Citation Nr: 1317062 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 09-44 293 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an initial compensable evaluation for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active service from September 1967 to March 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of June 2008, which granted service connection for bilateral hearing loss, but assigned a noncompensable evaluation, and denied service connection for tinnitus. 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 Service connection for bilateral hearing loss was granted in a June 2008 rating decision, which assigned an initial noncompensable evaluation, effective in October 2007. The only medical evidence concerning the severity of the condition during the appeal period consists of a June 2008 audiology examination. In his notice of disagreement and subsequent statements he has identified two VA evaluations for hearing loss during the appeal period; these identified records must be obtained. Additionally, while the Veteran has not explicitly stated that his bilateral hearing loss has worsened since that time, 5 years have elapsed since that examination, and there is no indication that the condition is static; therefore, the Board finds that a current examination should be obtained. With respect to the audiology examination, the audiologist must describe the functional effects caused by a hearing disability in the final report. Martinak v. Nicholson, 21 Vet. App. 447, 455-456 (2007). The issue of service connection for tinnitus has not been developed for appellate consideration, but in an informal hearing presentation dated in May 2013, the Veteran's representative argued that the Veteran's November 2008 notice of disagreement should be construed as also including the issue of service connection for tinnitus. Where a notice of disagreement has been filed with regard to an issue, and no statement of the case has been issued, the appropriate Board action is to remand the issue to the RO for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). A notice of disagreement consists of a written communication from a claimant expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result. 38 C.F.R. § 20.201 (2012). Special wording is not required. Id. Moreover, the Board has an obligation to liberally construe the appeal filings of a claimant to discern all issues raised in the record. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). The representative argues that as a lay person, the Veteran does not have a clear understanding of the technical differences between hearing loss and tinnitus. He points out that although the Veteran has referred to his disability as "hearing loss" throughout his appeal, his contentions have solely dealt with the issue of service connection. Some support for the theory is found in a single-judge Memorandum Decision issued by the Court, which held that the Board erred when it concluded that the appellant's reopened claim for "hearing" did not include a claim to reopen his previously denied claim for tinnitus. Radu v. Shinseki, No. 08-2692, 2010 WL 2706225 at 6 (Vet. App. July 8, 2010). While the Board recognizes that such single judge decisions carry no precedential weight, they may be relied upon for any persuasiveness or reasoning they contain. See Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992). In the context of a claim, a claimant is not required to identify a precise medical diagnosis or the medical cause of his condition; rather, he sufficiently files a claim for benefits "by referring to a body part or system that is disabled or by describing symptoms of the disability." Brokowski v. Shinseki, 23 Vet.App. 79, 86 (2009). This is because a claimant is not expected to have medical expertise and generally "is only competent to identify and explain the symptoms that he observes and experiences." Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009). Tinnitus is, by definition, a noise in the ears, such as ringing, buzzing, roaring, or clicking, usually subjective in type. Dorland's Illustrated Medical Dictionary, 1914 (30th ed. 2003). Hearing loss (deafness) is defined as "lack or significant deficiency of the sense of hearing." Id., at 476. Thus, both of these interfere with the Veteran's functional ability to hear. In his original compensation claim received in January 2002, the Veteran claimed service connection for "loss of hearing." The RO denied service connection for "bilateral hearing loss" in a September 2002 rating decision, which became final. See 38 C.F.R. § 3.156. In his October 2007 claim, the Veteran stated he was filing a "new claim for service connection for bilateral hearing loss and bilateral tinnitus," which he felt resulted from noise exposure during service. This suggests he was aware of a distinction between hearing loss and tinnitus. However, the Board also observes that tinnitus is not a typical layman's term, and, therefore, he may have simply signed a statement which had been typed by someone else, such as his representative, without being aware of the precise distinction. The notice letter sent by the RO in January 2008 informed the Veteran that VA was working on his request to reopen a claim for service connection for bilateral hearing loss and bilateral tinnitus. However, the Board notes that the previous final decision, in September 2002, had only addressed the issue of service connection for bilateral hearing loss. The January 2008 letter stated, in the explanation of the prior denial, that he had previously been denied service connection for bilateral hearing loss, but at no point did the RO state that the claim for service connection for tinnitus was an entirely new claim, and, as such, did not require new and material evidence to reopen. This could easily have led the Veteran to assume the two were essentially a single issue. Moreover, although the notice of the June 2008 rating decision, provided in August 2008, clearly delineated the two claims, it is indisputable that the Veteran, in his notice of disagreement and all other documents submitted in connection with this appeal, has confined his actual arguments to the concept of service connection, i.e., that his hearing loss was caused by military noise exposure. This, alone, suggests some confusion on his part as to the proper identification of the issues. In this regard, there is nothing in the claims folder that suggests that the term "tinnitus" has ever been explained to the Veteran. Given these factors, the Veteran's notice of disagreement received in October 2008 satisfies the requirements for a notice of disagreement with the June 2008 decision. As such, he must be furnished a statement of the case. Moreover, although the issue, if denied, will not be returned to the Board unless he perfects an appeal, nevertheless, to conserve VA resources, the examination scheduled to evaluate the service-connected hearing loss should also address whether the Veteran has tinnitus of service origin. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all VA medical records, or private medical records the Veteran may identify, concerning the Veteran's treatment and/or evaluations for hearing loss and/or tinnitus, to include records from the VA Northern Indiana Health Care System-Fort Wayne Campus, dated from October 2007 to the present, to specifically include records of: * Audiology clinic appointment on July 18, 2008; * Appointment with Dr. G. on October 6, 2008. If such records are unavailable, the RO must indicate the steps that were taken to obtain the records and afford the Veteran and his representative an opportunity to provide them. 2. Schedule the Veteran for an appropriate VA examination, to determine, first, the current manifestations and severity of service-connected bilateral hearing loss. In addition to all indicated audiometric studies, the examiner must describe the functional impairment caused by the hearing disability in his or her final report. The examiner must also provide an opinion as to whether the Veteran has, at the time of the examination or on a recurrent basis, tinnitus, and, if so, whether such condition is at least as likely as not (i.e., 50 percent or greater probability) due to in-service noise exposure. The report must reflect that the term "tinnitus" has been explained to the Veteran. The claims file must be made available to the examiner for review in connection with the examination. A rationale for all opinions provided must be included. 3. Thereafter, readjudicate the issue of service connection for tinnitus; if the claim remains denied, furnish a statement of the case with regard to the claim of entitlement to service connection for tinnitus to the Veteran and his representative. This issue should not be certified or returned to the Board unless a timely substantive appeal is received. 4. Readjudicate the issue of entitlement to an initial compensable rating for bilateral hearing loss. If the claim remains denied, the Veteran and his representative should be provided with a supplemental statement of the case, and 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). [Continued on Next Page] 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). _________________________________________________ JONATHAN B. KRAMER 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).