reason to question the veracity of the Veteran's Board hearing testimony in this regard, and thus finds such testimony to be credible. Therefore, while there is no contemporaneous evidence of tinnitus during service, there is competent lay evidence establishing that tinnitus was manifested during the 1950s after the Veteran flew helicopters in service. In November 2009, the Veteran was afforded a VA examination to obtain a medical opinion as to whether he currently has tinnitus related to his military service. During that examination, the Veteran reported having tinnitus that occurred once a month, but the examiner noted that the Veteran was unsure of when his tinnitus had its onset. The examiner also noted, however, that tinnitus is a subjective complaint and there are no objective measures to validate its presence or absence. Nevertheless, the VA examiner opined that the Veteran's report of experiencing tinnitus once a month is within normal limits and is experienced by most people without hearing loss. Therefore, the VA examiner opined that the Veteran's military noise exposure did not cause his tinnitus. The November 2009 VA examiner did not review the claims file prior to rendering her initial opinion. After reviewing the claims file in February 2010, the examiner again noted the Veteran's report of experiencing tinnitus once a month and she also noted that a diagnosis of noise-induced tinnitus requires a diagnosis of noise-induced hearing loss or an association between tinnitus onset and some noise-related event. The VA examiner ultimately opined that the Veteran's noise is more consistent with transient head noise than with tinnitus and, as such, military noise exposure did not cause his transient head noise. While the Board has considered the opinion of the November 2009 VA examiner, the Board finds that such opinion is not persuasive, as it appears to have been based upon a misunderstanding of the Veteran's pertinent history. In this regard, the Veteran testified during the Board hearing that the information the examiner recorded with respect to his tinnitus is not consistent with his actual history. He clarified that although he initially reported that he was unsure of the exact onset of his tinnitus and that, at first , his tinnitus only occurred once a month, he told the examiner that his tinnitus began in the 1950s after he flew helicopters, that he first sought treatment in 1985, and that his tinnitus has now progressed to being constant. The Board points out that, as a medical opinion can be no better than the facts alleged by a veteran, an opinion based on an inaccurate factual premise has no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Swann v. Brown, 5 Vet. App. 229, 233 (1993); Black v. Brown, 5 Vet. App. 177, 180 (1993). While no medical professional has specifically related the Veteran's current tinnitus to his military service, such an opinion is not necessarily needed with respect to tinnitus. Given the nature of the disability, a explained above, the Board finds that the Veteran's competent and credible assertions of experiencing tinnitus in service, continuing to experience tinnitus after service (with increasing frequency), and currently experiencing tinnitus are sufficient to support a find that there appears to exist a medical nexus between the Veteran's military service and his current tinnitus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107; Gilbert, 1 Vet, App. at 53-56. Given the totality of the evidence, to particularly include the Veteran's credible lay assertions in support of his claim, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for tinnitus are met. ORDER Service connection for tinnitus is granted. REMAND As indicated above, the Veteran is also seeking service connection for bilateral hearing loss. The Board finds that further RO action on this claim, prior to appellate consideration, is warranted. 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, 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 4000 Hz 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. Review of the record reveals the Veteran was afforded a VA audiological examination in November 2009 at which time the Veteran was diagnosed with moderately severe sloping to severe sensorineural hearing loss in the right ear, with moderate sloping to severe sensorineural hearing loss in the left ear. Indeed, audiometric testing revealed diminished hearing acuity in both ears that reached the level of severity to be considered a disability under 3.385. However, after reviewing the claims file in February 2010, the November 2009 VA examiner opined that the Veteran's bilateral hearing loss is less likely as not related to his military noise exposure, noting, inter alia, that, the Veteran first noticed hearing loss in 1985. See February 2010 Addendum to November 2009 VA examination. During the November 2012 hearing, the Veteran asserted that the November 2009 VA examination was not adequate because the information the examiner had with respect to his hearing loss is not consistent with his history. In this regard, while the VA examiner noted that the Veteran first noticed hearing loss in 1985, the Veteran testified that his hearing loss began in the 1950s after he flew helicopters but that he did not seek treatment for his hearing loss until 1985. As noted above, the Veteran is competent to report the nature of his symptoms and the Board considers the Veteran's testimony during the November 2012 hearing to be credible. As with respect to the tinnitus claim noted above, the Board finds that November 2009 VA opinion is inadequate to resolve the claim for service connection for hearing loss because the examiner's opinion is based upon inaccurate factual premise, i.e., that the Veteran's hearing loss had its onset in 1985, as opposed to during the 1950s after flying helicopters in service. See Reonal, 5 Vet. App. at 461. The Board points out that, unlike tinnitus, and diminished hearing (which the Veteran is competent to report), hearing loss to an extent recognized as a disability for VA purposes is a more complex disability, requiring evidence by a competent professional to resolve questions of both diagnosis and etiology. Accordingly, given the inadequacy of the November 2009 opinion, the Board find that further VA while the Board regrets any additional delay in the adjudication of this case, the Board finds a remand is necessary in order to afford the Veteran an adequate audiological examination and obtain an adequate medical opinion that considers the correct facts in this case. Once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the appellant why one will not or cannot be provided. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Hence, the RO should arrange for the Veteran to undergo VA examination, by an Ear, Nose, and Throat (ENT) physician or audiologist, at a VA medical facility. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may result in denial of the claim for service connection (as the original claim will be considered on the basis of the evidence of record). See 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo further examination, to ensure that the record before the examiner is complete, and that all due process requirements are met, the RO should obtain and associate with the claims file all outstanding, pertinent records. The Veteran testified that he sought treatment for his hearing loss with a Dr. Briley in 1985 when his hearing loss was getting progressively worse. He testified that he and Dr. Briley discussed that his hearing loss was related to his flying helicopters. The evidentiary record does not contain any records from Dr. Briley and there is no indication that VA has attempted to obtain records from Dr. Briley. In this regard, however, the Veteran testified that he is not sure where Dr. Briley is but he was associated with the Sibert Clinic. While the Veteran has indicated that he is unsure of Dr. Briley's current address, VA must attempt to obtain this evidence. Indeed, VA has a duty to assist the Veteran in the development of the claim, including obtaining evidence relevant to the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Therefore, on remand, the RO should request that the Veteran provide Dr. Briley's last known address and attempt to obtain the Veteran's treatment records from 1985. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim remaining on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Request that the Veteran submit treatment records from Dr. Dailey and the Sibert Clinic in 1985 or, in the alternative, complete an authorization and consent form for Dr. Dailey and the Sibert Clinic in order for VA to obtain this evidence. Inform the Veteran that he should include Dr. Dailey's last known address in order for VA to attempt to obtain this evidence. 2. After receiving a completed authorization and consent form, obtain the Veteran's treatment records from Dr. Daily and/or the Sibert Clinic and associate them with the claims file. All efforts to obtain this evidence, including any negative responses, should be properly documented in the claims file. 3. After all records/responses received are associated with the claims file, or a reasonable time period for the Veteran's response has expired, arrange for the Veteran to undergo a VA examination, by an ENT physician or an audiologist, at a VA medical facility. The entire claims file, to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions-to include his credible assertions of in-service noise exposure. All appropriate tests and studies should be accomplished (in particular, audiometric and speech discrimination testing) with all results made available to examiner prior to the completion of his or her report) and all clinical findings should be reported in detail. The examiner should clearly indicate, with respect to each ear, whether the Veteran currently has hearing loss to an extent recognized as a disability for VA purposes. Is so, the examiner should offer an opinion, consistent with sound medical principles, and based on consideration of the Veteran's military and post-service history and assertions, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability is the result of injury or disease incurred or aggravated in service, to particularly include in-service noise exposure, as alleged. The physician should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 4. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file a copy of any notice of the date and time of the examination sent to him by the pertinent VA medical facility. 5. To help avoid a future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claims on appeal in light of all pertinent evidence and legal authority. 7. If the benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process, and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). 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. 2012). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs