Citation Nr: 1307348 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 09-04 305 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a left knee disability. 4. Entitlement to service connection for a right knee disability. REPRESENTATION The Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to September 1969, to include combat service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In May 2011, the Veteran did not appear at a hearing before the Board. Without good cause shown, the request for the hearing is deemed withdrawn. 38 C.F.R. § 20.704(d). In August 2011 and August 2012, the Board remanded the case to the RO for additional development. The issues of service connection for left ear hearing loss, service connection for a left knee disability and service connection for a right knee disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT There is competent evidence that the Veteran was exposed to loud noise in service and the Veteran's current tinnitus had its onset from an injury, disease, or event of active service origin. CONCLUSION OF LAW Tinnitus was incurred in by active service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented, in part, at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As the claim of service connection for tinnitus is resolved in the Veteran's favor, the only matter disposed of in this decision, further discussion here of compliance with the VCAA with regard to the claim is not necessary. Service Connection for Tinnitus Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by showing inception or aggravation during service. 38 C.F.R. § 3.303(a). As tinnitus is not listed as one of the chronic diseases in 38 C.F.R. § 3.309, the provisions for service connection for chronic disease under 38 C.F.R. § 3.303(b) do not apply. See Walker v. Shinseki, No. 2011-7184 (Fed. Cir. Feb. 21, 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau, v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). The Veteran asserts that he has bilateral hearing loss and bilateral tinnitus as a result of in-service noise exposure. His DD-214 establishes that his MOS was as a mortar man and he was awarded the Vietnam Service Medal and the Combat Action Ribbon. Other personnel records in the file establish that the Veteran participated in several combat operations. The service treatment records do not show any complaint, clinical finding, treatment, or diagnosis of hearing loss or tinnitus. As his entrance examination in July 1967, his hearing was normal for VA purposes. See 38 C.F.R. § 3.385. At separation in September 1969, no audiogram was conducted, but instead a whisper voice test showed the Veteran had normal hearing at 15/15 bilaterally. In May 2007, the Veteran was provided a VA examination. He stated that he served as a mortar man in Vietnam for a year. After service, he has worked as a welder, electrician, truck driver, and as a police officer. As to tinnitus, the Veteran reported the onset of tinnitus while serving in Vietnam. The tinnitus is mainly present in his right ear in a quiet environment. He described the tinnitus as a seashell sound that interferes with speech understanding. He denied any recreational noise exposure. The examiner did not offer an opinion as to the relationship between the Veteran's current tinnitus and service. In 2008, the Veteran's hearing was evaluated at VAMC and the results were interpreted as showing a mild sensorineural hearing loss at 1,000 Hertz with a reverse cookie bite configuration. The left ear had a mild to moderate sensorineural hearing loss also in a reverse cookie bite configuration at 1,000 and 4,000 Hertz. In a VA examination in November 2011, the Veteran reported recurrent tinnitus that made it difficult to hear. The examiner stated that the hearing difficulty was attributable to hearing loss, not tinnitus. The examiner did not offer an opinion as to the relationship between the Veteran's current tinnitus and service, but observed no report of tinnitus was found in the service treatment records. In the most recent VA examination in November 2012, the Veteran reported he has had tinnitus ever since his military service. He reported recurrent tinnitus that made it difficult to hear. The examiner concluded that the Veteran's current tinnitus was less likely than not related to service as there was no report of tinnitus in the service treatment records. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the claim must be granted. Tinnitus is a condition under case law, where lay observation has been found to be competent as to the presence of the disability, that is, tinnitus is capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002) (On the question of whether the veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent- "ringing in the ears is capable of lay observation"). See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness). The Board finds that the Veteran is competent to describe ringing in his ears and his testimony is credible that tinnitus began in service. Thus, the evidence establishes that the Veteran currently has tinnitus. The remaining question is whether service connection may be granted when the disability is first diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disabilities were incurred in service. 38 C.F.R. § 3.303(d). As noted the Board also finds the Veteran's statements and testimony are credible, that is, the statements and testimony tend to prove a fact, that is, he noticed that tinnitus began in service. Moreover, the Board finds the Veteran's report of having experienced tinnitus since separation from service to be credible as there is no contradictory evidence in the record. The Veteran's competent and credible statements and testimony establishes the in-service incurrence of an injury, disease, or event (noise exposure), resulting in tinnitus. While service treatment records reflect no reports of tinnitus or ringing in the ears, there is no indication in these records, or any post-service treatment records, that the Veteran ever denied tinnitus or a history of tinnitus, or that the Veteran gave any history of tinnitus inconsistent with his written statements submitted in this claim. As the Veteran's lay statement is competent and credible with regard to noise exposure in service and in describing tinnitus in service and since service, and with evidence of current disability and evidence of a relationship between the current disability and noise exposure in service on the basis of continuity, all the elements of service connection have been met and service connection is established. See Buchanan v. Nicholson, 451 F. 3d 1331, 1335 (Fed. Cir. 2006) (If lay evidence presented by the veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence). The Board acknowledges that the opinion of the VA examiner in November 2012 is unfavorable, but it is based upon the lack of any documentation in the service treatment records. It appears that the VA examiner relied on the absence of medical evidence to corroborate tinnitus during a period of active duty, which under the circumstances of the case, has minimal probative value as the Board finds that the Veteran is competent and credible to describe tinnitus during a period of active duty and since service. Therefore, the evidence also proves a relationship between service and the current tinnitus, that is, the statements and testimony establishes the in-service incurrence of an injury, disease, or event (noise exposure)that in the Veteran's current tinnitus. Accordingly, resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's tinnitus began in service, and the claim for service connection for tinnitus must be granted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). ORDER Entitlement to service connection for tinnitus is granted. REMAND As noted, in August 2011, the Board remanded the case to the RO for additional development. Unfortunately, for the reasons discussed below, there has not been substantial compliance with the directives of the August 2011 remand. In the case of Stegall v. West, 11 Vet. App. 268 (1998), the Court held that a remand by the Board imposes upon the Secretary of the VA a duty to ensure compliance with the terms of the remand. It was further held that where the remand orders of the Board are not complied with, the Board errs in failing to insure compliance. Id. In the remand, the Board directed the RO to obtain all VA medical records not already in the file including all treatment records compiled since February 2008. The RO has complied with that portion of the remand. As to the claim of service connection for left ear hearing loss, VA's laws and regulations do not specifically require complaints of or treatment for hearing loss or tinnitus during service in order to establish service connection. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Board thus directed a new VA audiological examination because the VA examiner in May 2007 stated an opinion as to the relationship between hearing loss of the left ear, tinnitus and service could not be made without speculation. A second examination occurred in November 2011 (with an addendum in December 2011) but once again, the audiologist stated that an opinion could not be reached without speculation. Upon the latest remand in August 2012, the Veteran was provided a VA examination but the examiner repeated the same conclusion that an opinion on the relationship between the left ear hearing loss and service would be speculative. In this regard, in Jones v. Shinseki, 23 Vet. App. 382 (2010), the Court of Appeals for Veterans Claims (Court) held that the Board may not accept an opinion by a VA examiner that an opinion cannot be reached without resorting to speculation when it is unclear whether the limits of medical knowledge had been exhausted or instead further information to assist in making the determination (e.g., additional records and/or diagnostic studies) or other procurable and assembled data is required that might reasonably illuminate the medical analysis. The Court further indicated there must be some assurance that VA exhausted all due diligence in seeking relevant medical information that may have bearing on the requested opinion, and the examiner must explain the basis for such an opinion that he cannot comment conclusively. The Court recognized, however, there will be times when this requested opinion simply cannot be provided, such as when it cannot be determined from current medical knowledge that a specific inservice injury or disease can possibly cause the claimed condition or that the actual cause cannot be selected from multiple potential causes. The Court held that when the record leaves the issue in doubt, it is the Board's duty to remand for further development. In this case, it is not clear from the opinions from the May 2007, November 2011, and November 2012 VA examinations whether additional evidence would be necessary in order for an opinion to be non-speculative. If so, that evidence should be identified and attempts made to obtain it. Otherwise, the examiner must state whether the limits of medical knowledge had been exhausted or that the actual cause cannot be selected from multiple potential causes. Therefore, the Board finds that a remand is once again required to obtain this missing information. See 38 U.S.C.A. § 5103A (d) (West 2002); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As to the claims of service connection for disabilities of the left knee and the right knee, the Veteran was diagnosed in service with Osgood-Schlatter's disease at least in the left knee, which was treated conservatively. The remand in August 2011 directed the Veteran be afforded a VA examination to determine whether the Veteran's current knee disabilities are related to service. The examiner was specifically asked to comment on an internet article in the file asserting that there is a relationship between Osgood-Schlatter's disease and later degenerative changes and other disabilities of the knees. In the report, the examiner did not address the article but reached the conclusion that there is no relationship between Osgood-Schlatter's disease and the Veteran's degenerative changes that developed later in life. The Board therefore remanded the issue of service connection for the knees requesting that the Veteran be examined and that the examiner should comment on the internet article regarding Osgood-Schlatter's disease and later degenerative changes. The Veteran was examined in November 2012. While the examiner discussed various known complications of Osgood-Schlatter's disease, the examiner does not appear to discuss osteoarthritis or the internet article assertion that Osgood-Schlatter's disease causes degenerative changes in the bones. Again, a remand is necessary to address the relationship between the Veteran's current diagnosis and symptoms and the Osgood-Schlatter's disease shown in service. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran a VA audiology examination for the claims of service connection for the left ear. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. The rationale for all opinions should be provided. In the examination, the VA examiner must interview the Veteran in detail as to his service noise exposure, the onset and subsequent history of symptoms, and irrespective of the adequacy of the whisper test, offer an opinion as to whether the Veteran's current left ear hearing loss at least as likely as not causally and etiologically related to service, considering the evidence, accepted medical principles pertaining to the Veteran's lay history, manifestation, clinical course, and the character of the disability found. If the examiner determines the current audiogram demonstrates hearing loss in the left ear but does not demonstrate a typical pattern for sensorineural hearing loss, the examiner is asked to explain what facts or test results support that conclusion and how such a fact relates to whether the Veteran has a hearing loss related to service. If the examiner cannot reach an opinion, the examiner should explain if the reason that the opinion cannot be provided is because the limits of medical knowledge has been exhausted or, instead, because further information to assist in making this determination (e.g., additional records and/or diagnostic studies) or other procurable and assembled data is required. If the examiner has determined that specific evidence is missing that is needed to enable the examiner reach an opinion, the examiner should list each fact or evidence and explain why it is needed to form a valid opinion. If additional evidence is identified by the examiner, the RO should attempt to obtain that evidence and readjudicate the claim, including obtaining another medical opinion if necessary. 2. Arrange for the same examiner for the November 2012 knee examination, or if unavailable, to have another competent VA examiner to review the file. The claims file should be made available to the examiner in conjunction with the opinion and/or examination. If the examiner believes it is necessary, provide a VA examination and all testing should be conducted. A complete rationale must be provided for any opinion offered. The examiner is asked to specifically address the internet article in the file asserting that there is a relationship between Osgood-Schlatter's disease and later degenerative changes and other disabilities of the knees. Furthermore, the examiner should specifically state whether the Veteran's current osteoarthritis in either knee at least as likely as not causally and etiologically related to the Osgood Schlatter's disease noted in service, considering the evidence, accepted medical principles pertaining to the history, manifestation, clinical course, and the character of the disability found. 3. After the development requested is completed, readjudicate the claims for service connection for left ear hearing loss, service connection for a left knee disability, and service connection for a right knee disability. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and a reasonable period to respond, and then return the case to the Board. 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). 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). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs