Citation Nr: 1311335 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 11-02 356 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his daughter ATTORNEY FOR THE BOARD E. Woodward Deutsch, Counsel INTRODUCTION The Veteran served on active duty from October 1957 to October 1959. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Houston, Texas, Department of Veterans Affairs (VA) Regional Office (RO), which denied the benefits sought on appeal. The Veteran and his daughter testified at an October 2012 videoconference hearing before the undersigned, who was designated to conduct that hearing pursuant to 38 U.S.C.A. § 7102(a). A transcript of the proceeding is associated with the claims file. At the hearing, the Veteran was granted a 60-day abeyance period for the submission of additional evidence to support his claims. That period of time has lapsed, and no additional evidence has been received. Hence, the claims will be considered on the basis of the current record. The record reflects that in November 2010 the Veteran filed claims of service connection for tingling sensation, bilateral feet, shaking in the right hand, aches in the bilateral hands and arms, and partial loss of vision. Although the record indicates that the Agency of Original Jurisdiction (AOJ) began development of these claims, there is no indication that they have been initially adjudicated. Therefore, since the Board does not have jurisdiction over these claims, they are referred to the AOJ for appropriate action. 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 AOJ via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND The Board has determined that before it can adjudicate the Veteran's claims for service connection for bilateral hearing loss and tinnitus, further development is needed, as described below. 38 C.F.R. § 19.9. A. VA Treatment Records Additional efforts are warranted to obtain outstanding VA treatment records. Only a handful of VA treatment records have been associated with the Veteran's paper claims file and Virtual VA efolder. Those records reflect that in March 2007, he underwent an initial audiological consultation that yielded a diagnosis of moderately severe to profound bilateral mixed hearing loss. The examining audiologist recommended that the Veteran undergo additional clinical testing to qualify for VA-prescribed hearing aids. He appears to have heeded those recommendations and sought additional audiological treatment through his local VA Medical Center in Houston, Texas. Indeed, the Veteran's representative reported at the October 2012 hearing that the Veteran was visiting that facility regularly on an outpatient basis. See Board Hearing Tr. at 5. He further indicated that the Veteran's VA treating providers were contemplating whether to perform surgery to treat his worsening ear problems. Id. In light of this evidence, the Board is now on notice of the existence of additional VA treatment records, dated since September 2007 (the date of the last VA treatment records that have been associated with the claims file and Virtual VA efolder), which are pertinent to the Veteran's hearing loss and tinnitus claims. Accordingly, those records should be obtained on remand. 38 C.F.R. § 3.159(c)(2) (2012); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that where VA medical treatment records are material to the issue on appeal and are not included within the claims file, a remand is necessary to acquire such VA records because VA is deemed to have constructive knowledge of certain documents which are generated by VA agents or employees). B. VA Examination In McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), the United States Court of Appeals for Veterans Claims (Court) made clear that VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. In this case, the record reflects that the Veteran has current diagnoses to support his claims for service connection. Specifically, he has been diagnosed with mixed conductive and sensorineural hearing loss and tinnitus, bilaterally. Accordingly, the Board finds that the first McLendon element (competent evidence of a current disability or persistent or recurrent disabling symptoms) has been met with respect to each of the Veteran's pending service-connection claims. Similarly, the Veteran has satisfied the remaining McLendon requirements through evidence that suggests, but does not conclusively establish, a causal link between each of the aforementioned disabilities, or recurrent symptoms, and his active service. Specifically, the Veteran has reported a history of in-service acoustic trauma arising from his exposure to weapon fires from the firing range and helicopter noise. He also has attested to other in-service noise exposure incurred while driving a diesel flatbed truck, unloading equipment, and working in a noisy warehouse in the course of his duties as an Army supply clerk. See Board Hearing Tr. at 2-3. Further, in May 2008 and June 2009, the Veteran reported that he had an ear infection in service. In June 2009, he indicated that the ear infection never cleared up and he would frequently experience dizziness and began experiencing hearing loss at that time. He indicated that he experienced a secretion from his ears, which he also continues to experience today. It is unclear from the Veteran's statements whether he sought treatment for these symptoms during service. However, even if the Veteran did seek treatment in service, an April 2008 record from the National Personnel Records Center indicates that the Veteran's service treatment records are unavailable and presumed destroyed in a 1973 fire at VA's records repository in St. Louis, Missouri. In such a situation, VA has a heightened duty to assist him in developing his claim. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). This duty includes a heightened obligation on the Board's part to explain its findings and conclusions, and carefully consider the benefit of the doubt rule. See Cromer v. Nicholson, 19 Vet. App. 215 (2005). Additionally, the Veteran has testified regarding his longstanding hearing problems, which have persisted since service and progressively worsened over time. See Board Hearing Tr. at 4-5. His account in this regard has been corroborated by his eldest daughter, who has described the negative effect of the Veteran's hearing difficulties on his ability to communicate with her and her sisters throughout their lives. See Board Hearing Tr. at 5. Further, a May 2008 statement from the Veteran's brother reports that he noticed the Veteran's hearing difficulties when he returned from service. As a lay person, the Veteran is capable of observing and therefore competent to report a history of significant noise exposure and symptoms of an ear infection during service. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). He also is competent to report the perceived date of onset of his hearing problems. Id. Similarly, his daughter and brother are competent to testify regarding communication difficulties and related hearing loss manifestations, which they have personally observed in the Veteran. For purposes of this remand, the Board also finds the Veteran's, his daughter's, and his brother's statements to be credible. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), whether bilateral hearing loss is related to in-service noise exposure or ear infection symptoms falls outside the realm of the common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (noting that lay persons are not competent to diagnose cancer). As such, whether the acoustic trauma or ear infection symptoms that the Veteran experienced in service is in any way related to his current hearing disabilities is a question that requires medical expertise to resolve. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the Veteran is competent to testify to the pain he has experienced since his [active service], he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Moreover, the Board observes that the need for an expert medical opinion is particularly great in this case, given that the Veteran has been diagnosed with a complex type of hearing loss, which features both sensorineural and conductive characteristics, and also has acknowledged the existence of an intercurrent injury (chronic ear disease that arose in the 1980s). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Furthermore, while mindful that the Veteran has presented an account of continuous hearing loss and tinnitus symptoms emanating from service, such a lay history of continuity of symptomatology is no longer sufficient to serve as a substitute for nexus with respect to disabilities that fall outside the ambit of 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a)). In this regard, the Veteran has been explicitly diagnosed with hearing loss that has both sensorineural and conductive characteristics. That is significant since, in light of Walker, only sensorineural hearing loss can be considered an organic disease of the nervous system for which the theory of continuity of symptomatology is still applicable. Hence, the lay statements of record are insufficient on a stand-alone basis to award the benefits sought on appeal. While insufficient to grant the Veteran's claims, however, the above lay assertions, in tandem with the other evidence of record, are enough to trigger the need for a VA etiological examination in support of those claims. McLendon, 20 Vet. App. at 81. Such an examination was previously conducted, which resulted in an unfavorable nexus opinion. Significantly, however, the examining VA clinician did not take into account the Veteran's complaints of hearing problems persisting since service and seemed to be unaware that the Veteran experienced an ear infection in service. Indeed, that examiner noted that the symptoms of hearing loss and tinnitus currently present had their onset in the 1980s, a finding that the Veteran now disputes. See Board Hearing Tr. at 5. Accordingly, the Board finds that the July 2009 VA examination is inadequate for rating purposes. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (stating that a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion); see also Nieves-Rodriguez, 22 Vet. App. at 301 (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two). Therefore, a new examination is necessary on remand. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes an examination, even if not required to do so, an adequate one must be produced). Accordingly, the case is REMANDED for the following actions: (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 any updated relevant VA treatment records from the Houston, Texas VA Medical Center dated since September 2007 that have not yet been associated with the claims file. 2. If any of the records requested in item 1 are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 3. After the development requested in items 1 and 2 is complete, schedule the Veteran for an examination to determine the nature and etiology of his currently diagnosed bilateral hearing loss and tinnitus. The claims folder should be made available to and be reviewed by the examiner in conjunction with the examination. After conducting an examination of the Veteran and performing all clinically-indicated diagnostic testing and any necessary consultations, the examiner should address the following questions: (A) Is it at least as likely as not (50 percent probability or greater) that the Veteran's bilateral hearing loss is related to any incident of military service, including in-service noise exposure or ear infection symptoms? (B) Is it at least as likely as not (50 percent probability or greater) that the Veteran's tinnitus is related to any incident of military service, including in-service noise exposure or ear infection symptoms? For purposes of this remand, the examiner should accept as true the Veteran's statements to the effect that he experienced noise exposure in service, had symptoms of an ear infection in service, and has experienced chronic hearing difficulties since service. A report of the examination should be prepared and associated with the Veteran's VA claims file. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If any of the benefits sought on appeal remain denied, in whole or in part, provide the Veteran and his representative with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond. Then return the case to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the 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 for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ M. SORISIO Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).