Citation Nr: 1319488	
Decision Date: 06/17/13    Archive Date: 06/27/13

DOCKET NO.  12-29 781	)	DATE
	)
	)

Received from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUES

1.  Entitlement to service connection for hearing loss.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service connection for post-laminectomy syndrome/"failed back" to include nerve pain, muscle spasms, and leg numbness (referred to hereinafter as "back disability").


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

S. Becker, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Air Force from September 1979 to August 1983.

This matter comes before the Board of Veterans' Appeals (Board) from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York.  Service connection for hearing loss, for tinnitus, and for a back disability was denied therein.  The Veteran appealed each of these determinations.

Subsequently, jurisdiction was transferred to the RO in Buffalo, New York.  The Veteran testified regarding this matter before the undersigned Veterans Law Judge at a hearing at the RO in May 2013.  He contemporaneously submitted additional evidence pertinent to his claimed back disability.  It may be considered by the Board in the first instance because a statement waiving initial review by the agency of original jurisdiction (AOJ), which in this case is the RO, also was submitted by him.  38 C.F.R. § 20.1304(c).

Review of the Veteran's claims file in addition to his Virtual VA "eFolder" reveals that the hearing loss and tinnitus issues comprising this matter are ripe for adjudication.  Such review further reveals that the back disability issue is not ripe for adjudication.  It is addressed below in the REMAND section, and therefore is REMANDED to the RO via the AMC in Washington, DC.  VA will notify the Veteran if further action is required on his part with respect to this issue.  

Please note that this case has been advanced on the Board's docket.  38 U.S.C.A. § 7107(a)(2); 38 C.F.R. § 20.900(c).


FINDINGS OF FACT

1.  The Veteran currently has hearing loss, but it has not been established as related to his service in any manner.

2.  The Veteran currently has tinnitus, but it has not been established as related to his service in any manner.


CONCLUSIONS OF LAW

1.  The criteria for establishing service connection for hearing loss have not been met.  38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1153, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2012).

2.  The criteria for establishing service connection for tinnitus have not been met.  38 U.S.C.A. §§ 1131, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

VA has a duty of notification regarding a claim for VA benefits.  38 U.S.C.A. §§ 5103 (West 2002); 38 C.F.R. § 3.159 (2012).  VA must notify the claimant and his representative, if any, prior to initial adjudication by the AOJ of any information and any evidence not of record that is necessary to substantiate the claim, that VA will seek to obtain, and that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Notification that an evaluation and an effective date will be assigned if service connection is granted for a disability also must be included.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (overturning Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007)); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  None is found by the Board.  Via letters dated in July 2010 and May 2011, the Veteran and his representative were notified of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence.  He also was notified of how VA determines an evaluation and effective date if service connection for a disability is awarded.  It follows that the required notification was provided prior to the initial adjudication by the RO/AOJ in the October 2011 rating decision.

In addition to the duty to notify, VA has a duty to assist with respect to a claim for VA benefits.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  VA is required to aid the claimant in the procurement of relevant records.  38 U.S.C.A. § 5103A(b-c); 38 C.F.R. § 3.159(c)(1-3).  VA also is required to provide a medical examination and/or obtain a medical opinion when necessary.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).

Service treatment records have been obtained by VA as well as submitted by the Veteran.  Recent VA treatment records also have been obtained by VA, but they are not pertinent.  No earlier VA treatment records or private treatment records have been identified by the Veteran as pertinent.  Indeed, the Veteran testified at the May 2013 hearing that he has never sought treatment for hearing loss or tinnitus.  He further testified that, although his hearing was checked during physicals performed by various employers, his attempts to procure records thereof all have been unsuccessful.  A VA audiological examination was conducted in November 2010.  The examiner provided a diagnosis after reviewing the claims file, interviewing the Veteran, and undertaking an assessment of him.  The examiner also opined as to whether or not each diagnosis is related to the Veteran's service.  In sum, sufficient detail was provided so that this decision is fully informed.  The examination complete with opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303 (2007).

Of additional note, the individual presiding over a hearing must fully explain the issues and suggest the submission of evidence that may have been overlooked.  38 C.F.R. § 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010).  The undersigned identified hearing loss and tinnitus as service connection issues at the outset of the May 2013 hearing.  They were explained by the undersigned in that information was elicited from the Veteran concerning the onset of his hearing loss and tinnitus and why he believes they are attributable to his service.  Potential sources of evidence were referenced by the undersigned, as noted above.  The Veteran's representative did not attend or contribute to the hearing.  However, the Veteran agreed in advance to proceed alone.

Neither the Veteran nor his representative has identified any further development necessary for a fair adjudication of the claims decided herein that has not been completed.  The record also does not indicate any further development.  Therefore, the Board finds that no further notice or assistance is required and that VA's duties to notify and to assist have been satisfied.  Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Adjudication thus may proceed without prejudice to the Veteran.  Bernard v. Brown, 4 Vet. App. 384 (1993).

II.  Service Connection

Service connection means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred in service, or if preexisting service, was aggravated therein.  38 C.F.R. § 3.303(a); 38 U.S.C.A. § 1131.  To establish service connection, there generally must be (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus between the current disability and the in-service disease or injury.  Hickson v. West, 12 Vet. App. 247 (1999); Barr, 21 Vet. App. at 303.  Service connection also may be established for any disease diagnosed after discharge when the evidence shows it was incurred in service.  38 C.F.R. § 3.303(d).  

Sensorineural hearing, as it is an organic disease of the nervous system, is a chronic disease.  38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a).  For chronic diseases, service connection may be established through chronicity or continuity of symptomatology.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  A chronic disease during service is shown when there is a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time.  38 C.F.R. § 3.303(b).  Merely isolated findings are insufficient, as is a diagnosis including the word chronic.  Id.  Subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected unless clearly attributable to intercurrent causes.  Id.; Barr, 21 Vet. App. at 303.  Continuity of symptomatology after service is required if the disease is noted during service but is not chronic, or where a determination that it is chronic may legitimately be questioned.  38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997).

If certain requirements are met, service connection is presumed for chronic diseases.  38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309.  The veteran must have served 90 days or more either during a period of war or after December 31, 1946.  38 U.S.C.A. § 1112(a); 38 C.F.R. § 3.307(a)(1).  Manifestation of the chronic disease, though not necessarily diagnosis, also must have been to a compensable degree within one year from the date of separation from service.  38 U.S.C.A. § 1112(a)(1); 38 C.F.R. §§ 3.307(a)(2-3), (c).  Affirmative evidence rebutting in-service incurrence or aggravation of a chronic disease must be taken into consideration even if the aforementioned requirements are met.  38 U.S.C.A. §§ 1113, 1153; 38 C.F.R. §§ 3.307(d), 3.309(a).

Normal hearing is from 0 to 20 decibels.  Hensley v. Brown, 5 Vet. App. 155 (1993).  Impaired hearing is considered a disability for VA purposes when the pure tone threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater, the pure tone thresholds for at least 3 of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater, or speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  The absence of hearing loss arising to the level of a disability in service is not fatal to a service connection claim.  Ledford v. Derwinski, 3 Vet. App. 87 (1992).  Indeed, current hearing loss arising to the level of a disability and a medically sound basis for attributing it to service is sufficient.  Hensley, 5 Vet. App. at 157.

The Board must identify the evidence it finds to be persuasive and unpersuasive and explain why any favorable evidence is unpersuasive.  Gabrielson v. Brown, 7 Vet. App. 36 (1994), Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Therefore, an assessment of the probative value of the lay evidence in addition to the medical evidence is required.  A lay person is competent to relate observations or that which is within his personal knowledge.  Layno v. Brown, 6 Vet. App. 465 (1994).  Competent lay testimony or statements may be discounted in light of inherent characteristics and its relationship to other evidence.  Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997).  Credibility factors therefore include interest, self-interest, bias, inconsistency, facial implausibility, bad character, malingering, desire for monetary gain, and witness demeanor.  Pond v. West, 12 Vet. App. 341 (1999); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995); Cartright v. Derwinski, 2 Vet. App. 24 (1991).  "[T]he Board cannot determine that lay testimony or a lay statement lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  However, the lack of such evidence along with other factors may lead to the determination that the lay testimony or statement is not credible.

When there is an approximate balance of positive and negative evidence, any reasonable doubt is resolved in favor of the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49.  The claimant thus prevails when the evidence supports the claim or is in relative equipoise but does not prevail when the preponderance of the evidence is against the claim.

Only the most salient and relevant evidence is discussed below although all the evidence has been reviewed, as is required.  Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000).  The Board finds that service connection for hearing loss and for tinnitus is not warranted.  All necessary requirements for establishing entitlement to this benefit are not met for either disability.

There can be no valid claim if there is no current disability.  Brammer v. Derwinski, 3 Vet. App. 223 (1992).  A current disability exists when there is a disability at the time a claim is filed or at any time during the pendency of the claim.  McClain v. Nicholson, 21 Vet. App. 319 (2007).  The Veteran filed his claim in May 2010.  He was diagnosed with bilateral sensorineural hearing loss at the November 2010 VA audiological examination.  While his speech recognition score was above 94 percent and while his pure tone threshold for at least 3 frequencies between 500 and 4000 Hertz was not 26 decibels or greater in each ear, his pure tone threshold for both ears was 40 decibels at 4000 Hertz.  It follows that his bilateral sensorineural hearing loss arises to the level of a disability for VA purposes.  The Veteran also was diagnosed with tinnitus at the November 2010 VA audiological examination based on his report of such.  He is a layperson because there is no indication that he possesses medical expertise.  A lay person is competent to diagnose a disability when, among other things, the lay person is competent to identify it.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Tinnitus is a condition that a layperson is competent to identify.  Charles v. Principi, 16 Vet. App. 370 (2002).  It is within the Veteran's personal knowledge.  His report of tinnitus is credible as well as competent.  There indeed is no apparent reason to doubt him.  In sum, that the Veteran currently has hearing loss and tinnitus disabilities is undisputed.

Regarding the in-service incurrence or aggravation of a disease, service treatment records document the following.  The Veteran's hearing, as measured with pure tone thresholds, was normal at all frequencies between 500 and 4000 Hertz at his January 1979 entrance examination.  He did not complain of or receive treatment for any audiological problems at any point once his service began.  Neither hearing loss nor tinnitus was diagnosed.  The Veteran elected in May 1983 not to undergo a separation examination.  His "nonelection" was approved by a superior that same month.  He has contended during the pendency of this claim, to include in a statement and via telephone, that he had a separation examination in July 1983.  However, this is contrary to the aforementioned.  It also is contrary to the July 1983 service treatment records he provided in support of his contention.  They show only that he was seen related to his worry about asbestos exposure.  The Veteran thus is competent but not credible with respect to his contention.

Acknowledgement is given to the Veteran's May 2013 statement and testimony that he had both hearing loss and tinnitus during service.  He is competent to so recount because both would have been within his personal knowledge.  Yet he is not credible.  While it is facially plausible that an airman such as the Veteran would experience in-service hearing loss and tinnitus, this is inconsistent with the contemporaneous service treatment records.  A lack of notation of symptoms where such notation would normally be expected may be considered as evidence that the symptoms did not exist.  Buczynski v. Shinseki, 24 Vet. App. 221 (2011).  It is unlikely that the Veteran would not have complained of or sought treatment during service and would have declined a separation examination if he had been experiencing hearing loss or tinnitus.  Indeed, service treatment records reveal his complaints and treatment for other conditions.  They even reveal that he was seen over concern for asbestos exposure.  The Veteran did not hesitate to seek medical attention, in other words.  His service treatment records, since they are contemporaneous, additionally are more probative than his in-service medical history reported following service.  Curry v. Brown, 7 Vet. App. 59 (1994).  Recall, with time, indeed becomes susceptible to inaccuracy.  Finally, the Veteran's statement and testimony partially is inconsistent with a previous indication.  He did not provide any onset of his hearing loss at the November 2010 VA audiological examination.  He was unable to provide a precise onset for his tinnitus, noting only that it had been present for years.

Of further note is the timing involved here.  As stated above, the Veteran filed the instant claim in May 2010.  This equates to him waiting almost 27 years after his separation from service before filing.  Such delay weighs against his claim.  Shaw v. Principi, 3 Vet. App. 365 (1992).  It cannot be ignored, just as the Veteran's self-interest cannot be ignored.  If his lay statement and testimony that he had hearing loss and tinnitus during service is found to be both competent and credible, it is more likely that service connection will be granted.  Such a grant potentially could result in his receipt of VA compensation benefits.  The Veteran's strong desire for monetary gain is notable.  He has indicated that neither he nor his spouse is working and that their financial situation is bleak.

In sum, it has not been established that the Veteran manifested any hearing loss or tinnitus during service.  It follows that neither sensorineural hearing loss nor tinnitus (although tinnitus is not an organic disease of the nervous system) was chronic or even noted during service.  Service connection accordingly cannot be awarded on the basis of chronicity or continuity of symptomatology of a chronic disease.

Service connection also cannot be presumed for a chronic disease.  The Veteran undisputedly served more than 90 days during peace after December 31, 1946.  His service indeed spanned almost four years during the late 1970's and early 1980's.  He contends in his May 2013 statement and testimony that he had hearing loss and tinnitus during his first post-service year.  Although he is competent to so recount, as set forth above, he once again is not credible.  That there is a lack of contemporaneous evidence, in that no treatment records dated between August 1983 and August 1984 are available, is only one factor in reaching this conclusion.  Other factors are the same as set forth above.  Specifically, the Veteran's reports concerning onset of at least his tinnitus are inconsistent.  He delayed for almost 27 years in filing the instant claim.  He is self-interested and has a strong desire for monetary gain.  Sensorineural hearing loss to any degree, much less to a compensable degree, within one year from the Veteran's separation from service therefore is not found.

With respect to the in-service incurrence or aggravation of an injury, it is undisputed that the Veteran had loud noise exposure.  He testified that he was in close proximity to aircraft engines during service and that the ear protection he was given was inadequate.  He is competent to so recount because such would have been within his personal knowledge.  He also is credible.  Due consideration shall be given to the circumstances of a veteran's service.  38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.304(d).  Here, the Veteran's DD-214 reflects that he was a tactical aircraft maintenance specialist.  It is facially plausible that this position necessitated that he be near airplane engines that are noisy regardless of whether ear protection was worn.  Loud noise exposure is consistent with the circumstances of the position, in other words.

No private medical opinions concerning a nexus between the Veteran's hearing loss and tinnitus and his loud noise exposure during service are of record.  The only VA opinion concerning such a nexus is from the November 2010 audiological examination.  The Veteran testified that the doctor who performed this examination remarked it is highly likely his current hearing loss and tinnitus are related to his service to include loud noise exposure therein.  Yet he contradicted himself in also testifying that this doctor conveyed the likelihood as a toss-up or 50/50.  A lay person's account, in any event, of what a medical professional purportedly told him is not competent medical evidence.  Robinette v. Brown, 8 Vet. App. 69 (1995).  The VA examiner actually concluded that to opine as to the etiology of the Veteran's hearing loss and tinnitus would require resort to speculation.  Noted in this regard was that there is no separation examination with audiological results.  Also noted was that he had both military and occupational noise exposure.  He indeed reported working as an aircraft mechanic, with ear protection always worn, for a major airline from 1986 to 1996.

In sum, the only medical nexus opinion is neither negative nor positive.  An examiner's conclusion that an etiology opinion is not possible without resort to speculation is a medical conclusion just as much as a conclusive opinion.  Jones v. Shinseki, 23 Vet. App. 382 (2010).  A few instances in which the nexus or etiology of a disability cannot be determined indeed have been identified.  These include when there is a limit to even the most current medical knowledge, when information that could only have been collected in service is missing, or when application of current medical knowledge yields multiple possible etiologies with none more likely than not the cause of a disability.  Id.  Given these instances, VA need not order multiple medical examinations until a conclusive opinion is rendered.  Id.  Use of the phrase "without resort to mere speculation" cannot be used as a substitute for the full consideration of the evidence, however.  Id.  The basis for such an opinion further must be provided or otherwise apparent.  Id.  Here, the VA examiner reviewed the claims file and interviewed the Veteran.  It follows that there was full consideration of the evidence.  The VA examiner conveyed that a missing separation examination with audiological results, or information that could only have been collected during service, partially is the basis for the opinion as is multiple possible etiologies, or military loud noise exposure as well as civilian loud noise exposure.

Factors in assessing the probative value of a medical opinion include the qualifications and expertise of the examiner, access to the claims file or other pertinent evidence, the scope of the examination, the accuracy of the factual premise underlying the opinion, the thoroughness and detail of the opinion, the rationale offered for the opinion, and the degree of certainty provided.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Prejean v. West, 13 Vet. App. 444 (2000); Black v. Brown, 10 Vet. App. 297 (1997); Ardison v. Brown, 6 Vet. App. 405 (1994); Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993); Guerrieri v. Brown, 4 Vet. App. 467 (1993).  It is reiterated that the VA examiner reviewed the claims file as well as interviewed the Veteran.  There is no indication that the scope of the examination performed by this examiner, an audiologist, was inadequate.  The examiner's opinion was expressed in certain rather than uncertain terms.  A sufficiently detailed rationale was supplied in support.  

That leaves the accuracy of the factual premise underlying the opinion.  There is no indication the VA examiner's opinion was based on an inaccurate factual premise.  The examiner did not discuss or even reference the Veteran's report of having hearing loss and tinnitus ever since his service.  Accordingly, it is clear that the examiner did not base the opinion on this factual premise.  Doing so indeed would have been erroneous, as such a factual premise is inaccurate.  That the Veteran experienced hearing loss and tinnitus during service and within the first post-service service year was rejected above.  That he experienced persistent hearing loss and tinnitus subsequent to his first post-service year also is rejected.  The Veteran's reports in this regard are competent for the same reason as set forth above.  However, they are not credible.  That there is a lack of contemporaneous evidence, in that no treatment records dated between August 1984 and the November 2010 VA audiological examination are available, is only one factor in reaching this conclusion.  Other factors are the same as above.  Specifically, the Veteran's reports concerning onset of at least his tinnitus are inconsistent.  He delayed for almost 27 years in filing the instant claim.  He is self-interested and has a strong desire for monetary gain.

Of import, the Veteran testified that he was told he had hearing loss following physicals for his aircraft-affiliated employer from 1985 to 1986 and for the major airline he worked for from 1986 to 1996.  Yet the records of such physicals are not available, as noted above.  The Veteran's recollection regarding them is not competent medical evidence.  Robinette, 8 Vet. App. at 69.  While competent lay evidence, it is not credible for the same reasons as above.  The first post-service evidence of hearing loss and tinnitus thus was documentation of each at the November 2010 VA audiological examination.  In other words, hearing loss and tinnitus were not documented until over 27 years following the Veteran's separation from service.  Continuity of treatment, as opposed to continuity of symptoms (which as discussed above is not present here), is not required.  Savage, 10 Vet. App. at 488.  However, a prolonged period without such treatment is a factor that tends to weight against service connection.  Maxson v. West, 12 Vet. App. 453 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).  Onset during service indeed is of reduced likelihood with a sizeable gap between service and post-service treatment such as that in existence here. 

The probative value of the VA examiner's opinion, in sum, is high.  Indeed, the Board finds it to be the most persuasive evidence of record.  The only other nexus evidence is from the Veteran.  It specifically is clear that he believes there is a connection between his current hearing loss disability and his in-service loud noise exposure as well as between his current tinnitus disability and his in-service loud noise exposure.  Lay evidence sometimes can be sufficient to prove nexus.  Davidson, 581 F.3d at 1313; Jandreau, 492 F.3d at 1372; Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010).  However, the question of whether there exists a nexus in this case falls outside the province of a lay person.  It is a medical question.  Of import are the numerous causes of hearing loss and tinnitus, the fact that the Veteran had military noise exposure as well as post-service civilian noise exposure, the number of years since his service, and the complexities of the ears.  Only those with specialized medical knowledge, training, and expertise are competent where the determinative issue is one of medical causation.  Jones v. West, 12 Vet. App. 460 (1999).  Therefore, the Veteran is not competent to render an opinion that there exists a nexus between his hearing loss or tinnitus and his service.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, 492 F.3d at 1372.  His credibility in this regard accordingly need not be addressed as his assertions of nexus are not competent evidence.

In conclusion, the preponderance of the evidence is against service connection for hearing loss and for tinnitus under all applicable theories of entitlement.  The benefit of the doubt rule therefore is inapplicable.  The Veteran is denied the benefit sought for both disabilities.


ORDER

Service connection for hearing loss is denied.

Service connection for tinnitus is denied.


REMAND

Although the Board sincerely regrets the additional delay remand entails, adjudication of the Veteran's entitlement to service connection for a back disability cannot be undertaken as of yet.  More development is needed.  Such development is necessary to ensure the Veteran is afforded every possible consideration.  This is due to VA's duty to assist him in substantiating his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

I.  Records

Reasonable efforts must be made by VA to assist in the procurement of relevant records, as noted above.  38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c).  Reasonable efforts with respect to records in Federal custody consist of making as many requests as are necessary to obtain them unless it is concluded that they do not exist or that further requests would be futile.  38 U.S.C.A. § 5103A(b)(3); 38 C.F.R. § 3.159(c)(2).  When the existence of non-Federal (private) records is discovered, the claimant must be requested to either submit them to VA or provide enough information to identify and locate them along with an authorization for their release to VA.  38 C.F.R. §§ 3.159(c)(1), (e)(2).  If information and authorization is provided, reasonable efforts consist of an initial request and one or more follow-up requests if necessary.  38 C.F.R. § 3.159(c)(1).  The claimant shall be notified if requested records, whether Federal or non-Federal, cannot be or are not obtained.  38 U.S.C.A. § 5103A(b)(2); 38 C.F.R. § 3.159(e)(1).

By way of background, the Veteran has recounted being treated for his back and released at the base clinic following a motor vehicle accident (MVA) at Eielson Air Force Base at some point from May to July 1983.  M.J. and M.T., fellow airmen, indicate in respective September 2010 and April 2013 statements that the Veteran was involved in a MVA along with them.  M.J. noted that the Veteran sustained a back injury, while M.T. further noted that the Veteran received treatment at the clinic for a back injury.  At the May 2013 hearing, the Veteran testified that this clinic might not be inpatient although it did have the capability of keeping an individual overnight.  He further testified that X-rays were taken.

Service treatment records, to include some from the Eielson Clinic, are silent regarding treatment for the Veteran's back to include X-rays following a MVA.  In December 2010, VA requested that the National Personnel Records Center (NPRC) search inpatient clinical records for documentation of the MVA.  Yet no response was received.  As such, at least one more search must be requested.  Remand therefore is required.  The Veteran and his representative further must be notified on remand if the search is, or additional searches as necessary are, unsuccessful.

M.T. mentioned military police reports in his statement.  It therefore is inferred that there may be investigation records to corroborate the MVA.  To date, VA has not requested any investigation records.  Such must be undertaken on remand, with notification to the Veteran and his representative if the requests are unsuccessful.

Of additional note, the Veteran was informed at the hearing that the service treatment records of M.J. and M.T. as well as records of a potential civilian lawsuit filed by M.J. against the driver may corroborate the MVA.  He expressed his desire to proceed without attempting to procure these records.  Given that remand rather than a decision is made, however, it is possible that he might now change his mind.  The Veteran shall be informed again on remand that the aforementioned records may be useful in substantiating his claim.

The Veteran indicated in a May 2011 VA Form 21-4142 that VA has been treating him for his back since 1996.  Recent VA treatment records, those dated from February 2006 into April 2012, are of record.  Earlier VA treatment records dated beginning from January 1, 1996, were requested by VA in August 2011.  However, no response was received.  There further is no indication that VA treatment records dated from April 2012 to present have been requested by VA.  Pertinent VA treatment records plausibly could be expected to be among the evidence before the Board.  Bell v. Derwinski, 2 Vet. App. 611 (1992).  An additional request or requests for the earlier VA treatment records and a request or requests for the most recent VA treatment records therefore must be made.  The Veteran and his representative further must be notified if the requests are unsuccessful.  These actions require remand.

In a May 2010 VA Form 21-4142, the Veteran submitted an authorization for the release of private treatment records concerning his back from Dr. G.B.  He specified the dates Dr. G.B. treated him as June 1992 to January 2010.  VA requested Dr. G.B.'s treatment records, including a copy of the 21-4142.  Yet only treatment records dated from to January 2006 to January 2010 were received.  Earlier treatment records were not reported to be unavailable.  As such, the Veteran must be requested on remand to reauthorize their release to VA (authorization is effective only for 180 days from the date of signature).  In the alternative, he must be requested to supply the records himself.  If he provides the reauthorization, an initial request for the earlier treatment records must be made with follow-up requests as well as notification to him and his representative if they are unsuccessful as necessary.

The Veteran finally stated in the May 2011 VA Form 21-4142 that he was found permanently partially disabled due to his back by the state of New York in 1997.  He previously noted in a May 2010 statement that this determination was by the New York State Workers Compensation Board.  VA has requested no records from this entity to date, however.  Such must be done on remand.  The Veteran must be requested, if necessary, to authorize the release of the records to VA.

II.  Medical Examination and Opinion

When VA provides a medical examination or medical opinion for a service connection issue, whether or not there was an obligation to do so, the duty to assist requires that it be adequate.  Barr, 21 Vet. App. at 303.  A medical examination or opinion is adequate when it allows the Board to perform a fully informed evaluation.  Id.  Consideration must be given to the Veteran's entire medical history.  Stefl, 21 Vet. App. at 120; Ardison, 6 Vet. App. at 405.  The disability present, if any, must be described in sufficient detail during the medical examination.  Id.  The factual premises underlying a medical opinion must be accurate.  Reonal, 5 Vet. App. at 458.  The rationale for a medical opinion also must be clearly and fully articulated.  Nieves-Rodriguez, 22 Vet. App. at 295; Stefl, 21 Vet. App. at 120.

The Veteran underwent VA spine examinations in May 2011.  By way of background, the examiner reviewed the claims file and computerized VA treatment records, interviewed the Veteran, and performed an assessment of his back.  A back disability was diagnosed.  This diagnosis was opined to be at least as likely as not related to the Veteran's 1983 in-service MVA.  The rationale was noted to be that there is a nexus between the Veteran's currently diagnosed back disability and this MVA.  A post-service back injury was referenced but equated with aggravation of the preexisting back injury from service rather than incurrence of a new back injury.  In a July 2011 clarification, the examiner noted that the opinion is based solely on the accuracy of the Veteran and M.J. (M.T.'s statement was not yet of record) in reporting the MVA.  It additionally was opined that the earlier instances during service in which the Veteran was treated for back problems are not related to his currently diagnosed back disability.

Inferred from the above is that whether or not the in-service MVA occurred has not been determined.  The accuracy of the factual premise underlying the opinion is unclear at this time since the credibility of the Veteran, M.J., and M.T. is as of yet unknown, in other words.  Of further note, even presuming the MVA occurred, is that the examiner provided almost no rationale for the favorable opinion.  He used the word rationale, but essentially only reiterated the opinion.  There was no explanation for how the conclusion was reached that a nexus exists between the Veteran's current back disability and his in-service MVA.  The facts were not discussed, and there was no discussion of medical principles.  Attributes or characteristics of the Veteran's disability were not discussed, for example.  Further, no pertinent medical literature was cited.

To cure the aforementioned deficiencies herein, another VA medical opinion concerning the Veteran's back disability is needed.  Remand is required so that arrangements can be made in this regard.  Another VA medical examination is not necessary unless further assessment is deemed required.  Any further interview of the Veteran deemed required indeed likely can occur via telephone just as efficiently as and quicker than in person.

Given the above, a REMAND is directed for the following (expedited handling is required because this matter has been advanced on the Board's docket):

1.  Make as many requests as necessary to the appropriate entity, to include at a minimum the NPRC, for a search of Eielson Air Force Base inpatient clinical records dated between May and July 1983 concerning the Veteran's claimed in-service MVA.  Associate all responses and/or records received with the claims file or Virtual VA "eFolder."

2.  Make as many requests as necessary to the appropriate entity for a search of Eielson Air Force Base military police reports, or similar reports, dated between May and July 1983 concerning the Veteran's claimed in-service MVA.  Associate all responses and/or records received with the claims file or Virtual VA "eFolder."

3.  Inform the Veteran again in writing that service treatment records of M.J. and M.T. as well as records of a potential civilian lawsuit filed by M.J. against the driver may corroborate his claimed in-service MVA.  If he responds by indicating his desire to attempt to procure such records, assist him if possible and otherwise allow him sufficient time to undertake necessary action.  Place a copy of the written notification in the claims file or "eFolder."  Also further document the claims file or Virtual VA "eFolder" as appropriate regarding this paragraph.

4.  Make as many requests as necessary to obtain all VA treatment records regarding the Veteran dated from January 1, 1996, to February 2006 and dated from April 2012 to present.  Associate all records received with the claims file or Virtual VA "eFolder."

5.  Ask the Veteran to provide enough information to reauthorize the release of Dr. G.B.'s treatment records dated from June 1996 to January 2006 regarding him to VA.  Alternatively ask him to provide the records to VA himself.  If reauthorization is provided, make an initial request for the records with a follow-up request or requests as necessary.  Associate all records received with the claims file or Virtual VA "eFolder."

6.  Contact the New York State Workers Compensation Board or other appropriate entity and request, pursuant to established procedure, records of a disability determination dated in or around 1997 regarding the Veteran and the evidence upon which it was based.  If necessary, request that the Veteran authorize the release of the records to VA.  Associate all records received with the claims file or Virtual VA "eFolder."

7.  If requested records, whether Federal or non-Federal, ultimately are not received or are received but are incomplete, notify the Veteran and his representative pursuant to established procedure.  Document the claims file or Virtual VA "eFolder" as appropriate regarding this paragraph.

8.  After completion of all the above development, arrange for another VA medical opinion regarding the Veteran's back.  Specify to the examiner whether or not a MVA during service has been corroborated in doing so.  The Veteran's claims file and pertinent documents in the Virtual VA "eFolder" shall be made available and reviewed by the examiner.  If deemed necessary by the examiner, arrangements shall be made for another VA medical examination inclusive of tests, studies, and/or evaluations to further assess the Veteran.  Any further interview of him deemed necessary by the examiner, such as that concerning the onset, frequency, duration, and severity of his relevant symptoms, may be conducted via telephone or in person.

The examiner thereafter shall opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's back disability is related to the back problems he received treatment for during service or is otherwise related to his service.  If a MVA during service is corroborated on remand, the examiner further shall opine as to whether it is at least as likely as not that the Veteran's back disability is related to it.  A clear and complete rationale (explanation) shall be provided for each opinion rendered.  This shall include discussion of pertinent medical principles, with a citation and copy if possible for any literature referenced, as well as the pertinent medical evidence and lay evidence.  If an opinion cannot be provided without resort to mere speculation, a complete and clear rationale for why this is so shall be provided.  In so doing, it specifically shall be indicated whether or not the inability to render the opinion is because the limits of current medical knowledge have been exhausted, because more information is needed, because more information is needed but cannot be obtained, because there are multiple possible etiologies with none more likely than not the cause, or because of some other reason.

Each of the above actions shall be documented fully by the examiner in a report.  A copy of the report shall be placed in the Veteran's claims file or "eFolder."

9.  Finally, readjudicate the Veteran's entitlement to service connection for a back disability.  If this benefit is not granted, furnish him and his representative with a supplemental statement of the case (SSOC) and allow them the requisite time period to respond.  A copy of the SSOC shall be placed in the Veteran's claims file or Virtual VA "eFolder."

No action is required of the Veteran until he is notified by the RO or AMC.  However, he is advised that his failure to report for a scheduled VA medical examination may result in denial of the benefit sought.  38 C.F.R. § 3.655 (2012).  He also is advised that he has the right to submit additional evidence and argument on the issue remanded herein.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

It is reiterated that this matter must be afforded expeditious treatment because it has been advanced on the Board's docket.  38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012).  Further, the law requires that all matters remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action be handled in an expeditious manner.  38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



_________________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs