Citation Nr: 1324615 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 10-18 155 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for sleeping problems, diagnosed as insomnia. 2. Entitlement to an initial disability rating in excess of 10 percent for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from August 1962 to August 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In April 2011, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. Also in April 2011, the Veteran submitted additional evidence with a waiver of Agency of Original Jurisdiction (AOJ) consideration. Therefore, the Board may properly consider such newly received evidence. In a June 2010 rating decision, the AOJ granted service connection for tinnitus. As such is a complete grant of the benefits sought on appeal, the issue is not before the Board. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). The issue of entitlement to an initial disability rating in excess of 10 percent for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's insomnia is at least as likely as not a result of his service-connected tinnitus. CONCLUSION OF LAW The criteria for service connection for insomnia are met. 38 U.S.C.A. §§ 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. § 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS With respect to the claim of entitlement to service connection for sleeping problems, diagnosed as insomnia, the Board grants the Veteran's claim in full. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. The Veteran contends in his January 2010 notice of disagreement that he cannot sleep because of the loud noise produced by his tinnitus. In his April 2011 testimony before the Board, the Veteran contends that "the ringing in my ears [is] so loud it prevents me from going to sleep." See transcript, p. 3. He further testified that the ringing in his ears keeps him up at night. Id., p. 4. 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). The current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). Service connection may also be established for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (2012). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439 (1995). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). 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 all things of which he has personal knowledge derived from his own senses); 38 C.F.R. § 3.159(a)(2). 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). 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 the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (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 credible, the Board may properly consider the 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). 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. 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."). The Board finds that the evidence supports an award of service connection for insomnia as secondary to service-connected tinnitus. First, the Veteran is competent to identify his own difficulty sleeping. See Davidson, 581 F.3d at 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d at 1376-77 (Fed. Cir. 2007); see also 38 C.F.R. § 3.159(a)(2). Additionally, a VA clinician diagnosed the Veteran with sleep difficulty in November 2003. Further, he provided the Board with a diagnosis of insomnia from his private treating physician, M. S. Costa, M.D., in April 2011. Second, the Veteran is competent to attribute his difficulty sleeping to his tinnitus because he can both hear the ringing in his own ears and observe that it is keeping him awake. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428 (2011); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (a layperson is competent to observe tinnitus); see also 38 C.F.R. § 3.159(a)(2); cf. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (rheumatic fever is not a condition capable of lay diagnosis). Moreover, the Board finds that the Veteran's statements relating his difficulty sleeping to his tinnitus are highly credible, based on both the consistency of his testimony and the fact that he had sought VA treatment for trouble sleeping at night in December 2009, at which time he told his treating VA physician that his tinnitus was noticeable mostly at night. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007)(the Board may properly consider the Veteran's demeanor when testifying at a hearing.); see also Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that, although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate; statements made to clinicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Furthermore, Dr. Costa opined in April 2011 that the Veteran's tinnitus "is an antagonizing feature to his insomnia." While Dr. Costa did not provide a sufficient rationale to support a grant of service connection on its own, his conclusion does support the Veteran's own statements and testimony. Based on the above, the Board finds that the evidence is at least in equipoise as to whether the Veteran's insomnia is related to his service-connected tinnitus. Specifically, the combination of the Veteran's diagnosed insomnia, his VA and private treatment for a sleeping disorder, and his consistent and highly credible testimony are sufficient to link his insomnia to his service-connected tinnitus. Significantly, no medical opinion to the contrary is of record; indeed, his April 2011 private physician expressly linked the Veteran's insomnia to his tinnitus. Thus, resolving all reasonable doubt in his favor, the Board finds that service connection is warranted for insomnia. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 3.310. ORDER Service connection for insomnia is granted. REMAND The Veteran testified at his April 2011 videoconference hearing that his bilateral hearing loss has worsened since the most recent VA examination, which was conducted in June 2010. See transcript, p. 7. Moreover, that examination is now more than three years old. As such, the evidence indicates that the Veteran's bilateral hearing loss has increased in severity since the last examination and VA is required to afford him a contemporaneous VA examination to assess the current nature, extent, and severity of that disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). As the appeal is being remanded for development, the RO should ask the Veteran to identify any additional, pertinent medical treatment that he has received, and take appropriate measures to obtain those records. Any additional, pertinent VA treatment records, including those from the VAMC in Charleston, South Carolina, should either be made accessible on Virtual VA or be printed and added to the file. See 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history). Accordingly, the case is REMANDED for the following action: 1. The RO should contact the Veteran and ask that he identify any outstanding VA and non-VA records pertaining to his bilateral hearing loss that are not already of record. The RO should take appropriate measures to request copies of any outstanding records of pertinent VA or private medical treatment, including those from the VAMC in Charleston, South Carolina, and associate them with the claims file. Any negative response should be in writing and associated with the claims file. 2. After obtaining any outstanding treatment records regarding the Veteran's bilateral hearing loss, provide him with an appropriate VA examination to determine the nature and severity of that disability. The claims file must be made available to and be reviewed by the examiner and all necessary tests should be conducted. The examiner should report all pertinent findings. The examiner should provide a complete rationale for all conclusions reached and should discuss those findings in relation to the pertinent evidence of record, particularly the Veteran's previous VA examinations conducted in May 2009 and June 2010 and any lay and clinical evidence suggesting that his overall bilateral hearing loss has worsened, resulting in more severe occupational and social impairment. The examiner should also discuss the impact that the Veteran's bilateral hearing loss has on his ability to secure and maintain substantially gainful employment. 3. Then, after providing the Veteran adequate time to respond, and after conducting any further development deemed warranted, readjudicate the appeal. If the claim remains denied, issue a supplemental statement of the case to the Veteran and his representative and provide 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 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs