Citation Nr: 1306672 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 10-23 839 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a left eye disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from September 1952 to April 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran had a hearing before the undersigned Veterans Law Judge in December 2012. A transcript of that proceeding has been associated with the claims file. The Board notes that, in his August 2009 notice of disagreement (NOD) and June 2010 substantive appeal, the Veteran also indicated that he disagreed with the July 2009 denial of his claim for service connection for degenerative arthritis of the lumbar spine. In a September 2012 rating decision, the RO granted service connection for the Veteran's low back condition. This decision was a complete grant of benefits with respect to this issue. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Therefore, the issue is not currently on appeal before the Board. The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA electronic claims file to ensure a total review of the evidence. 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 appellant if further action is required. REMAND The Veteran is seeking entitlement to service connection for a bilateral hearing loss diisability, tinnitus, and a left eye disability. Despite the extensive development already undertaken, the Board finds that the claims must be remanded for additional development. Initially, the Board observes that, in October 2012, the Veteran submitted additional, non-duplicative evidence, specifically a September 2008 private audiogram. In addition, duplicative private and service treatment records were provided. Although the Veteran indicated that she believed this evidence to already be in the possession of VA, the Board cannot find any earlier copies of record. The earliest previous documented evidence of a diagnosed disability was more than a decade later, in the early 1990s. In addition, VA's duty to assist also includes a duty to provide the Veteran with a proper medical examination or opinion when warranted. In this respect, the Board notes that in the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations that would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. In this case, the Veteran was afforded a VA examination for his hearing loss and tinnitus in March 2009 and an examination for his left eye in February 2009, with an addendum added in June 2009. As to the March 2009 audiological examination, audiometric testing at that time did not show a hearing loss disability for VA purposes in either ear. During his December 2012 Board hearing, the Veteran stated that his hearing acuity had worsened since the time of the March 2009 VA examination. While the Board recognizes that the Veteran, as a lay person, is not competent to diagnose a hearing loss disability as defined by 38 C.F.R. § 3.385 (2012), as such disability is diagnosed based on the mechanical application of hearing acuity at certain discrete frequencies. A lay person, however, certainly is competent to report symptoms of decreased hearing acuity, such as increased difficulty hearing conversations or the television. As to the Veteran's tinnitus, at the time of the March 2009 examination the Veteran indicated that he was unsure whether he experienced tinnitus in his right ear, left ear, or both ears. Furthermore, he was uncertain as to when the onset of his tinnitus occurred. During the December 2012 Board hearing, the Veteran clarified that the tinnitus was in his left ear only and that he had experienced intermittent tinnitus in that ear since service. As the examiner's opinions were based on the Veteran's representations at the time of his March 2009 examination and given his clarification as to several of the points raised during the examination and the suggestion of worsening hearing acuity since March 2009, the Board concludes that a new examination is appropriate. As to the Veteran's February 2009 VA eye examination, the examiner noted that the diagnosed optic neuropathy of the left eye had an undetermined etiology that "possibly" was related to blunt force trauma from a motor vehicle accident in service. In a June 2009 addendum, the examiner indicated that an opinion could not be rendered without resort to speculation in this case. In that regard, the Court has held that it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). Based on the foregoing, the Board concludes that an additional VA examination is required. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (finding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The RO/AMC should also take the opportunity to obtain VA treatment records from April 2009 to the present. 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. Obtain all medical records and hospitalization records pertinent to the Veteran's disabilities at issue from all appropriate VA facilities from April 2009 to the present. Any negative responses should be documented in the file and the Veteran must be provided with an opportunity to provide such medical records. 2. After the above medical records are obtained, to the extent available, schedule the Veteran for an appropriate VA examination for his claimed bilateral hearing loss disability and tinnitus. The claims file, including a copy of this remand, should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. After reviewing the file including the entirety of this remand, eliciting a history directly from the Veteran, and conducting a thorough physical examination, as well as any diagnostic studies deemed necessary, the examiner should offer an opinion as to whether the Veteran has a current bilateral hearing loss disability (for VA purposes) or left ear tinnitus disability, and if so whether any such disability had its onset during military service or is otherwise related to service. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. If the examiner determines that an opinion cannot be made without resort to mere speculation, then it should be clear in the examiner's remarks whether it cannot be determined from current medical knowledge that a specific in-service injury or disease can possibly cause the claimed disorder, or whether the actual cause is due to multiple potential causes. In other words, simply stating that an opinion cannot be provided without resort to mere speculation is not acceptable without a detailed reason as to why this is so. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. After the above medical records are obtained, to the extent available, schedule the Veteran for an appropriate VA examination for his claimed left eye disability. The claims file, including a copy of this remand, should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. After reviewing the file including the entirety of this remand, eliciting a history directly from the Veteran, and conducting a thorough physical examination, as well as any diagnostic studies deemed necessary, the examiner should offer an opinion as to whether any current left eye disability had its onset during military service or is otherwise related to service, to include as the result of the April 1953 motor vehicle accident. In reaching that decision, the examiner should consider the service treatment records documenting 20/20 uncorrected distance vision during the August 1952 entrance examination; the evidence of an April 1953 motor vehicle accident that resulted in multiple facial lacerations and chest pain; a July 1953 treatment record documenting decreased visual acuity in the left eye and an absolute scotoma in the lower half of the eye that "probably is result of hemorrhage into the superior part of left optic nerve or [] direct trauma to the left optic nerve" that had shown no changes in three months and was probably permanent; a November 1959 flight examination that showed uncorrected distance acuity in the left eye of 20/30 and corrected to 20/20; a subsequent November 1959 record documenting "eye trouble"; and an undated initial issuance of prescription eyeglasses to the Veteran. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. If the examiner determines that an opinion cannot be made without resort to mere speculation, then it should be clear in the examiner's remarks whether it cannot be determined from current medical knowledge that a specific in-service injury or disease can possibly cause the claimed disorder, or whether the actual cause is due to multiple potential causes. In other words, simply stating that an opinion cannot be provided without resort to mere speculation is not acceptable without a detailed reason as to why this is so. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. After the above is complete, readjudicate the Veteran's claims. If one or more of the claims remains denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ MICHAEL A. PAPPAS 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).