Citation Nr: 1305380 Decision Date: 02/13/13 Archive Date: 02/21/13 DOCKET NO. 10-45 027 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for Meniere's disease. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his daughter ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from July 1955 to August 1957. These matters initially came to the Board of Veterans' Appeals (Board) on appeal from decisions of the RO in April 2009 and in December 2009 that, in pertinent part, denied service connection for bilateral hearing loss and for tinnitus; and declined to reopen a claim for service connection for Meniere's disease on the basis that new and material evidence had not been received. The Veteran timely appealed. In November 2011, the Veteran and his daughter testified during a video conference hearing before the undersigned. Following the hearing, the Veteran submitted additional evidence and waived initial consideration of the evidence by the RO. In January 2012, the Board found new and material evidence to reopen the Veteran's claim for service connection for Meniere's disease, and remanded each of the claims on appeal for additional development. In December 2012, the Board granted service connection for tinnitus; that matter is no longer in appellate status, and will not be addressed by the Board. Also, in December 2012, the Board again remanded the matters of service connection for bilateral hearing loss and for Meniere's disease for additional development. Lastly, in addition to reviewing the Veteran's paper claims file, the Board has surveyed the contents of his Virtual VA file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran and his representative when further action is required. REMAND A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In December 2012, the Board essentially found that the Veteran's lay testimony was credible; and that he should be afforded VA examinations for purposes of obtaining etiology opinions as to the nature and onset of any current bilateral hearing loss and Meniere's disease. It does not appear that either of the requested examinations has been scheduled, in compliance with the Board's prior remand. Examinations VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a) (2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also 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). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In this case, the Veteran's service treatment records are not available and have been found to be fire-related. Meniere's Disease The Veteran contends that the onset of his Meniere's disease involved headaches and dizziness he experienced in active duty, along with hearing loss. In July 1976, the Veteran reported that, after his service discharge he was bothered with dizziness and ear ringing every three-to-six months; and in 1965, he suffered more severely and constantly-with dizziness, ear ringing, and balance problems. The post-service records show that the Veteran underwent an endolymphatic sac decompression procedure on his right ear in August 1976. At that time the Veteran complained of dizziness, and right ear pain and right side of head pain. Some improvement in vertigo was noted following the surgery, although the Veteran still had slight unsteadiness. The Veteran also reported worsening right ear hearing loss ever since then. In May 2009, the Veteran's treating physician, Dr. English, opined that the Veteran's Meniere's disease with vertigo was linked to his active service. As noted, Dr. English indicated that the Veteran had presented him with records which documented treatment in active service; and that he had no other reason to believe otherwise. Nor did Dr. English believe that any diagnosis had pre-existed active service. Sick or morning reports have documented the Veteran's hospitalization for a period of time in October 1955 during active service; however, those reports do not include a diagnosis and do not identify diseases or injuries being treated. Under these circumstances, the Board finds that an examination is needed to determine whether the Veteran has current Meniere's disease that either had its onset during service or is related to his active service, or to a service-connected disability. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4) (2012). Bilateral Hearing Loss The Veteran contends that service connection for bilateral hearing loss is warranted on the basis that he was exposed to excessive noise in active service, while serving as a gunner of a 155mm howitzer for nearly two years. Sick or morning reports, dated in December 1955, confirm the Veteran's assignment in an artillery unit (i.e., Company C, 81st Medical Tank Battalion). The Veteran's treating physician, Dr. English, opined in May 2009 that the Veteran's bilateral hearing loss was linked to his active service; and indicated that the Veteran had presented him with records which documented treatment in active service. Dr. English commented that he had no other reason to believe otherwise, and did not believe that any diagnosis had pre-existed active service. Likewise, sick or morning reports have documented the Veteran's hospitalization for a period of time in October 1955 during active service, but do not include a diagnosis or identify diseases or injuries being treated. While testifying in November 2011, the Veteran described having problems with hearing loss when he started firing "that gun." He testified that his hearing problems were noted at the time of his discharge examination in 1957. The Veteran also testified that he completely lost his right ear hearing after the surgery in 1976. He also testified of gradually worsening hearing loss, and that he now wore a hearing aid in his left ear. The Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington, 19 Vet. App. at 368. Service connection has been awarded for tinnitus based on the Veteran's credible and competent reports of a continuity of symptomatology since his active service. VA treatment records, dated in July 2010, show assessments of severe to profound mixed hearing loss of the right ear, and severe mixed hearing loss of the left ear. Evidence of a current hearing loss disability-i.e., one meeting the requirements of 38 C.F.R. § 3.385-and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In February 2012, M.C. indicated that she met the Veteran before he entered active service; and that when he returned, he was suffering from severe hearing loss. Given the likelihood that the Veteran had significant noise exposure as a gunner of a 155mm howitzer during active service, an examination is needed to determine whether the Veteran's current bilateral hearing loss either had its onset during service or is related to his active service-to specifically include noise exposure during active service as a gunner of a 155mm howitzer as alleged; or if the disability is otherwise related to his active service or to a service-connected disability. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4) (2012). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Afford the Veteran a VA examination to identify all current disability underlying the Veteran's current complaints of Meniere's disease, and the likely etiology of the disease or injury. The examiner is requested to determine whether it at least as likely as not (50 percent probability or more) either had its onset in active service, or is the result of disease or injury incurred during active service-specifically, to include exposure to excessive noise in artillery, and the Veteran's claim of continuing dizziness and vertigo since then. The examiner is asked to explain the reasons behind any opinions offered. The examiner is also reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The Veteran's claims file, to include a complete copy of this REMAND, must be provided to the examiner designated to examine the Veteran, and the examination report should note review of the file. 2. Afford the Veteran a VA audiology examination to identify all current disability underlying the Veteran's current complaints of bilateral hearing loss; and to obtain information as to the current nature and likely etiology of any current hearing loss of either ear. All appropriate tests and studies (to include audiometric testing) should be accomplished, and all clinical findings should be reported in detail. The examiner should specifically indicate whether the Veteran currently has hearing loss in either ear to an extent recognized as a disability for VA purposes (i.e., has an auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz of 40 decibels or greater; or an auditory threshold for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 hertz of 26 decibels or greater; or speech recognition scores using the Maryland CNC Test of less than 94 percent). Based on the examination and review of the record, the examiner should offer opinions as to whether it is at least as likely as not (50 percent probability or more) that any such hearing loss disability of either ear had its onset in service, or is the result of disease or injury incurred during service-to specifically include noise exposure during active service as a gunner of a 155mm howitzer, as reported by the Veteran. The examiner should consider the credible report of M.C. that the Veteran experienced difficulty hearing in service, which continued thereafter. See statement dated in February 2012. The examiner is asked to explain the reasons behind any opinions offered. The examiner is also reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The Veteran's claims file, to include a complete copy of this REMAND, must be provided to the examiner designated to examine the Veteran, and the examination report should note review of the file. 3. After ensuring that the requested actions are completed, the RO or AMC should re-adjudicate the claims on appeal. If the benefits sought are not fully granted, the RO or AMC must furnish a SSOC, before the claims file is returned to the Board, if otherwise in order. No action is required of the Veteran and his representative until they are notified by the RO or AMC; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claims. 38 C.F.R. § 3.655 (2012). The Veteran 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). These claims 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). _________________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).