Citation Nr: 1318595	
Decision Date: 06/07/13    Archive Date: 06/11/13

DOCKET NO.  09-40 927	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for a low back disorder.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

John Kitlas, Counsel
INTRODUCTION

The Veteran served on active duty from February 1967 to January 1970.  Further, the record reflects he had additional service in the Reserves.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which, in pertinent part, denied the current appellate claims.

The Veteran provided testimony at a hearing before a Decision Review Officer (DRO) at the RO in May 2010.  A transcript of this hearing has been associated with the Veteran's VA claims folder.

For the reasons addressed in the REMAND portion of the decision below, the Board finds that further development is required with respect to the Veteran's low back disorder claim.  Accordingly, this claim is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.

As an additional matter, the Board notes that the Veteran also initiated appeals regarding the denial of service connection for tinnitus, a right shoulder disorder, and a right knee disorder.  Further, these issues were listed on the September 2009 Statement of the Case (SOC) that also addressed the hearing loss and low back claims.  However, on his October 2009 Substantive Appeal, the Veteran asserted that he only desired to continue his appeal regarding the hearing loss and low back claims.  Consequently, these are the only issues over which the Board currently has jurisdiction.  See 38 C.F.R. §§ 20.200, 20.202 (2012).


FINDINGS OF FACT

1.  The Veteran engaged in combat while on active duty.

2.  The Veteran does not have a hearing loss disability of the right ear as defined by VA regulations.

3.  The preponderance of the competent medical and other evidence of record is against a finding that the Veteran's hearing loss disability of the left ear was incurred in or otherwise the result of his active service, to include acoustic trauma as a result of his combat service.


CONCLUSION OF LAW

The criteria for a grant of service connection for bilateral hearing loss are not met.  38 U.S.C.A. §§ 101, 1110, 1131, 1154, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.303, 3.304, 3.385 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Preliminary Matters

The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  

As the Veteran's low back disorder claim is addressed in the REMAND portion of the decision below, the adjudication that follows only applies to the Veteran's hearing loss claim.

The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012).  The United States Court of Appeals for Veterans Claims (Court) has indicated that VCAA notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  VA must provide a claimant VCAA notice before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction.  Dingess/Hartman, supra; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In this case, the Veteran was sent pre-adjudication notice via letters dated in February 2008, May 2008, and August 2008, all of which were prior to the September 2008 rating decision that is the subject of this appeal.  These letters informed the Veteran of what was necessary to substantiate his current appellate claims, what information and evidence he must submit, what information and evidence will be obtained by VA, and the information and evidence used by VA to determine disability rating(s) and effective date(s).  In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence.  Accordingly, there is no further duty to notify.  In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice.  See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination).

In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied.  

The Board acknowledges that while service treatment records are on file for the Veteran's Reserve service, no service treatment records are on file regarding his February 1967 to January 1970 period of active duty as they appeared to have been lost.  (A formal finding of their unavailability was made in August 2008.)  In such situations VA has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule.  See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  However, the case law does not lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran.  See Russo v. Brown, 9 Vet. App. 46 (1996).  Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records.  See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (Wherein the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in government control which would have required VA to disprove a claimant's allegation of injury or disease). 

The Board also observes that various post-service medical records have been associated with the Veteran's VA claims folder.  Further, the Veteran has had the opportunity to present evidence and argument in support of his claims, to include at the May 2010 DRO hearing.  Nothing indicates he has identified the existence of any relevant evidence that has not been obtained or requested.  For example, he has not identified outstanding evidence showing either a hearing loss disability of the right ear as defined by 38 C.F.R. § 3.385, or which relates his current hearing loss disability of the left ear to his military service.  As part of his Substantive Appeal, the Veteran indicated that he did not want a hearing before the Board.

With respect to the aforementioned May 2010 DRO hearing, the Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the hearing, the DRO accurately noted the current appellate issues, and asked questions to clarify the Veteran's contentions and treatment history.  Although the DRO did not specifically note the bases of the prior determinations or the elements that were lacking to substantiate the Veteran's appellate claims, the Veteran, through his testimony and other statements of record, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims.  Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of the May 2010 DRO hearing.  As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. 3.103(c)(2) have been satisfied. 

The Board further notes that the Veteran was accorded a VA medical examination in August 2009 which included opinions that addressed the etiology of the current hearing loss disability of the left ear.  As these opinions were based upon both a medical evaluation of the Veteran, and an accurate understanding of his medical history based upon review of his VA claims folder, the Board finds they are supported by an adequate foundation.  No competent medical evidence is of record which specifically refutes the findings of the August 2009 VA examination, and the Veteran has not otherwise identified any prejudice therein.  Accordingly, the Board finds that this examination is adequate for resolution of this case.  

In view of the foregoing, the Board finds that the duty to assist the Veteran has been satisfied in this case.

The Board notes that it has thoroughly reviewed the record in conjunction with this case.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence).  Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims.  See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that 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).  

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. § 5107(b).  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.  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).  

Legal Criteria and Analysis

The Veteran essentially contends that he has hearing loss as a result of in-service acoustic trauma that occurred as result of combat, and has provided details regarding the circumstances thereof.  

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  

Active service includes any period of active duty for training (ACDUTRA) during which the individual was disabled from a disease or an injury incurred in the line of duty, or a period of inactive duty training during which the veteran was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training.  38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a).  Further, ACDUTRA includes full-time duty in the Armed Forces performed by the Reserves for training purposes.  38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c).  Inactive duty training includes duty, other than full-time duty, prescribed for the Reserves.  38 U.S.C.A. § 101(23)(A).  Reserves includes the National Guard.  38 U.S.C.A. § 101(26), (27).

Here, the record confirms that the Veteran engaged in combat while on active duty, as exemplified, in part, by the fact that he received the Combat Infantryman Badge.  Moreover, his account of in-service acoustic trauma as a result of combat was conceded by the RO.

The Board also notes that in cases where a veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable.  This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence.  If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service.  38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).  The Federal Circuit has held that in the case of a combat Veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury.  Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012).  To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury.  Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

Although there is no dispute regarding the Veteran's account of his in-service acoustic trauma as a result of combat, the Board notes that for the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  Further, the Court has indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  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 may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.  Hensley, 5 Vet. App. at 160.  

In short, competent medical evidence is required to determine whether one has a hearing loss disability for VA purposes, or evidence of chronic hearing loss pursuant to Hensley, supra.  Here, nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion.  Consequently, his contentions cannot constitute competent medical evidence.  38 C.F.R. § 3.159(a)(1).

The Board also reiterates that the service treatment records for the Veteran's February 1967 to January 1970 period of active duty are unavailable.  However, there are audiological evaluations conducted as part of Reserve examinations in December 1985, September 1989, October 1993, and September 1998, as well as the August 2009 VA audio examination.  Although there is evidence of hearing loss pursuant to Hensley, supra, for both ears, none of them show the Veteran has a hearing loss disability of the right ear as defined by 38 C.F.R. § 3.385.  For example, audiological evaluation conducted as part of the December 1985 Reserve enlistment examination evaluation revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
6000
RIGHT
15
20
15
10
0
25
LEFT
20
10
20
15
5
20

Audiological evaluation conducted as part of the September 1989 Reserve examination revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
6000
RIGHT
15
20
20
20
15
15
LEFT
25
20
20
20
20
20

Audiological evaluation conducted as part of the October 1993 Reserve examination revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
6000
RIGHT
20
20
20
20
20
20
LEFT
20
15
15
15
20
20

Audiological evaluation conducted as part of the September 1998 Reserve examination revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
6000
RIGHT
30
20
15
15
5
20
LEFT
30
25
20
25
10
25

Finally, the August 2009 VA audio examination revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
Average
RIGHT
20
20
25
30
35
28
LEFT
20
20
30
30
30
28

Speech recognition scores were 96 percent for both ears.

In sum, none of the aforementioned audiological evaluations of the right ear showed that auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz were 40 decibels or greater; or the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz were 26 decibels or greater; or a speech recognition score of less than 94 percent.  Consequently, the Board must find that the Veteran does not have a hearing loss disability of the right ear for VA purposes.

The Board acknowledges that the Court held in McLain v. Nicholson, 21 Vet. App. 319 (2007) that the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication.  In this case, however, the record does not reflect the Veteran has had a hearing loss disability of the right ear as defined by 38 C.F.R. § 3.385 at any time during the pendency of this case.  As such, at no time has he had a hearing loss disability of the right ear for VA purposes. 

Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  See 38 U.S.C. §§ 1110, 1131; and see Brammer v. Derwinski, 3 Vet. App. 223 (1992).  In Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997), it was observed that 38 U.S.C.A § 1131, as well as other relevant statutes, only permitted payment for disabilities existing on and after the date of application for such disorders.  The Federal Circuit observed that the structure of these statutes "provided strong evidence of congressional intent to restrict compensation to only presently existing conditions," and VA's interpretation of the law requiring a present disability for a grant of service connection was consistent with the statutory scheme.  Degmetich, 104 F.3d at 1332; and see Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding VA's interpretation of the provisions of 38 U.S.C.A § 1110 to require evidence of a present disability to be consistent with congressional intent); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (the law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a disability).  Simply put, in the absence of proof of present disability there can be no valid claim.  

Regarding the left ear, the Board notes that the August 2009 VA examination does show a hearing loss disability pursuant to 38 C.F.R. § 3.385.  None of the prior Reserve examination showed such a disability, although there was evidence of hearing loss pursuant to Hensley, supra, on the September 1989 and September 1998 examinations.  However, inasmuch as such a disability was first demonstrated years after service, the Board finds that competent medical evidence is required to determine whether such disability is related to active service to include the acknowledged acoustic trauma from combat.  See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (Affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.).  The Board has already determined the Veteran's contentions do not constitute competent medical evidence.

In this case, the only competent medical evidence of record to address the etiology of the Veteran's left ear hearing loss disability is that of the August 2009 VA examination, which is against the disability being directly related to service.  Specifically, the August 2009 VA audiologist stated that after review of service treatment records, personal interview and audiometric testing, it was the examiner's opinion that the Veteran's hearing loss and tinnitus were less likely as not a result of noise exposure during military service due to hearing within normal limited noted on audiograms after military service.  Additionally, a VA ears, nose and throat (ENT) examination report, also dated in August 2009, opined that audiometric testing done between 1985 and 1998 provided clear and convincing evidence that permanent or chronic hearing loss was not incurred as a result of any type of acoustic trauma or noise exposure.  The examiner stated that the only hearing loss shown was in 1998 and was 30 db levels recorded only at 500 Hertz, which would not be indicative of noise trauma, but could be the result of anything from excessive cerumen to a recent ear infection to low frequency ambient noise present while the testing was being done.  Although the Veteran did state that he had a 10 percent disability for hearing loss when he was discharged from active duty in 1970, and the examiner stated that he would take him at his word on that, subsequent audiometric testing provide clear and convincing evidence that permanent or chronic hearing loss was not present during the Veteran's period of active service.  Hence, it was the examiner's opinion that any current hearing loss and/or tinnitus would be less likely than not related to military service, specifically less likely than not related to military noise exposure/acoustic trauma.

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See Id. at 303-04.  The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See Id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  

Here, the VA examiners indicated familiarity with the Veteran's medical history based upon review of the VA claims folder.  Moreover, the Veteran's acknowledged in-service acoustic trauma from combat was noted, as well as the results of the audiological evaluations conducted as part of the Veteran's Reserve service.  The Board also observes that neither examiner provided opinions in equivocal or speculative language.  Further, both supported their opinions with stated rationale that referenced the documented medical findings regarding the Veteran's hearing.  

The Board notes that the Veteran has criticized the August 2009 VA examiners' opinions in this case.  For example, in a May 2013 written brief, his accredited representative criticized the use of the Reserve audiological evaluations to deny the claim.  Citing to Hensley, supra, the representative asserted that the Veteran could not be precluded from establishing service connection for the current hearing loss simply because he was not found to have a measurable hearing loss at the time of his separation from service.  The representative also cited to Peters v. Brown, 6 Vet. App. 540, 543 (1993), for the proposition that "absence of service medical records showing hearing difficulties was insufficient to overcome the veteran's testimony of exposure and medical evid4nce of a present hearing loss consistent with noise exposure."  Further, the representative asserted that the question is not whether the Veteran had an abnormal audiogram at the time of his discharge from active duty, but rather whether the acoustic trauma of combat, and the continued acoustic trauma of his Reserve service, was the cause of the current hearing loss, or in the alternative, whether the Reserve exposures aggravated the hearing loss.

In regard to the aforementioned assertions, the Board notes that VA, to include the August 2009 VA examination, does not dispute the Veteran's account of in-service acoustic trauma from combat.  Rather, the August 2009 VA examiners, particularly the ENT opinion, was that the results from the Reserve audiological evaluations demonstrated that the Veteran's hearing loss was not the type associated with acoustic trauma/noise exposure.  This opinion would also apply to any such exposure while on Reserve duty, although the Veteran does not appear to have specifically identified any such exposure during the Reserves.  In fact, the Veteran indicated on Reports of Medical History dated in December 1985, September 1989, October 1993, and September 1998 that he had not experienced hearing loss.

For these reasons, the Board finds that the preponderance of the competent medical and other evidence of record is against a finding that the Veteran's hearing loss disability of the left ear was incurred in or otherwise the result of his active service, to include acoustic trauma as a result of his combat service.

The Board acknowledges that certain evidentiary presumptions - such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence for certain diseases, which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service - are provided by law to assist veterans in establishing service connection for a disability or disabilities.  38 U.S.C.A. §§ 101, 1112; 38 C.F.R. § 3.304(b), 3.306, 3.307, 3.309.  For example, service connection may be established on a presumptive basis for organic diseases of the nervous system such as sensorineural hearing loss that are present to compensable degree within the first post-service year.  See 38 C.F.R. §§ 3.307, 3.309.  However, there was no evidence of a hearing loss disability of the left ear until August 2009, decades after his January 1970 separation from active duty.  With respect to his Reserve service, the advantages of these evidentiary presumptions do not extend to those who claim service connection based on a period of ACDUTRA or inactive duty training.  Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (Noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on ACDUTRA and had not established any service-connected disabilities from that period); McManaway v. West, 13 Vet. App. 60, 67 (1999) (Citing Paulson, 7 Vet. App. at 469-70, for the proposition that, 'if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim.').

No other basis for establishing service connection for hearing loss is demonstrated by the evidence of record.  

In view of the foregoing, the Board finds that the Veteran's claim of service connection for hearing loss must be denied.


ORDER

Service connection for bilateral hearing loss is denied.




REMAND

The Veteran has essentially contended that he developed a chronic low back disorder as a result of an in-service injury that occurred while engaged in combat, and has provided details regarding the circumstances thereof.  See DRO Hearing Transcript p. 4.  His account of this injury is found to be credible pursuant to 38 U.S.C.A. § 1154(b).  Further, his service treatment records from his Reserve service also show treatment for low back pain, to include in 2000 and 2001.  

The Board observes that the Veteran was accorded a VA spine examination in June 2010, at which he was diagnosed with spondylolisthesis of the lumbar spine; marked degenerative disc disease of the lumbar spine; and chronic pain secondary to degenerative disc disease of the lumbar spine.  However, in regard to the question of whether the current back problem was the result of a combat injury, the examiner stated that without treatment records from the military service it would be speculation on the part of the examiner to relate current back trouble to military service.

The Board acknowledges that an award of service connection may not be based on resort to speculation or remote possibility.  See 38 C.F.R. § 3.102 (By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility.); see also Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Obert v. Brown, 5 Vet. App. 30, 33 (1993); Bostain v. West, 11 Vet. App. 124, 127 (1998).  However, the Court has held that an examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement.  See Jones v. Shinseki, 23 Vet. App. 382 (2010).  In this case, it is not clear from the examiner's statement why an opinion could not be provided as to whether the current back disorder was or was not consistent with the Veteran's credible account of an in-service back injury while engaged in combat.  Therefore, the Board must find that the June 2010 VA examination is not adequate for resolution of this claim.  

Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  Therefore, a remand is required in order to accord the Veteran an adequate VA examination regarding his low back claim.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (When the medical evidence of record is insufficient, in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions.).  

Accordingly, the case is REMANDED for the following action:

1.  The AMC/RO should obtain the names and addresses of all medical care providers who have treated the Veteran for his back since June 2010.  After securing any necessary release, the AMC/RO should obtain those records not on file.

2.  The AMC/RO should notify the Veteran that he may submit lay statements from individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service back symptomatology.  The Veteran should be provided an appropriate amount of time to submit this lay evidence. 

3.  After obtaining any additional records to the extent possible, the Veteran should be afforded an examination to determine the current nature and etiology of his low back disorder.  The claims folder should be made available to the examiner for review before the examination.

For any chronic low back disorder found to be present, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that it was incurred in or otherwise the result of active service.  In making this determination, the examiner should be aware that the Veteran's account of an in-service back injury while engaged in combat is deemed to be credible.

A complete rationale for any opinion expressed must be provided.  If the examiner determines that an opinion cannot be provided without resort to speculation, it is essential that the examiner provide a rationale for such a conclusion, 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).

4.  After completing any additional development deemed necessary, the AMC/RO should readjudicate the issue on appeal in light of any additional evidence added to the records assembled for appellate review.  

If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental SOC (SSOC), which addresses all of the evidence obtained after the issuance of the last SSOC in July 2010, and provides an opportunity to respond.  The case should then be returned to the Board for further appellate consideration, if in order.  By this remand, the Board intimates no opinion as to any final outcome warranted.

The appellant has the right to submit additional evidence and argument on the matter 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 E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs