Citation Nr: 1331270 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 09-29 339 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a back disorder, to includes status post lumbar laminectomy. 4. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran served on active duty from August 5 to 8, 1980. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied the Veteran's claims for service connection for bilateral hearing loss, tinnitus, a back disorder and hypertension. The Veteran disagreed and perfected the appeal. In August 2010, the Veteran and his representative presented evidence in support of the Veteran's claims at a hearing at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the Veteran's VA claims folder. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a) 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012). VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2012). The Veteran in this case served in the Tennessee National Guard and served on active duty for three days. He contends that the flight he took to initial active duty for training at Fort Dix, New Jersey, had decompression problems which caused his right ear drum to burst. See hearing transcript at p. 5 and June 2009 Veteran's statement on the VA Form-9. He further contends that he went to sick call after arriving at Fort Dix and received treatment from a military physician who informed him that his right ear drum was punctured and leaking fluid. According to the Veteran's personnel records, the Trainee Action Sheet indicates that Fort Dix officials notified state National Guard headquarters that authorized the Fort Dix training command to send the Veteran home; 8 August 1980 orders included in the record relieved the Veteran from initial active duty for training and authorized his travel home. In addition, a TDP Counseling form, dated August 6, 1980, indicated that the Veteran went on sick call on August 5, 1980, for nausea and was sent back with medication and 24 hours of bed rest. The Veteran was diagnosed with "WOOTS" which stood for "wants out of the service." However, that afternoon the Veteran complained of backaches and stated that it stemmed from an ear infection. The Veteran also complained of symptoms in his stomach and heart. While the Board acknowledges the Veteran complained of symptoms, a review of the Veteran's records does not include objective medical evidence that he had any medical condition while he was on active duty or that he was rejected because of any medical condition related to his right ear. In this case, the Board acknowledges the Veteran is competent to testify as to his own observable symptomatology and in-service experiences, namely the injury to his ear during service. See Barr v. Nicholson, 21 Vet. App. 303 (2007). However, the Veteran is not competent or qualified, as a layperson, to render an opinion concerning medical causation. See Id.; Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). The Veteran submitted a July 2007 audio examination by S.C., Au.D., which indicates bilateral hearing loss, and the record includes a July 2007 VA form signed by S.C. indicating that it was at least as likely as not that the Veteran's hearing loss was related to his active duty service, but does not indicate how the hearing loss may be related or whether there was evidence that the Veteran's right ear drum had indeed been punctured. It is also unclear whether the Veteran has a clear diagnosis of hearing loss for VA purposes. Despite the positive nexus opinion, the Board notes that when assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). A medical opinion which only contains data and conclusions, and is not supported by reasons or rationale is accorded no probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two-" a medical opinion . . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. As such, given the Veteran's testimony of an in-service injury, evidence of contemporaneous complaints of the current disorders in service, and the lack of an adequate rationale to the nexus opinions of record, the Board finds the Veteran's claims file should be forwarded to a VA examiner(s) for an examination(s) with an opinion and rationale regarding whether the Veteran has bilateral hearing loss for VA purposes, tinnitus, a low back disorder, and hypertension which is due to service. Regarding the issues of a back disorder and hypertension, the Veteran testified at the Board hearing that the fluid in his ears drained down into his stomach and his spine causing back problems. See hearing transcript at p. 7. Regarding the Veteran's claim for hypertension, he testified his hypertension was related to the stress caused by his hearing loss and tinnitus. See hearing transcript at p. 10. The Veteran's representative also stated in the September 2013 Post-Remand Brief that his hypertension was related to the medications he was taking to treat his hearing loss and tinnitus. Given the Veteran's claims of a back disorder and hypertension are dependent, at least in part, on the outcome of the hearing loss disability claim, the Board will defer consideration of the secondary theory of those claims at this time. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA audiological examination with an appropriate examiner. Appropriate testing, including a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test, should be conducted. The results of puretone threshold testing for 500, 1000, 2000, 3000, and 4000 Hertz and speech recognition testing using the Maryland CNC test are to be reported. The examiner should provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that any diagnosed hearing loss and/or tinnitus had its clinical onset during active service or is related to any in-service disease, event, or injury, including a punctured ear drum. If hearing loss is found to be related to service, the examiner should also opine as to whether such service-related hearing loss caused tinnitus. If it is found that hearing loss did not cause tinnitus state whether such aggravates, increases the severity of tinnitus, beyond the natural progress of the disorder. In providing this opinion, the examiner should address the Veteran's lay statements concerning hearing loss and tinnitus, specifically his claim that he perforated his ear drum on a flight during active duty. The examiner is also asked to address the treatment and nexus opinions from S.C., Au.D. The examiner also should note that the fact that there was no diagnosis of hearing loss in service is not, by itself, a sufficient reason to find no nexus to service. The question becomes whether any incident of service, specifically the injury sustained during a flight to Fort Dix, caused hearing loss which was diagnosed years after the Veteran's discharge from service. If it is significant that the Veteran did not have hearing loss or tinnitus in service, the examiner should provide a complete rationale for such findings and in so doing point to sound medical principles. The claims file and a complete copy of this REMAND should be provided to the examiner for review in conjunction with the examination and such should be acknowledged. All appropriate testing should be accomplished and all findings and conclusions should be set forth in a legible report. All opinions expressed by the examiner should be accompanied by a complete rationale, with citation to relevant medical findings and lay statements. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 2. Upon completion of the foregoing, review the examiners' report to ensure substantial compliance with the Board's directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Take any needed corrective action. 38 C.F.R. § 4.2. 3. After completion of the above, the claims should be readjudicated, with consideration given to any new evidence and all appropriate laws and regulations. If the claims are not granted, the Veteran and his representative should be furnished an appropriate Supplemental Statement of the Case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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). _________________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).