Citation Nr: 1306264	
Decision Date: 02/22/13    Archive Date: 02/27/13

DOCKET NO.  10-03 063	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service connection for the residuals of a head injury, claimed as headaches.

4.  Entitlement to service connection for a right shoulder disorder.

5.  Entitlement to service connection for a respiratory disorder.


REPRESENTATION

Appellant represented by:	New York State Division of Veterans' Affairs


WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

M. Hannan, Counsel


INTRODUCTION

The Veteran appellant had active service in the United States Army from September 1968 to August 1971, including a year in Vietnam.  This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York.

In May 2011, a Travel Board hearing was held at the RO before the undersigned.  A transcript is in the claims file.  Thereafter, the Board remanded the case for additional development in February 2012.  The case has now been returned to the Board for appellate review.

In addition to the paper claims files, there is an electronic file (Virtual VA) associated with the Veteran's claims.  Virtual VA does currently contain evidence pertinent to the Veteran's claims.

The issues of entitlement to service connection for head injury residuals, a right shoulder disorder and a respiratory disorder are addressed in the REMAND portion of the decision below and those issues are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The competent and probative medical evidence of record preponderates against a finding that the appellant has current bilateral hearing loss which is due to events in active service, and sensorineural hearing loss as an organic disease of the nervous system is not shown to have been manifested to a compensable degree within one year after the appellant's separation from service in January 1970.

2.  The evidentiary record raises a reasonable doubt as to whether the appellant's tinnitus had its onset during active military service.


CONCLUSIONS OF LAW

1.  Bilateral hearing loss was not incurred in or aggravated by service, nor may sensorineural hearing loss, as an organic disease of the nervous system, be presumed to have been incurred in service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012).

2.  Giving the benefit of the doubt to the Veteran, tinnitus was incurred in active military service.  38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The appellant contends that he is entitled to service connection for bilateral hearing loss and for tinnitus.  He maintains that the etiology of both of these conditions is rooted in his experiences during his active military service, and in particular to his exposure to acoustic trauma from weapons fire and other military noise he was exposed to in Vietnam.

I.  Duty to Notify and Assist

VA's duty to notify and assist claimants in substantiating their claims for VA benefits is codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his 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).  

Proper notice from VA 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 in accordance with 38 C.F.R. § 3.159(b)(1).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

Given the fully favorable decision on the tinnitus service connection claim contained herein, the Board finds that any defect in the notice or assistance provided to the Veteran in relation to that claim constitutes harmless error.  Turning to the hearing loss claim, if complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC).  Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial.  Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

In January 2009, prior to the promulgation of the May 2009 rating action, the RO sent the appellant a letter informing him of the types of evidence needed to substantiate his hearing loss service connection claim and VA's duty to assist him in substantiating his service connection claim.  The letter informed him that VA would assist him in obtaining evidence necessary to support his claim, such as medical records, records from other Federal agencies, etc.  He was advised, under 38 C.F.R. § 3.159(b)(1), that it is his responsibility to provide or identify, and furnish authorization where necessary for the RO to obtain, any supportive evidence pertinent to his claim.  

The Board finds that the information provided to the appellant complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist.  In addition, the October 2012 SSOC explained the basis for the RO's actions.  The appellant was also provided with opportunities to submit more evidence.  All relevant evidence identified by the appellant relative to his hearing loss service connection claim has been obtained and associated with the claims file, and neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal.  It is therefore the Board's conclusion that the appellant has been provided with every opportunity to submit evidence and argument in support of his hearing loss service connection claim, and to respond to VA notices.

In addition, to whatever extent the decision of the United States Court of Appeals for Veterans Claims (Court) in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board finds no prejudice to the appellant in proceeding with the present decision.  Letters from the RO dated in January 2009, and April 2010, contained the information required by Dingess. 

VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d).  Here, relevant service medical treatment records have been associated with the claims file.  Private treatment records and VA outpatient medical treatment records have also been associated with the claims file.  The appellant had a VA audiometric examination in March 2012.  

A medical opinion is adequate when it is based upon consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one."  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991).  The March 2012 examination was conducted by an audiologist.  The report reflects review of the appellant's service medical records.  The examination included reports of the symptoms for the claimed bilateral hearing loss and demonstrated objective evaluations.  The examiner was able to assess and record the condition of the appellant's auditory acuity as an audiometric examination was accomplished.

The Board finds that the March 2012 examination report is sufficiently detailed with recorded history, impact on employment and daily life, and clinical findings relating to the appellant's claimed hearing loss.  In addition, it is not shown that the examination was in any way incorrectly prepared or that the VA examiner failed to address the clinical significance of the appellant's claimed hearing loss condition.  Further, the VA examination report addressed the applicable rating criteria.  As a result, the Board finds that additional development by way of another examination would be redundant and unnecessary.  See 38 C.F.R. § 3.326 and 38 C.F.R. § 3.327 and Green v. Derwinski, supra.  Therefore, the Board concludes that the appellant was afforded an adequate examination for his claimed bilateral hearing loss.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

Furthermore, the appellant was informed about the kind of evidence that was required and the kinds of assistance that VA would provide and he was supplied with the text of 38 C.F.R. § 3.159.  He did not provide any information to VA concerning available relevant treatment records that he wanted the RO to obtain for him that were not obtained.  He had previously been given more than one year in which to submit evidence after the RO gave him notification of his rights under the pertinent statute and regulations.  Thus, it appears that all obtainable evidence identified by the appellant relative to his claim has been obtained and associated with the claims file.

A remand from the Board or from the United States Court of Appeals for Veterans Claims (Court) confers upon a veteran the right to substantial, but not strict, compliance with that order.  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).  In this case, pursuant to the February 2012 Board remand, VA treatment records were added to the claims file and the appellant was afforded a VA examination in March 2012.  Therefore, substantial compliance has been achieved.

Therefore, there is no duty to assist that was unmet and the Board finds no prejudice to the appellant in proceeding with the issuance of a final decision.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby).  Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

All relevant facts with respect to the claims addressed in the decision below have been properly developed.  Under the circumstances of this case, a remand would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided).

II.  The Merits of the Claims

In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim.  The appellant prevails in either event.  However, if the weight of the evidence is against the appellant's claim, the claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

In order to establish service connection for a disability, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service.  Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  In many cases, medical evidence is required to meet the requirement that the evidence be "competent".  However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).

To establish service connection for a disability, symptoms during service, or within a reasonable time thereafter, must be identifiable as manifestations of a chronic disease or permanent effects of an injury.  Further, a present disability must exist at some point during the claim process, and it must be shown that the present disability is the same disease or injury, or the result of disease or injury incurred in or made worse by the appellant's military service.  Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); 38 C.F.R. § 3.303(a); McClain v. Nicholson, 21 Vet. App. 319 (2007).  In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b).  Certain chronic disabilities, such as diseases of the nervous system (e.g., sensorineural hearing loss), may be presumed to have been incurred in service if they become manifest to a degree of 10 percent or more within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.  

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant.  Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102.  

In this case, the appellant contends that he currently has bilateral hearing loss and tinnitus that were first manifested in 1969, and in connection with exposure to military acoustic trauma in Vietnam.  The appellant further contends that these conditions became problematic for him in the mid-1970s and that they have continued unabated to the present time.  He provided testimony to that effect during his May 2011 Travel Board hearing; he has also submitted various written statements to that effect.

The Board finds the Veteran's statements about his noise exposure in service credible/believable, as they are consistent with his military occupational specialty (MOS) (Military Police).  See VA Fast Letter 10-35 (Sept. 2, 2010) (providing Duty MOS Noise Exposure Listing and stating that if the duty position is shown to have a "Moderate" probability of exposure to hazardous noise (as does Military Police), exposure to such noise will be conceded for purposes of establishing the in-service event).

A.  Hearing Loss Claim

The determination of whether a veteran has a ratable hearing loss "disability" is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a disability (for VA purposes) when the threshold level in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz (Hz) is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores utilizing recorded Maryland CNC word lists are less than 94 percent.  38 C.F.R. § 3.385.  The Court has indicated that, "when audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service."  Hensley v. Brown, 5 Vet. App. 155, 160 (1993).  The Court held that the threshold for normal hearing is from 0 to 20 decibels and that higher threshold levels indicate some degree of hearing loss.  Hensley, 5 Vet. App. at 157.  The Court further held that 38 C.F.R. § 3.385 operates only to establish when a hearing loss can be service connected.  Hensley at 159.  It was also found that, regardless of when the criteria of 38 C.F.R. § 3.385 are met, a determination must be made as to whether the hearing loss was incurred in or aggravated by service.

Review of the appellant's service medical treatment records revealed no complaints, findings, treatment, or diagnosis of hearing loss during service.  The appellant underwent audiometric testing at the time of his entrance examination in December 1967.  The pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
15
N/A
15
LEFT
15
15
15
N/A
15

The appellant underwent a service separation examination in July 1971.  Audiometric testing was accomplished at this time.  The pure tone thresholds, in decibels, were as follows:  




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
N/A
0
LEFT
0
0
0
N/A
0

The evidence of record includes private treatment records and employer medical records dated between 1980 and 2009.  These records are silent as to any complaints of or findings of hearing loss.

Review of the appellant's VA treatment records reveals that he complained of hearing loss and tinnitus in July 2011.  He said that these appeared to be getting worse over the course of the previous ten years.  In addition, he reported that he had last undergone a hearing test at least 20 years earlier.  The appellant was afforded a VA audiology consultation in August 2011.  He reported that he had occupational noise exposure for 11 years with the use of ear protection.  He also reported recreational noise exposure and said that he did woodworking with ear protection.  

The appellant underwent a VA audiometric examination in March 2012; the examiner reviewed the appellant's claims file.  The appellant reported that he was exposed to a great deal of firearms noise in service and that he was exposed to field artillery noise on a nightly basis while he was in Vietnam.  He also said that he served as a door gunner on a helicopter.  Occupational and recreational noise exposure post-service was said to have occurred with the use of hearing protection.  Audiometric testing was accomplished at this time.  The pure tone thresholds, in decibels, were as follows:  




HERTZ



500
1000
2000
3000
4000
RIGHT
15
30
30
60
70
LEFT
15
20
25
30
50

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 98 percent in the left ear.  Each ear meets the standard found in 38 C.F.R. § 3.385 for a current hearing loss disability for VA purposes.

The examiner rendered a negative opinion as to the etiology of the appellant's current bilateral sensorineural hearing loss.  The examiner noted that the appellant had normal hearing at the time of his discharge from service in 1971, and stated that it was not at least as likely that the appellant's hearing loss was due to his military service.  The examiner noted that noise causes hearing loss when there is constant exposure without adequate relief from the noise for ears to rest and that hearing loss from noise only occurs when the noise is regularly present and loud enough to cause temporary or permanent hearing threshold shift.  The examiner also noted that the appellant's hearing loss had demonstrated a threshold shift since August 2011, and that this suggested that there was a natural progression of the hearing loss.  The examiner concluded that this shift in thresholds was not due to the noise the appellant encountered while he was in the military between September 1968 and August 1971.

As noted above, in order for service connection to be warranted for a claimed condition, there must be evidence of a present disability that is attributable to a disease or injury incurred during service.  Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  The Court has held that, in order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  Hickson, 12 Vet. App. at 253.  

The Board notes that "[c]ontinuity 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."  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 495-96 (1997)).  In this case, no hearing loss was noted during service, as no diagnosis was ever rendered and the July 1971 separation audiogram showed normal hearing.  Furthermore, there is no evidence of any hearing loss meeting the requirements for a compensable evaluation within one year of service separation.

Accordingly, the Board notes that whether service connection may be granted in this case turns on evidence of a nexus between the current bilateral hearing loss and the in-service noise exposure, and the Veteran's description of continuous symptomatology since service.  Concerning this, the Board notes that, notwithstanding a showing of continuous symptoms since service, medical evidence is still required to demonstrate a nexus between a current disability and the continuous symptoms "unless such a relationship is one as to which a lay person's observation is competent[.]"  Savage, 10 Vet. App. at 497.

The appellant's test results at separation in 1971, noted above, did not meet any of the requirements of 38 C.F.R. § 3.385.  Therefore, the question that must be answered in this case is whether the hearing loss the appellant has now, which does meet the requirements of 38 C.F.R. § 3.385, is the result of the acoustic trauma he experienced while serving in the Army as a military policeman, including one year in Vietnam.

The Board has considered the appellant's written statements and testimony submitted in support of his arguments that he has hearing loss as a result of his service.  To the extent that these statements represent evidence of continuity of symptomatology, without more, those statements are not competent evidence of a diagnosis of hearing loss, nor do they establish a nexus between a medical condition and his military service.  As noted by the Court in Hensley, supra, hearing loss is measurable by objective testing.  Furthermore, such testing requires specialized equipment and training for a determination as to decibel levels at specific frequencies, as well as Maryland CNC testing, and is therefore not susceptible to lay opinions on the severity or etiology of hearing loss or nexus to service.  

The Board recognizes the sincerity of the arguments advanced by the Veteran that he has bilateral sensorineural hearing loss that is related to his military service.  It is true that lay statements may be competent 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 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Davidson v. Shinseki, 581 F.3d 1313 (2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  However, the Board cannot give decisive probative weight to the opinions of the Veteran or his representative about the origins of his hearing loss, because they are not qualified to offer such opinions.  Davidson, 581 F.3d 1313; Buchanan, 451 F.3d 1331; Jandreau, 492 F.3d 1372.  

Therefore, the Veteran's statements are competent evidence regarding his in-service noise exposure he experienced in service and since service, but his contention that the current bilateral sensorineural hearing loss is the result of that acoustic trauma is not competent evidence.  Id.  The appellant is competent in this case to report his hearing loss symptoms, but nothing in the record demonstrates that he has received any special training or acquired any medical expertise in evaluating and determining causal connection for the claimed condition or in evaluating Hertz findings.  Therefore, a medical expert opinion would be more probative regarding the causation question in this case.  See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012).

Thus, the Board cannot give decisive probative weight to the opinions of the appellant as to the etiology or severity of his claimed hearing loss, because he is not qualified to offer such opinions.  Although claimants may be competent to provide the diagnoses of simple conditions, such as a broken leg, they are not competent to provide evidence on more complex medical questions beyond simple observations.  See Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue).  Indeed, even if lay testimony is competent, should VA find it to be mistaken or lacking credibility, the Board may reject it as unpersuasive and, thus, not ultimately probative.  The Board may find a lack of credibility in, for example, conflicting medical statements or witness biases.  Buchanan at 1337.  The lack of contemporaneous medical evidence is also relevant; however, the mere lack of such evidence may not constitute the sole basis for discrediting the lay evidence.  Id.   

The Board notes that a grant of service connection for tinnitus does not extend to hearing loss because they are different, and the Court has recognized that tinnitus is a subjective condition which is not measurable by medical testing.  See Charles v. Principi, 16 Vet. App. 370, 374 (2002).  Hearing loss is measurable by objective testing.  See Hensley, supra. 

Therefore, the Board finds that the preponderance of the evidence is against the appellant's claim of entitlement to service connection for bilateral hearing loss.  As such, the evidence is insufficient to support a grant of service connection for hearing loss in either ear on either a direct basis or a presumptive basis.  Because the preponderance of the evidence is against the bilateral hearing loss service connection claim, the benefit of the doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001).

B.  Tinnitus Claim

As previously noted, service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any 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).

The Veteran underwent a VA audiology examination in March 2012; he reported that he had been experiencing tinnitus since he was on active duty.  He stated that the tinnitus started as a hiss and transitioned to a constant ringing noise.  The examiner opined that it was not at least as likely as not that the appellant's tinnitus was related to his military service and instead linked the tinnitus to the hearing loss, stating that it was at least as likely as not that the tinnitus was a symptom of the hearing loss.

The evidence of record includes written statements and testimony from the appellant that he had been exposed to acoustic trauma in service from firearms and from the nearby firing of artillery pieces when he was in Vietnam.  He stated that he did not have hearing protection to use during service.  The appellant has reported that his tinnitus had its onset in service between September 1969 and August 1971.  He essentially reported that he did not experience any loud noises without ear protection in his post-military occupational and recreational pursuits.  

The appellant has repeatedly stated that he first experienced tinnitus in service and that the condition has continued to the present time.  A veteran's lay statements may be competent 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 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  Ringing in the ears is the sort of condition that is observable by a lay person.  See also Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms).

The evidence of record does not include any etiologic opinion that relates the appellant's current tinnitus to service and the service medical records are silent on the matter of tinnitus.  Viewing the evidence in a light most favorable to the Veteran, the positive evidence of record consists of the fact that he currently suffers from tinnitus and has reported that it began when he was in service.  In addition, he served as a military policeman while he was on active duty; based on the appellant's service record, it may be assumed that he experienced noise trauma associated with his Army duties.  See VA Fast Letter 10-35 (Sept. 2, 2010).  In addition, the Veteran is competent to assert the occurrence of in-service injury.  See, e.g., Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  

The evidence for and against the claim for service connection for tinnitus is at least in approximate balance.  The record presents a reasonable doubt that the appellant's tinnitus had its onset during his active service and has continued to the present.  Thus, resolving reasonable doubt in favor of the Veteran, the Board concludes that, based on the appellant's lay statements regarding onset and continuity of tinnitus symptoms and the medical evidence of record, the appellant's tinnitus is as likely the result of his noise exposure in service as it is the result of some other factor or factors.  In addition, there is no evidence of record to contradict the appellant's statements regarding the onset date of his tinnitus.  Therefore, the Board will grant service connection for tinnitus.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Service connection for bilateral hearing loss is denied.

Service connection for tinnitus is granted.


REMAND

A determination has been made that additional development is necessary with respect to the remaining issue on appeal.  Accordingly, further appellate consideration will be deferred and this case remanded to the AMC/RO for action as described below.

The United States Court of Appeals for Veterans Claims (Court) has held that a remand by the Court or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders.  Stegall v. West, 11 Vet. App. 268 (1998).  The February 2012 Board remand directives state that the originating agency was to request from the National Personnel Records Center (NPRC) in St. Louis, Missouri, or other appropriate source, any records of the Veteran's inpatient treatment at the hospital at Fort Dix, New Jersey, for the period from September 1968 to November 1968.  The directives further stated that efforts to obtain the foregoing records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile; the non-existence or unavailability of such records was to be verified by each Federal department or agency from whom they were sought and this was supposed to be documented for the record.

Review of the claims file reveals that the RO sent a request for these records in February 2012.  However, there is no indication in the record that any response was ever received.  Furthermore, the RO readjudicated the appellant's claims by simply relying on the records that were added to the claims file in March 2010, and did not verify or document the non-existence or unavailability of any additional records as directed by the Board.  On remand, these records must be sought and all ongoing medical records should also be obtained.  See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (federal records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).

The Board notes that the appellant served with the 504th MP Battalion while he was in Vietnam and that he has described a jeep accident in Vietnam wherein he incurred a head and right shoulder injury.  In adjudicating a claim for service connection, VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(b); 38 C.F.R. §§ 3.303(a), 3.304; see Hayes v. Brown, 5 Vet. App. 60, 66 (1993).  In addition, 38 U.S.C.A. § 1154(b) provides that "in the case of any Veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service."  

In this case, the RO has not yet made any determination as to whether or not the appellant is a combat veteran.  In Daye v. Nicholson, 20 Vet App 512 (2006), the Court chastised VA for not securing and reviewing the history of the appellant's unit for evidence of combat.  On remand, the RO must determine whether the appellant is a combat veteran and whether 38 U.S.C.A. § 1154(b) applies in this case.

Therefore, to ensure full compliance with due process requirements and the development of all potentially relevant evidence as to all issues on appeal, this case is REMANDED to the AMC/RO for the following:

1.  Assure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A, the implementing regulations found at 38 C.F.R. § 3.159, and any other applicable legal precedent has been completed.

2.  Request from the National Personnel Records Center (NPRC) in St. Louis, Missouri, or other appropriate source, any records of the appellant's inpatient treatment at the hospital at Fort Dix, New Jersey, for the period from September 1968 to November 1968.  It should be noted that these records may be filed under the name of the facility and not under the name of the appellant.

Efforts to obtain the foregoing records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile.  The non-existence or unavailability of such records must be verified by each Federal department or agency from whom they are sought and this should be documented for the record.  38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2).

3.  Contact the appellant to obtain the names and addresses of all private, VA or other government health care providers and treatment centers where he has been treated for any headaches, right shoulder disorder or upper respiratory disorder since August 1971.  After securing the necessary release(s), obtain any such records that have not been previously secured.  

To the extent there is an attempt to obtain any of these records that is unsuccessful, the claims file should contain documentation of the attempts made.  The appellant and his representative should be informed of the negative results and be given opportunity to secure the records.

4.  After the above development is completed, make a specific determination as to whether the appellant is a combat veteran.

5.  Undertake any other warranted development.  

6.  Then, readjudicate the claims.

7.  If any benefit sought on appeal remains denied, provide the appellant and his representative a Supplemental Statement of the Case (SSOC).  The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal.  An appropriate period of time should be allowed for response.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

The appellant is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158 and 3.655.

Thereafter, the case should be returned to the Board, if in order.  The Board intimates no opinion as to the ultimate outcome of this case.  The appellant need take no action unless otherwise notified.

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).




______________________________________________
L. M. BARNARD
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs