Citation Nr: 1333293 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 13-14 360 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and his daughter ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1948 to May 1952. His awards and decorations include the Combat Infantryman Badge. This appeal to the Board of Veterans' Appeals (Board) arose from a May 2012 rating decision in which the RO denied service connection for tinnitus and bilateral hearing loss. In November 2012, the Veteran filed a notice of disagreement (NOD) as to the aforementioned claims. A statement of the case (SOC) was issued in March 2013, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in May 2013. In July 2013, the Veteran and his daughter testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. During the hearing, the Veteran submitted additional medical evidence directly to the Board, along with a waiver of initial RO consideration of the evidence. See 38 C.F.R. §§ 20.800, 20.1304 (2013). This appeal has been advanced on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2013). The Board's decision addressing the claim for service connection for tinnitus is set forth below. The claim of service connection for bilateral hearing loss is addressed in the remand following the order; that matter is being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the matter herein decided have been accomplished. 2. The Veteran's assertions of significant in-service noise exposure are consistent with the circumstances of his service, specifically including his combat experiences. 3. The Veteran currently has tinnitus, and competent, credible, and probative lay evidence of record indicates that his current tinnitus is related to his active military service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus are met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). Given the favorable disposition of the claim for service connection for tinnitus, the Board finds that all notification and development actions needed to fairly adjudicate this matter have been accomplished. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet.App. 309 (1993); Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). If a chronic disease, such as hearing loss (an organic disease of the nervous system), becomes manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of such disease during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1111, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In some cases, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease; or (b) if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology. The United States Court of Appeals for the Federal Circuit recently held that the provisions of 38 C.F.R. § 3.303(b) relating to establishing service connection on the basis of continuity of symptomatology in lieu of a medical nexus opinion is limited to disorders explicitly recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, as the record does not show, and the Veteran does not contend, that tinnitus is a disorder explicitly recognized as chronic under 38 C.F.R. § 3.309(a0. In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Veteran is seeking service connection for tinnitus due to his exposure to loud noise while serving as a parachutist and participating in combat during service. The Veteran contends that he was exposed to significant noise from airplanes and mortar fire. Specifically, in multiple written statements and during the July 2013 hearing, the Veteran asserted that he currently experiences tinnitus that is characterized by ringing in his ears. He testified that tinnitus began while he was in service after having to repeatedly fire mortars all night during the Battle of Inje of the Korean War. He also testified that the ringing in his ears continued after service, but that he did not seek treatment for years after service until it worsened. First addressing the question of in-service injury-here, noise exposure-the Board points out that the Veteran's service personnel records document his combat experiences. As such, the Board accepts the Veteran's assertions of significant in-service noise exposure as consistent with circumstances of his service. See 38 U.S.C.A. § 1154(b). The Board further notes that the Veteran is competent to diagnose tinnitus, i.e., ringing of the ears, on the basis of his own lay assertions. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (noting that lay evidence is competent with regard to facts perceived through the use of the five senses). See also Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify as to ringing in the ears (tinnitus)); Jandreau v. Nicholson, 492 F.3d 1372, 1377, Note 4 (Fed. Cir. 2007) (holding that sometimes a layperson will be competent to identify a medical condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer, and remanding to the Board to decide whether lay evidence was competent and sufficient to establish a shoulder dislocation); Barr v. Nicholson, 21 Vet App 303, 308-09 (2007) (holding that lay testimony is competent to establish the presence of varicose veins); cf. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (noting that, unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). Therefore, given the Veteran's assertions that he currently experiences tinnitus (which is documented in the October 2010 VA audiological evaluation report), the Board finds there is a current diagnosis of tinnitus. As such, the remaining inquiry in this case is whether there is competent, credible, and probative evidence establishing a medical nexus between current tinnitus and the Veteran's service. The service treatment records reflect no complaints, findings or diagnosis pertinent to tinnitus. As indicated, however, the Veteran is competent, as a layperson, to report that about which he has personal knowledge, including the onset, presence, and nature of symptoms, including tinnitus. See Layno, supra. The Board also finds no reason to question the veracity of the Veteran's assertions in this regard, and thus finds such to be credible. Therefore, while there is no contemporaneous evidence of tinnitus during service, there is competent lay evidence establishing that tinnitus manifested during the Veteran's active duty combat experiences. As noted, the Veteran was afforded an October 2010 VA examination to obtain a competent opinion as to whether he currently has tinnitus related to his military service. During that examination, the Veteran reported that his tinnitus began in the military and was constant. The examiner opined that "while the Veteran was exposed to a great deal of military noise, I believe the tinnitus to be more likely related to his hearing loss, which I do not believe is service related." The examiner did not discuss the Veteran's contention that tinnitus began in service and had been constant since that time. Further, the examiner relied, in part, on a 15/15 Whispered Voice test administered at the time of the Veteran's separation to determine that any acoustic trauma in service had not caused injury to hearing. While the Board has considered the opinion of the October 2010 VA examiner, the Board finds that such opinion is not persuasive. As noted, it appears to have been based, at least in part, upon the results of Whispered Voice testing, which the Veterans Health Administration (VHA) Handbook for Audiology indicates is no longer considered an adequate measure. Moreover, the examiner did not address the Veteran's contentions as to experiencing tinnitus in service and continuously thereafter. The Board acknowledges that no competent professional has specifically related the Veteran's current tinnitus to his military service; however, such an opinion is not necessarily needed with respect to tinnitus. As indicated, tinnitus is not among the chronic diseases listed at 38 C.F.R. § 3.309(a) . Nonetheless, given the nature of the disability (as explained above), the Board finds that the Veteran's competent and credible assertions of experiencing tinnitus in service, continuing to experience tinnitus after service, and currently experiencing tinnitus, are sufficient to support a finding that there may be a medical nexus between the Veteran's military service and his current tinnitus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107; Gilbert, 1 Vet, App. at 53-56. Given the totality of the evidence, to particularly include the Veteran's credible lay assertions in support of his claim, and resolving all reasonable doubt in his favor, the Board finds that the criteria for service connection for tinnitus are met. ORDER Service connection for tinnitus is granted. REMAND Unfortunately the Board finds that further RO action on the claim remaining on appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, the Veteran was afforded a VA audiology examination in October 2010. The examiner reviewed the claims file, examined the Veteran, and provided an opinion that hearing loss was not likely the result of any in-service acoustic trauma. The examiner based his opinion, in part, on the normal result of a Whispered Voice Test conducted at separation and on the Veteran's post-service history of meningitis with middle ear involvement. As indicated above, however, the VHA Handbook for Audiology indicates that the Whispered Voice test is no longer an adequate measure as it does not rule out the existence of mild hearing loss. Further, the examiner did not address the Veteran's contention that he experienced hearing loss prior to, and that was worsened by, meningitis. The Board also observes that the Veteran reported, and the examiner noted, that his middle ear complications from meningitis were treated at Barnes Hospital, but no records from that facility appear in the claims file. The October 2010 opinion as to the etiology of the Veteran's hearing loss is inadequate as the examiner appears to have relied on an inadequate measure of hearing used at the time of separation and did not consider all pertinent evidence. As such, the Board finds "this opinion lacks necessary support for its conclusions." Hicks v. Brown, 8 Vet. App. 417, 422 (1995); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). Pursuant to 38 C.F.R. § 4.2, it is incumbent upon the rating board to return an examination report as inadequate if it does not contain sufficient detail. Accordingly, the RO should return the claims file to the October 2010 VA examiner for an addendum opinion. The RO should only arrange for further examination of the Veteran if that examiner is unavailable, or if further examination of the Veteran is deemed necessary. The Veteran is hereby advised that failure to report to any scheduled examination, without good cause, may well result in denial of the claim. See 38 C.F.R. § 3.655 (2013). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to any scheduled examination, the RO should obtain and associate with the claims file a copy of the notice of the date and time of the examination sent to him by the pertinent VA medical facility. While this matter is on remand, to ensure that all due process requirements are met, and that the record is complete, the RO should undertake appropriate action to obtain all outstanding, pertinent records. The claims file reflects that the Veteran receives ongoing VA care and the last VA treatment note within the (virtual) file is dated December 14, 2011. As the appeal is being remanded for additional development, the RO should check for any subsequent VA treatment notes and, if available, associate them with the claims file. VA medical records that are not in the claims file are nevertheless considered part of the record on appeal since they are within the VA's constructive possession. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The record also indicates that there are outstanding private medical records which may be pertinent to the claim on appeal. Specifically, the Veteran reported receiving treatment for middle ear problems from Barnes Jewish Hospital in St. Louis. However, no records from that facility appear in the claims file. Further, the Veteran appears to receive ongoing care from a Dr. Emmons and from Good Samaritan Regional Health Center, but the last note in the claims file from Dr. Emmons is dated August 15, 2008 and the last note (rather than test result) from Good Samaritan is dated June 15, 2008. Therefore, the RO should give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claim remaining on appeal, notifying him that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b) (1) (West 2002); but see also 38 U.S.C.A. § 5103(b) (3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). In its letter, the RO should specifically request that the Veteran furnish, or furnish appropriate authorization for the RO to obtain, all outstanding, pertinent private records, to specifically include those identified above. Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2013). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim remaining on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain any available outstanding VA treatment records generated after December 14, 2011. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran provide, or provide appropriate authorization to obtain, all outstanding, pertinent private records, to specifically include those from Barnes Jewish Hospital, Dr. Emmons (after August 15, 2008), and Good Samaritan Regional Health Center (after June 15, 2008). Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, forward the Veteran's entire claims file, to include a complete copy of this REMAND, and copies of any pertinent Virtual VA records, to the VA audiologist who examined the Veteran in October 2010 for an addendum opinion. The examiner should review the claims file, with particular attention to the Veteran's lay contentions (as to experiencing hearing loss prior to any meningitis) as well as any treatment records gathered from Barnes Hospital. In addressing whether further review of the record alters the October 2010 opinion in any way, the examiner should specifically provide an opinion, with respect to each, ear as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that any currently diagnosed hearing loss is the result of in-service injury or disease-to particularly include in-service noise exposure was incurred in or aggravated by service. If the October 2010 VA examiner is not available, or another examination of the Veteran is deemed warranted, the RO should arrange for the Veteran to undergo VA examination, by an ear, nose and throat physician, or audiologist, to obtain a medical opinion responsive to the questions and comments noted above. In such instance, the entire claims file, to include a complete copy of this REMAND, and copies of any relevant Virtual VA records, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and his assertions. The examiner should set forth all examination findings (if any) along with complete, clearly stated rationale for the conclusions reached in a printed (typewritten) report 6. If the Veteran fails to report to any scheduled examination, obtain and associate with the claims file a copy of any notice of the date and time of the examination sent to him by the pertinent VA medical facility. 7. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 8. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal. in light of all pertinent evidence (to particularly include all that added to the record since the last adjudication) and legal authority. 9. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). The RO/AMC is reminded that this appeal has been advanced on the Board's docket. _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs