Citation Nr: 1335252	
Decision Date: 11/01/13    Archive Date: 11/13/13

DOCKET NO.  05-32 578	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Albuquerque, New Mexico


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for a disability manifested by sleepwalking.


WITNESSES AT HEARING ON APPEAL

The Veteran, his wife, daughter, and grandson


ATTORNEY FOR THE BOARD

E. Pomeranz, Counsel



INTRODUCTION

The Veteran served on active duty from January 16, 1952 to May 15, 1952.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from June 2004, July 2005 and July 2006 decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico.  The June 2004 decision denied the Veteran's petition to reopen his claim for service connection for sleep disturbances claimed as insomnia (previously claimed as sleepwalking).  The July 2005 decision confirmed and continued the denial of the petition to reopen this claim.  Whereas the July 2006 decision also denied service connection for bilateral hearing loss.

The Board remanded these claims in May 2008 so the Veteran could have a hearing before a Veterans Law Judge (VLJ) of the Board, which he had later that year in October 2008.  The presiding judge subsequently issued a decision in December 2008 denying the claims, and the Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court/CAVC).

In a September 2009 Order, granting a Joint Motion, the Court vacated the Board's decision and remanded the claims to the Board for further development and readjudication in compliance with directives specified in the Joint Motion.

In September 2010, the Board also vacated its December 2008 decision and remanded the claims to schedule another hearing before the Board (and, specifically, a Travel Board hearing) because the VLJ that had presided over the prior videoconference hearing in October 2008 since had retired.  The Veteran had this additional Board hearing in June 2011 before the undersigned VLJ.  And after advancing this appeal on the docket in September 2011 pursuant to 38 C.F.R. § 20.900(c) and 38 U.S.C.A. § 7107(a)(2), the Board determined there was new and material evidence, so reopened the claim for service connection for a sleep disorder, including sleepwalking and insomnia.  But rather than immediately readjudicating this claim on its underlying merits, the Board instead remanded this claim, as well as the claim for service connection for bilateral hearing loss, to provide the Veteran VA compensation examinations for medical nexus opinions concerning the etiologies of these claimed disorders, including especially in terms of any potential relationship with his military service.

He had these additional VA compensation examinations in October and November 2011, with supplemental medical nexus opinions provided in February and March 2012.  The Appeals Management Center (AMC) continued to deny these claims in a July 2012 supplemental statement of the case (SSOC), however, so they were recertified to the Board.

In a December 2012 decision, the Board recharacterized the Veteran's sleep disorder claim as a claim for anxiety with chronic sleep impairment and a separate claim for sleepwalking, although previously considered as just a claim of entitlement to service connection for a sleep disorder, including sleepwalking and insomnia.  That recharacterization of the claim into two separate claims was necessary as the evidence indicated his insomnia and sleepwalking may be the result of different disorders, so different etiologies.  Specifically, in a November 2011 VA psychological examination report and February 2012 addendum to that report, a VA examiner had stated that he believed the Veteran's statements that he was treated in service for anxiety and insomnia.  Thus, the examiner concluded that the onset of the Veteran's anxiety was during service and that his sleep impairment, including insomnia, was a symptom of his anxiety disorder.  However, the examiner added that he could not provide an opinion on whether the Veteran's sleepwalking was related to his military service because it had multiple causes.  Therefore, in the December 2012 decision, the Board granted service connection for anxiety with chronic sleep impairment and remanded the separate claim for service connection for sleepwalking.  The Board also remanded the claim for service connection for bilateral hearing loss.  With respect to the hearing loss claim, the purposes of that remand have been met, so this claim is ready for appellate consideration.


As explained further below, however, still additional development is needed for the Veteran's claim for service connection for a disability manifested by sleepwalking.  Thus, the Board is again remanding this claim to the RO via the AMC.

Also in that December 2012 decision, the Board noted that an additional issue had been raised by the record concerning whether new and material evidence had been submitted to reopen a claim of entitlement to service connection for tinnitus, specifically, in a statement from the Veteran received in June 2010, but had not been initially adjudicated by the RO as the Agency of Original Jurisdiction (AOJ).  Thus, because the Board did not have jurisdiction over this additional claim, the Board referred it to the RO for appropriate development and consideration.  But there is no indication the RO since has developed or considered this additional claim.  Therefore, the Board is again making this referral.

In September 2013, the Veteran submitted a letter directly to the Board in support of his claim for service connection for bilateral hearing loss.  Since earlier that month he had waived initial RO consideration of this evidence on a form entitled, "Expedited processing, Waiver of the 30-day Waiting Period," a remand to have the RO initially consider this evidence is unnecessary.  38 C.F.R. § 20.1304 (2013).  He also made contentions essentially identical to those already made.


FINDING OF FACT

Bilateral hearing loss did not manifest during the Veteran's service or to a compensable degree of at least 10-percent disabling within one year of his discharge; the preponderance of the evidence also is against finding a nexus or correlation between the bilateral hearing loss he now has and any incident of his service, including especially exposure to noise and consequent injury (i.e., acoustic trauma).



CONCLUSION OF LAW

Bilateral hearing loss was not incurred in or aggravated by service and may not be presumed to have been.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA enhanced VA's duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  The VCAA also redefined the obligations of VA with respect to the duty to assist the Veteran with the claim.  Id.  The Board finds that VA fulfilled these obligations.

Duty to Notify

VA has a duty to notify the Veteran of any information and evidence needed to substantiate and complete a claim.  38 U.S.C.A. §§ 5102, 5103.  In order to meet the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must:  (1) inform the claimant of the information and evidence necessary to substantiate the claim; but also (2) inform the claimant of the information and evidence that VA will obtain; and (3) inform him of the information and evidence he is expected to provide.  See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements).  The Board concludes that letters issued in August 2005, February 2006, and March 2006 duly apprised him of the information and evidence needed to substantiate this claim and of his and VA's respective responsibilities in obtaining this necessary supporting evidence.  Thus, there was compliance with the VCAA's notification requirements.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Additionally, on March 3, 2006, so the same month as issuance of that most recent VCAA notice letter, the Court issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484, 486 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim.  Those five elements are:  (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  So VA must apprise the Veteran of all five of these elements, therefore including the "downstream" disability rating and effective date elements in the eventuality service connection is granted.

The Board finds that VA has met these duties with regards to the claim for bilateral hearing loss being adjudicated on its merits in this decision.  There is no issue as to providing an appropriate application form or completeness of the application.  The written notice provided in August 2005, February 2006, and March 2006 fulfills the provisions of 38 U.S.C.A. § 5103(a).  That is, the Veteran received notice of the evidence needed to substantiate his claim, the avenues by which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  See Beverly, 19 Vet. App. at 394, 403; see also Mayfield v. Nicholson, 19 Vet. App. 103, 109-12 (2005) (Mayfield I) rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).  In addition, the March 2006 letter also informed him about how VA determines effective dates and disability ratings, as required by Dingess.  The letter made a point of noting how the Court then recently had issued this decision requiring this notice even concerning these "downstream" elements of the claim.

The Board also recognizes that, according to Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004), proper VCAA notice should "precede an initial unfavorable [agency of original jurisdiction (AOJ)] decision on a service-connection claim."  VA did provide such notice to the Veteran prior to the July 2006 decision that is the subject of this appeal in its August 2005, February 2006, and March 2006 letters, since all preceded that initial adjudication of this claim, so were issued in this preferred sequence.

The Veteran has been provided the opportunity to respond to VA correspondence and over the course of the appeal has had multiple opportunities to submit and identify evidence potentially relevant to his claim.  Furthermore, he has been provided a meaningful opportunity to participate effectively in the processing of this claim.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).

Duty to Assist

VA also has a duty to assist the Veteran in obtaining evidence necessary to substantiate the claim.  38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim").  This duty includes assisting the Veteran in obtaining pertinent records, both from during and since service, and providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim.  38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant).  So, too, does the Board find this duty satisfied.

The Veteran's service treatment records (STRs) are sparse and only consist of sick/morning reports from the Fort Eustis, Co F 1st Bat 1st Platoon, which include Admission and Disposition sheets, dated on March 24, 1952 and April 19, 1952, on which his name and service number appear.  According to the National Personnel Records Center (NPRC), which is a military records repository, no other STRs are available and are presumed to have been destroyed in a fire there in 1973.  The Veteran was appropriately notified of this and given opportunity to submit any STRs in his personal possession or other alternative records, such as supporting statements from fellow servicemen (so-called "buddy" statements).

The law provides that when, through no fault of the Veteran, records under the control of the Government are unavailable, the obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt rule is heightened.  See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992).  

To this end, VA must advise the Veteran of his right to support his claim and try and compensate for this missing evidence by submitting alternate sources of evidence, including service medical or personnel statements, or lay evidence such as "buddy" affidavits or statements.  Id.; see also 38 C.F.R. § 3.159(e).  See, too, Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding that this heightened duty also includes the obligation to search for alternative records, such as by having the Veteran complete and return VA Form 13055 allowing for the search for evidence from the National Archives and Records Administration (NARA) or for extracts or other evidence from the Surgeon General's Office (SGO)).

Still, the Board must also point out that the O'Hare precedent does not raise a presumption that the missing medical records, if available for consideration, necessarily would support the claim.  That is to say, missing STRs do not lower the threshold for an allowance of a claim; there is no reverse presumption for granting a claim.  The legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened.  See Russo v. Brown, 9 Vet. App. 46 (1996).  The case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit-of-the-doubt doctrine, to assist the claimant in developing the claim, and to explain its decision when a claimant's medical records have been lost or destroyed.  See Ussery v. Brown, 8 Vet. App. 64 (1995).  Thus, missing STRs, alone, while indeed unfortunate, do not obviate the need for the Veteran to still have competent and credible evidence supporting his claim for service connection by suggesting a correlation between his claimed condition and his military service.  See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore, 1 Vet. App. at 406 and O'Hare, 1 Vet. App. at 367).

VA has duly informed the Veteran of its duty to assist in obtaining records and supporting evidence.  No additional evidence seems forthcoming, despite the necessary exhaustive attempts.  Thus, further efforts to obtain these additional records would be futile.  See 38 U.S.C.A. § 5103A(b)(3); 38 C.F.R. § 3.159(c)(2) and (e)(1).  See also Chest v. Peake, 283 Fed. App. 814 (Fed. Cir. 2008); 38 C.F.R. § 3.159(c)(2) (providing that VA will end its efforts to obtain records 

from a Federal department or agency only if VA concludes the records sought do not exist or that agency advises VA the requested records do not exist or that the custodian does not have them).

In addition, the Board also finds compliance with its September 2011 and December 2012 remand directives, certainly substantial compliance.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West , 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002)).  In the September 2011 remand, the Board directed the RO/AMC to provide the Veteran a VA audiological examination for an opinion concerning the etiology of his bilateral hearing loss.  Thus, in October 2011, he underwent a VA audiological evaluation.  In addition, in March 2012, the examiner from that October 2011 VA audiological evaluation provided an addendum to the evaluation report.  She concluded that the Veteran's currently diagnosed bilateral hearing loss was less likely than not related to noise exposure during his military service due to the short duration of his period of service (which was only from January 16 to May 15, 1952, so just for 5 or so months).  However, in the December 2012 remand, the Board requested a supplemental medical nexus opinion because the examiner did not consider the Veteran's contention that, during service, he was standing less than one foot away from a soldier whose weapon accidently discharged.  The Board indicated that, considering the intensity of the noise that presumably would result from the unexpected discharge of a rifle less than one foot way, the claim needed to be remanded so that a supplemental medical nexus opinion could be obtained from the examiner addressing that specific instance of noise exposure claimed by the Veteran (so irrespective of the length of time he was actually in service).


In March 2013, the examiner from the October 2011 VA audiological examination provided a second addendum to her examination report.  She continued to find that the Veteran's bilateral hearing loss was unlikely related to his period of service, including even from that specific incident of noise exposure from standing close to a weapon that accidently discharged.  She instead considered occupational noise exposure as a civilian and/or presbycusis (simple aging) far more likely etiologies of his hearing loss.  So she reiterated that his hearing loss has no relationship with his military service.

Her examination and opinions are thorough and adequate for the purpose of deciding this claim for hearing loss, especially since she provided the required explanatory rationale, which is where most of the probative value of a medical opinion is derived.  Neives-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  She discussed the Veteran's noise exposure in service, but also since, as well as other possible causes or sources of his present-day hearing impairment.  She also addressed the pertinent question of whether his currently diagnosed bilateral hearing loss was related to his period of service, and again, she provided the underlying rationale for her opinion.  Thus, with the benefit of her opinion, the Board finds that the medical evidence of record is now sufficient to resolve this appeal; VA has no further duty to provide an additional examination or medical opinion.  38 C.F.R. §§ 3.326, 3.327.

In the December 2012 remand, the Board observed the Veteran had been in receipt of disability benefits from the Social Security Administration (SSA) since 1996.  Thus, the Board directed the RO/AMC to obtain the Veteran's SSA records.  In Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) clarified that VA's duty to assist was limited to obtaining relevant SSA records.  The Federal Circuit Court rejected the argument in Golz that SSA records are always relevant and that VA always is required to obtain them.  Relevant records were defined under 38 U.S.C. § 5103A as those relating to the injury for which the claimant is seeking VA benefits and have a reasonable possibility of helping to substantiate the claim.  Golz, 590 F.3d at 1321.  The Federal Circuit Court also pointed out that, "[n]ot all medical records for a Veteran will have a reasonable possibility of aiding in the substantiation of a VA disability claim."  Id.  The Federal Circuit Court thus concluded in Golz, "[t]here must be specific reason to believe these records may give rise to pertinent information to conclude that they are relevant."  Id., at 1323.  This was indeed the case here.  But in a Memorandum dated in August 2013, the RO/AMC determined the Veteran's disability records from the SSA were unavailable for review.  It was explained that all procedures for obtaining those records had been correctly followed.  Specifically, in July 2013, the SSA had notified the RO/AMC that the Veteran's medical records had been destroyed.  Thus, the RO/AMC concluded that further attempts to obtain the SSA records would be futile.  38 C.F.R. § 3.159(c)(2); Chest, supra.

The Veteran had a Travel Board hearing before the undersigned VLJ in June 2011, during which he presented oral argument in support of his claim for hearing loss.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ chairing a hearing fulfill two duties to comply with this VA regulation.  These duties consist of:  (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked and that may be potentially advantageous to the claimant's position.  In this case, with this in mind, the undersigned VLJ set forth the claims and issues to be discussed during the hearing and sought to identify any pertinent evidence not then currently of record that might have been overlooked or was outstanding that might tend to substantiate the claim.  The presiding VLJ notified the Veteran that, in order to substantiate his service-connection claim, he had to show that he had bilateral hearing loss sufficiently severe to meet the threshold minimum requirements of 38 C.F.R. § 3.385 to be considered a ratable disability and that, once past that initial hurdle, he also needed competent and credible (i.e., probative) evidence causally relating this present-day hearing loss disability to his service.  So he was expressly apprised of the requirements for establishing his entitlement to service connection for this claimed disability.  Moreover, he has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conducting of that Board hearing.  The hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated his actual knowledge of those elements.  See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate the claim).  Consistent with Bryant, the presiding VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2), and, when considering the prior remands of this claim for the further development mentioned, the Board may proceed to adjudicating this claim based on the current record.  VA has fulfilled its VCAA duties to notify and assist the Veteran with this claim, and thus, no additional notification or assistance is required.

II.  Governing Statutes, Regulations and Cases

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

In interpreting sections 1110 and 1131 of the statute and section 3.303(a) of the regulations, the Federal Circuit Court held that a three-element test must be satisfied in order to establish entitlement to service connection.  Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)).  

Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases - namely those listed in 38 C.F.R. § 3.309(a) - benefit from a somewhat more relaxed evidentiary standard.  See Walker, supra, (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases.").  When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes").  38 C.F.R. § 3.303(b).

In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Id.  Thus, the mere manifestation during service of potentially relevant symptoms does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned.  Id.  If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim.  Id. 

The Federal Circuit Court noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a Veteran can establish service connection for a chronic disease" under subsection 3.303(b).  Walker, supra.  Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period."  Id.  (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation").  Significantly, the Federal Circuit Court indicated that showing a continuity of symptomatology after service is a lesser evidentiary burden than the nexus requirement of the three-part test discussed above:  "The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection . . . or service connection via continuity of symptomatology'"(emphasis added).  Id. 


Not all diseases that may be considered "chronic" from a medical standpoint qualify for the relaxed evidentiary standard under section 3.303(b).  Rather, the Federal Circuit Court held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  Id.  Thus, if the claimant does not have one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and "medical nexus of a relationship [sic] between the condition in service and the present condition is required.").  Walker, supra. (holding that the claimant's allegation of a continuity of hearing loss ever since service was insufficient to support the claim under subsection 3.303(b), as hearing loss was not among the chronic diseases listed in section 3.309(a)).

But sensorineural hearing loss, so a particular type of hearing loss, is defined as a chronic disease in section 3.309(a) because it is a type of organic disease of the nervous system.  The Veterans Benefits Administration's (VBA's) M21-1MR has a section titled "Determining Impaired Hearing as a Disability," which includes the following note:  "Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 CFR 3.309(a)."  M21-1MR III.iv.4.B.12.a.

So, if a Veteran has this specific type of hearing loss - namely, sensorineural - he may establish his entitlement to service connection for consequent disability by showing the disability incepted or originated during his service (meaning was directly incurred in service), or that it manifested to the required minimum compensable degree of at least 10-percent disabling within one year of his discharge from service (such that it may be presumed to have been incurred during his service), or that it is otherwise related or attributable to his service, such as by showing he has experienced continuous hearing loss since his service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303(a) and (b), 3.307; 3.309(a).  The presumption of service incurrence, however, is rebuttable by affirmative evidence to the contrary.  38 C.F.R. § 3.307(d).


The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155 (1993) (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)).  But before service connection may be granted for hearing loss, it must be of a particular level of severity.  For purposes of applying the laws administered by VA, impaired hearing only will be considered to be a ratable disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz  (Hz) is 40 decibels or greater; or when the auditory threshold for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

That said, to establish entitlement to service connection, it is not required that a hearing loss disability by these standards of 38 C.F.R. § 3.385 be demonstrated during service, including at time of separation or even during the one-year presumptive grace period after service allowing for sensorineural hearing loss, as an organic disease of the nervous system, to initially manifest to a compensable degree (meaning to at least 10-percent disabling), although a hearing loss disability by these standards must be currently present, and service connection is possible if this current hearing loss disability can be adequately linked to service.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).

Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting regulatory requirements for hearing loss disability for VA compensation purposes (i.e., 38 C.F.R. § 3.385 ), and a medically sound basis upon which to attribute the post-service findings to the injury in service, as opposed to intercurrent causes.  Hensley, 5 Vet. App. at 159.

The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine whether the evidence is "credible", or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must additionally determine whether it is also credible).  Only if the evidence is both competent and credible does it ultimately have probative value.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted).  The third and final step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).

Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:  (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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.  Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

In certain instances, lay evidence has been found competent with regards to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).

On the other hand, laypersons equally have been found not competent in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).  See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue).

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.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011).  See also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation).

Competent medical evidence, as opposed to lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza at 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").  As fact finder, when considering whether lay evidence is satisfactory, the Board may not only consider internal inconsistency of statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, but also the Veteran's demeanor when testifying at a hearing when he has testified.  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).  See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor).

In ultimately rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  To this end, the Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, 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 Court similarly 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).

The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002).  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 C.F.R. § 3.102.  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).

III.  Factual Background

As already acknowledged, the Veteran's STRs are sparse and only consist of sick/morning reports from the Fort Eustis, Co F 1st Bat 1st Platoon, which include Admission and Disposition sheets, dated on March 24, 1952 and April 19, 1952, on which his name and service number appear.  The records do not provide the reason for his hospitalization or the nature of his illness.  According to the NPRC, no other STRs are available and are presumed to have been destroyed in a fire there in 1973.

Nevertheless, he is competent to report any injury he sustained in service, including the specific type of acoustic trauma alleged, because this concerns his firsthand knowledge of a factual matter.  See Washington v. Nicholson, 19 Vet. App. 363 (2005).  Hence, the Board accepts that he sustained acoustic trauma during his service as alleged.  Indeed, because he had related a specific instance of trauma that the VA compensation examiner had not considered in her prior deliberations (namely, standing less than one foot away from a soldier whose weapon accidently discharged), the Board remanded the claim again in December 2012 for a supplemental opinion addressing that particular injury in service, so on the premise it had occurred as asserted.  The mere fact the Board is accepting the Veteran's claimed injury in service as having occurred lessens the significance of not having his STRs because, for all intents and purposes, the Board is conceding he sustained the claimed injury.  But as already explained, missing STRs, alone, while indeed unfortunate, do not obviate the need for him to still have evidence supporting his claim by establishing he has the claimed disability and suggesting there is a relationship or correlation between this disability and his military service, and in particular that injury.  Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)).  To reiterate, missing STRs do not lower the threshold for an allowance of a claim; there is no reverse presumption for granting a claim.  The legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened.  See Russo v. Brown, 9 Vet. App. 46 (1996).  Cf. Collette v. Brown, 82 F.3d 389, 392-93 (Fed. Cir. 1996); Arms v. West, 12 Vet. App. 188, 194-95 (1999).  And it is in this other equally critical respect that the evidence is less favorable to the claim.

In August 2005, the Veteran filed a claim of entitlement to service connection for bilateral (left and right ear) hearing loss.  He stated that he had bilateral hearing loss from exposure to loud noise during his service.  In support of his claim, he submitted a private medical statement from T.S., M.D., and J.M., M.A., CCC-A, contemporaneously dated in August 2005.  In the statement, Dr. S. and Ms. M. indicated the Veteran then recently had undergone otologic and audiologic evaluations.  They noted he had reported difficulty hearing in all situations and used his wife to interpret conversations.  According to these examiners, the Veteran's history of noise exposure included military exposure to firearms, as reported by him.  An audiological evaluation was performed using pure tone air conduction and speech audiometry.  The results showed a moderate-severe to profound sensorineural loss, bilaterally.  Speech discrimination was poor bilaterally at sufficient intensities.  According to Dr. S. and Ms. M., the Veteran's pattern of loss was not wholly consistent with noise exposure; however, the amount of noise that he had described during his military career would be sufficient to cause a significant amount of hearing loss and was, undoubtedly, a contributing factor to his current loss.

In September 2005, the RO received an undated private audiometric examination report and a private medical statement from Dr. R.G.C., dated in August 2005.  The undated private audiometric examination report contained uninterpreted graphical representation of the Veteran's auditory threshold testing results.  It was noted the Veteran's hearing loss was for "hi exposicion [sic] to the noise and th[at] trouble [was] worst with age."  It was also reported that he needed hearing aids.  In the August 2005 private medical statement, Dr. R.G.C. reported that he had treated the Veteran for many years.  He indicated the Veteran had presented with the following diagnosis:  profound deafness, bilaterally, with irreversible damage.  

According to Dr. R.G.C., the Veteran had chronic prolonged symptoms that were caused by excessive and frequent noise initiated by his term in the military from "its inception to the present."  Dr. R.G.C. stated that hearing aids were of little help and that the Veteran was dismissed from the military "unjustly and abruptly for which reason he could not complete his military obligation as he had wished."

In September 2005, the Veteran submitted a statement from Mr. C.K.O. in support of his claim.  In the statement, Mr. O. stated that he had known the Veteran since 1976, at which time the Veteran had hearing problems.  According to Mr. O., the Veteran had told him that that he had been in the Army and that the firing of weapons had bothered him.  Mr. O. indicated the Veteran's hearing had worsened over the years.

In November 2005, the RO received private medical records, dated from January 2001 to April 2004.  The records reflect that, in January 2001, the Veteran underwent an audiological evaluation that showed mild to moderately-severe sensorineural hearing loss, bilaterally, with good speech recognition abilities in the left ear and slight difficulty in speech recognition in the right ear.  According to the records, in April 2004, he underwent a follow-up audiological evaluation.  The results of that audiological evaluation showed he was nearly deaf.

In April 2006, the Veteran had a VA audiological evaluation for compensation purposes.  He reported a gradual loss of hearing in both ears that he attributed to noise exposure while attending basic training.  His noise exposure in the military was limited to noise from the firing range.  In regards to post-service noise, he had experienced occupational noise due to limited work in construction and truck driving.  He denied any recreational noise history.  The audiological examination revealed he had puretone air conduction threshold levels in the right ear at 500, 1,000, 2,000, 3,000, and 4,000 Hz as follows:  55, 60, 70, 70, and 75 decibels, respectively, with a puretone average of 68.75 decibels.  In the left ear for the same frequencies, he had puretone air conduction threshold levels of 55, 60, 60, 65, and 65 decibels, with a puretone average of 62.5 decibels.  Speech discrimination percentages were 44 percent in the right ear and 24 percent in the left ear.  The diagnosis was bilateral sensorineural hearing loss, moderate to severe.  Word understanding was profoundly reduced in both ears.

After that April 2006 VA audiological examination, the RO determined the examination was inadequate because the examiner did not provide the necessary nexus opinion as to whether the Veteran's bilateral hearing loss was related to military noise exposure, including to weapons fire during his basic training.  Thus, in June 2006, the examiner from that April 2006 VA examination provided an addendum to the April 2006 VA examination report.  In the addendum, the examiner stated that the Veteran's hearing loss was progressive with significant changes in the last few years, as evidenced on examinations.  According to the examiner, that was not consistent with noise exposure but, instead, was consistent with presbycusis (simple aging).  Thus, the examiner concluded that the Veteran's hearing loss was not caused by or a result of weapons fire during his basic training.  The examiner reiterated that the Veteran's hearing loss onset, configuration, and progression were inconsistent with limited noise history, but consistent with presbycusis.

In June 2008, the Veteran submitted a lay statement from his brother in support of this service-connection claim.  In the statement, the Veteran's brother stated that the Veteran had been experiencing hearing loss since the late 1950s.

In October 2008, the Veteran testified at a videoconference hearing before a VLJ of the Board who since has retired.  The Veteran testified that, after he was in the military for a month and a half, he noticed that he was experiencing hearing loss.  He stated that, during service, his military occupational specialty (MOS) was foot soldier and that he was exposed to loud noises during his basic training.  According to him, he fired ammunition on the rifle range without the benefit of hearing protection.  He indicated that, after his discharge from service, he continued to experience bilateral hearing loss.


In June 2011, the Veteran testified at another hearing before the Board.  This time, however, with the undersigned VLJ presiding (owing to the prior VLJ's retirement) and in person at the RO, rather than using videoconferencing technology, so a Travel Board hearing.  In the course of his testimony the Veteran reiterated his contention that, during his service, he was exposed to loud noises without any hearing protection.  Specifically, he maintained that, during his basic training, he was exposed to artillery firings.

An additional VA audiological examination was performed in October 2011.  That audiological examination revealed the Veteran had puretone air conduction threshold levels in the right ear at 500, 1,000, 2,000, 3,000, and 4,000 Hz as follows:  60, 70, 80, 80, and 85 decibels, respectively, with a puretone average of 79 decibels.  In the left ear for the same frequencies, he had puretone air conduction threshold levels of 60, 65, 65, 70, and 80 decibels, with a puretone average of 70 decibels.  Speech discrimination percentages were 28 percent in the right ear and 26 percent in the left ear.  The diagnosis was bilateral sensorineural hearing loss.  

In the October 2011 VA audiological report, the examiner did not address the pertinent nexus question of whether the Veteran's bilateral hearing loss was related to his period of service, specifically in-service noise exposure.  Thus, in March 2012, the examiner from the October 2011 examination proved an addendum to the examination report.  The examiner stated that she had reviewed the Veteran's claims file for the pertinent history.  It was her opinion that the Veteran's bilateral hearing loss was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.  She recognized that his STRs had been destroyed in the fire at NPRC and, therefore, were unavailable to review.  However, she noted that she had reviewed his numerous statements regarding the hearing-related symptoms he had experienced during and since his military service.  She assumed that he was exposed to some potentially hazardous noise while in the military, as reported in all of his statements.  But whether exposure to potentially hazardous noise had resulted in subsequent hearing loss depended on a combination of both the intensity and duration of that noise exposure, among other factors.  She surmised that the extremely short duration of potentially hazardous noise exposure that the Veteran had experienced during his military service (owing to the relatively short time he was in service) was less likely than not to have resulted in his hearing loss.  In short, she agreed with the conclusion reached by the examiner in the report of the prior June 2006 VA audiological evaluation.

In December 2012, the Board remanded this claim - in the process noting the Veteran had reported a specific event in service when he was exposed to loud noise.  He had asserted that, during a mail call, while standing in formation, a fellow soldier standing less than one foot away from him accidently had discharged his weapon, and that the Veteran's hearing never returned to normal levels following that incident.  See June 2011 Board hearing testimony, November 2011 VA psychological examination report, and December 2006 and June 2010 statements.  Thus, the Board requested a supplemental medical nexus opinion because the examiner did not consider that particular event as the cause or source of the Veteran's present-day hearing impairment.  The Board indicated that, considering the intensity of the noise that presumably would result from the unexpected discharge of a rifle less than one foot way, the claim needed to be remanded so that a supplemental medical nexus opinion could be obtained from the examiner addressing that specific instance of noise exposure claimed by the Veteran.

In March 2013, the examiner from the October 2011 VA audiological examination provided a second addendum to the examination report.  She stated that, after reviewing the Veteran's claims file for the pertinent history, it was still her opinion that his hearing loss was unlikely a result of any event or disease/injury during his military service period.  She specifically noted that it was unlikely that hearing loss of the severity and configuration that was currently exhibited by the Veteran was a result of the type of incident he had described.  As explained in the previous opinion dated in March 2012, his multiple lay statements had been fully taken into account and his statements were accepted as valid.  She therefore accepted that he had sustained the type of acoustic trauma alleged during his service, including especially in the particular incident mentioned.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied entirely on the absence of evidence in the STRs to provide a negative opinion).  Cleary then, unlike in Dalton, there was the required recognition even of this specific injury.  

But according to this VA compensation examiner, the configuration of the Veteran's hearing loss was inconsistent with noise trauma (there was no characteristic "noise notch"), nor did the incident that he described explain the severity of his loss.  It was possible for a single gunshot to cause some cochlear damage, but that would not necessarily equate to quantifiable hearing loss.  Noise-induced hearing loss was far more likely to be caused by long-term exposure to hazardous noise levels than it was to be caused by a single gunshot.  In addition, as stated in all VA training material addressing this topic, there was no scientific evidence for delayed-onset hearing loss as a result of a past history of noise exposure.  The examiner further explained that a review of the Veteran's Compensation and Pension (C&P) case history questionnaire, dated in October 2011, revealed occupational noise history that included 10 years of railroad/construction work and recreational noise history that included hunting.  This VA examiner opined that occupational noise exposure and/or presbycusis was a far more likely etiology for the Veteran's hearing loss than the episode in service he had described.

IV.  Analysis

The Board already has made clear how the mere absence of the STRs does not obviate the need for the Veteran to have the required nexus evidence supporting his claim to establish the required cause and effect between his injury in service and later development of bilateral hearing loss.  O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Ussery v. Brown, 8 Vet. App. 64 (1995).  The Board also has emphasized how the case law does not lower the legal standard for proving a claim or create a reverse presumption for granting service connection, just instead increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be potentially favorable to the claim and to consider carefully whether implementation of the benefit-of-the-doubt doctrine is warranted.  See Russo v. Brown, 9 Vet. App. 46 (1996).

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

The Veteran served on active duty in the military from January 16 to May 15, 1952, so during a period of War, specifically, during the Korean Conflict.  See 38 C.F.R. § 3.2(e).  But he does not allege to have actually engaged in combat against an enemy force, and this is not otherwise indicated or even suggested.  Combat means the Veteran personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, and did not merely instead serve in a general combat area or combat zone.  This is a case-by-case determination, so fact specific.  See Moran v. Peake, 525 F.3d 1157 (Fed. Cir. 2008); VAOPGCPREC 12-99 (October 18, 1999).  Here, not only does the Veteran not allege his injury (acoustic trauma) occurred in combat, but he readily concedes it occurred instead during his basic training.  Even in this other circumstance, however, the Board must consider whether the injury claimed is consistent with the circumstances, conditions and hardships of his service.  38 U.S.C.A. § 1154(a).  And if it is, the Board still must accept that it occurred, even if in a non-combat situation or environment.  But, again, it is not the mere occurrence of this alleged injury in service that is the shortcoming of the claim since the Board is conceding the occurrence of this alleged acoustic trauma in service.  Rather, it is the insufficient nexus evidence etiologically linking the bilateral hearing loss since diagnosed to that trauma in service that is ultimately fatal to the claim.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").  This additional, and equally important, requirement of a successful claim is not eliminated merely because of missing STRs - especially when, as here, there is concession of the occurrence of the claimed injury in service.  See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore, 1 Vet. App. at 406 and O'Hare, 1 Vet. App. at 367).

The Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for bilateral hearing loss.  He asserts that, during his basic training, he was exposed to loud noises.  He adds that he had to shoot ammunition on the rifle range without hearing protection.  He also reports that, on one particular occasion, he was standing very close to a weapon that accidently discharged.  He contends that, due to his noise exposure in service, he developed bilateral hearing loss.

Although some of his STRs admittedly are unavailable, the same cannot be said of the records of his evaluation and treatment, for whatever reason and condition, during the many years since his discharge from service.  The 1973 fire at the NPRC had no detrimental effect on the existence and availability of these additional records since the conclusion of his service.  And the fact remains that there is no medical evidence showing he had decreased hearing in either ear until January 2001 or thereabouts, so not until nearly 49 years after his discharge from service.  In addition, the first evidence of a ratable hearing loss disability as defined by 38 C.F.R. § 3.385 was in April 2006, so approximately 54 years after his discharge from service.


The Board is permitted to place higher probative value on records more contemporaneous to the alleged trauma in service than on history as now reported by the Veteran, long after the fact.  Curry v. Brown, 7 Vet. App. 59, 68 (1994); Struck v. Brown, 9 Vet. App. 145, 155-56 (1996).  The Board may consider the absence of any indication of a relevant medical complaint until so relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  See also Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period following service during which there was no clinical documentation of the claimed disorder).

In Kahana and Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc), the Veterans Court (CAVC) and Federal Circuit Court cautioned that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence.  There was a similar holding in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), wherein the Federal Circuit Court recognized lay evidence as potentially competent to support the presence of the claimed disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as actual treatment records.  The essence of 38 C.F.R. § 3.303(b) is continuous symptoms, not necessarily treatment for them.  See Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991).  But the Federal Circuit Court went on to indicate in Buchanan that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence.  See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record.").  Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of other factors.  See Cartright, 2 Vet. App. at 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . .").

Ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts.  Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000).  Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role.  See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness).

The Board acknowledges the Veteran is competent to report that he has continued to experience hearing loss symptoms since service.  See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau, supra; Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009).  He is also competent to report that he was exposed to loud noise during his service in the manner alleged.  See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge).  Competent testimony is limited to that which the witness has actually observed and is within the realm of his personal knowledge; such knowledge comes to a witness through use of his senses - meaning that which is heard, felt, seen, smelled, or tasted.  Layno v. Brown, 6 Vet. App. 465 (1994).

It is within the Veteran's realm of personal knowledge whether he had exposure to loud noises in service, and has continued to experience hearing loss symptoms since that time.  The Board is cognizant that during his basic training, he most likely was exposed to loud noises, as indeed any soldier would be.  Accordingly, the Board finds that his statements in regard to his noise exposure in service are credible and consistent with the circumstances of his military service, even during the relatively short time he was in service.  38 U.S.C.A. § 1154(a).

His bilateral hearing loss, since sensorineural, is a "chronic" disease of the type contemplated by 38 C.F.R. §§ 3.303(b) and 3.309(a), and he maintains that he has experienced bilateral hearing loss since his service.  However, the Board finds that his statements concerning this are not credible with respect to the onset and continuity of his hearing loss symptoms.  His statements and assertions resultantly decline in probative value.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (The Board must make an express credibility finding regarding lay evidence.).

First, emphasis is placed on the multi-year gap between discharge from active duty (May 1952) and the first suggestion of hearing loss (January 2001), nearly 49 years later.  In addition, the first indication he had ratable hearing loss for VA compensation purposes was in April 2006, so approximately 54 years after the conclusion of his service.

Second, and as importantly, he did not contend that his bilateral hearing loss had started during his service until after filing his VA disability compensation claim.  Such a statement made only in this context and specifically for VA disability compensation purposes raises questions concerning its trustworthiness and consequent probative value because he did not begin making this declaration until having financial or other motive or incentive to do so.  See Pond v. West, 12 Vet. App. 341 (1999)(although the Board must take into consideration the Veteran's statements, it may consider whether self-interest may be a factor in making such statements).  The Board realizes that, during his June 2011 Travel Board hearing, he testified that he had submitted an earlier claim of entitlement to service connection for bilateral hearing loss within one year of his discharge from service in May 1952, meaning by May 1953.  But the evidence of record shows that the first time he actually filed a VA claim of any sort instead was in March 1983, and only then for nonservice-connected (NSC) disability pension benefits.  When filing that claim, he said he had been treated for sleepwalking and dizziness during his military service.  In addition, in January 1984, he filed claims for service connection for sleeping sickness, high blood pressure, and sleepwalking.  

When filing those earlier claims, there was never any mention of hearing loss or attribution of this loss, even assuming he had it at that time, to his military service that had ended many years earlier.  Consequently, this tends to show he did not consider hearing loss a concern at that time, which in turn tends to refute any notion that he had been experiencing continuous hearing loss since his service.  So this evidence is against the claim and tends to undermine his credibility and later assertions of having supposedly experienced continuous hearing loss since the conclusion of his service.  Had he in fact been experiencing continuous hearing loss since service when filing those earlier claims, VA claims no less, it seems only reasonable to expect that he would have mentioned this, but he clearly did not, only instead much later.  See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the Veteran wrote during treatment than to his subsequent assertion years later).  

Because of the very substantial gap in time (several decades) between the conclusion of the Veteran's service and the first suggestion of hearing loss, either in the way of a relevant subjective complaint or objective clinical finding such as a pertinent diagnosis, including of sensorineural hearing loss in particular, there also is no suggestion this condition initially manifested within one year of his discharge from service, certainly not to the required minimum compensable degree of at least 10-percent disabling.  So the Board may not presume his sensorineural hearing loss was incurred in service, either.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R.§§ 3.307, 3.309.

Moreover, although there is no disputing he has sufficient hearing loss to be considered a ratable disability according to 38 C.F.R. § 3.385, see, for example, the results of his April 2006 and October 2011 VA audiological examinations, the opinions disassociating this hearing loss from his service are more probative than those supporting this posited correlation.

Although there is competent evidence weighing both in favor of and against this contended causal relationship, the Court has held that it is the Board's duty to determine the credibility and therefore ultimate probative weight of evidence.  See Wood v. Derwinski, 1 Vet. App. 190 (1991).  And although the Board may not ignore the opinion of a physician, including a treating physician, it is free to discount the credibility and consequent probative value of a physician's statement or opinion.  See Sanden v. Derwinski, 2 Vet. App. 97 (1992).  Greater weight may be placed on one physician's opinion than another physician's opinion depending on factors such as reasoning employed by the physician.  See Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994).  Both the Federal Circuit Court and Veterans Court (CAVC) have specifically declined to adopt a "treating physician rule" that would give preference to statements from a treating physician.  White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001); Guerrieri v. Brown, 4 Vet. App. 467 (1993).

With these principles in mind, the Board will review the opinion evidence of record.

In the private audiology evaluation report from Dr. T.S. and Ms. J.M., dated in August 2005, Dr. S. and Ms. M. stated that, although the Veteran's pattern of loss was not wholly consistent with noise exposure, it was their conclusion that the amount of noise that the Veteran had described during his military career would be sufficient to cause a significant amount of hearing loss and was, undoubtedly, a contributing factor to his current loss.  In addition, in the August 2005 private medical statement from Dr. R.G.C., Dr. C. diagnosed the Veteran with profound deafness and opined that the Veteran had had chronic prolonged symptoms that were caused by excessive and frequent noise initiated by his term in the military from "its inception to the present."

But the Board finds that the ultimate probative value of these opinions is diminished by several factors.  Neither Dr. S, Ms. M., nor Dr. C. addressed the fact that the Veteran's period of service was only for approximately four months and not for an extended period of time.  In addition, the opinions failed to note or otherwise account for the negative post-service medical evidence showing he did not complain about or have indication of any hearing loss.  During those interim years, had he in fact been experiencing continuous hearing loss dating back to his service, it stands to reason there would have been some mention of this, but there clearly was not, only instead mention of other unrelated disability.  As already discussed, the first medical evidence showing he had decreased hearing was not until January 2001, nearly 40 years after his discharge from service.  Moreover, the first evidence of a ratable hearing loss disability as defined by 38 C.F.R. § 3.385 was not until April 2006, approximately 54 years after his discharge from service.  Those many intervening years when there was no mention of hearing loss tends to mitigate against the claim, and the opinions failed to address this negative evidence.  Furthermore, Dr. S, Ms. M., and Dr. C. also failed to acknowledge the other possible etiological factors of the Veteran's bilateral hearing loss, such as the aging process (presbycusis) and occupational noise exposure as a civilian.  Instead, they only mentioned and referred to his noise exposure in service, not also during the many years since, which is also deserving of consideration according to the VA compensation examiners.  And as discussed further below, the VA examiners from the April 2006 and October 2011 audiological examinations addressed these relevant additional factors.  Therefore, the Board finds that the probative value of the opinion from Dr. S. and Ms. M., and the opinion from Dr. C., are significantly diminished in comparison.  See Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997); Hayes v. Brown, 5 Vet. App. 60, 69 (1993) ("[i]t is the responsibility of the BVA . . . to assess the credibility and weight to be given the evidence").

By contrast, the Board attaches significant probative value to the conclusions reached by the VA examiner from the April 2006 VA examination, with an addendum report dated in June 2006, and the VA examiner from the October 2011 VA examination, with addendum reports dated in March 2012 and March 2013.  The VA examiners specifically recognized the Veteran's in-service noise exposure.  However, both examiners concluded that his bilateral hearing loss was unrelated to that noise exposure during his service, including even to the specific incident the Veteran cited as perhaps the most prominent cause.  These VA examiners specifically reported that his hearing loss onset, current VA audiometric configuration, and progression was inconsistent with a history of past noise exposure as the inciting event; rather, his hearing loss was more consistent with 

presbycusis (simple age-related hearing loss).  In addition, the October 2011 VA examiner linked the Veteran's hearing loss also to occupational noise history as a civilian.

The Board gives more probative weight to the opinions of the VA examiners because they were clearly based on a review of the claims file with specific citation to the clinical record, so to the specific facts that are most relevant.  The opinions were also supported by rationales.  Thus, the probative value of the VA opinions is high as the examiners were fully informed of the Veteran's pertinent history, both from during his service and since, they provided fully articulated rationales, and their opinions were supported by a reasoned analysis.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008); see 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.").   

With respect to the Veteran's own lay evidence that his currently diagnosed bilateral hearing loss is related to his noise exposure in service, the Board does not doubt that he had noise exposure in service, indeed, as virtually all soldiers do, and this claim is not being denied on the basis of an absence of such noise exposure.  In addition, he is competent to attest that he has difficulty hearing, and to report when he first noticed this problem.  However, for the reasons already discussed, his lay testimony concerning having supposedly had hearing loss since service is not deemed also credible, so not ultimately probative, and aside from that he is not competent to also opine that his bilateral hearing loss is related specifically to his noise exposure in service, as this is a complex medical question requiring medical expertise and training to make this determination.  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the origins of sensorineural hearing loss fall outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).  Absent such credentials, he is unable to provide a competent opinion as to the required causation.  See 38 C.F.R. § 3.159(a)(2).


Other evidence of record includes lay statements from the Veteran's brother and friend, Mr. O.  However, as laymen, they, too, are incompetent to opine that his currently diagnosed bilateral hearing loss is the result or consequence of his noise exposure in service.  Id.  So their lay testimony concerning this fails for the same reasons as the Veteran's.

Accordingly, the Board finds the preponderance of the evidence is against this claim of entitlement to service connection for bilateral hearing loss.  Therefore, there is no reasonable doubt to resolve in the Veteran's favor, meaning this claim must be denied.  38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

ORDER

The claim of entitlement to service connection for bilateral hearing loss is denied.


REMAND

As concerning the remaining claim, there has been a previous discussion as to whether the Veteran had a disability manifested by sleepwalking prior to his entry into the military.  In a March 1984 VA examination report, it was noted that, according to him, he had been a sleepwalker all of his life.  He noted that he had been discharged from the military because of his sleepwalking.

A Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or a disease existed prior to service and was not aggravated by such service.  38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2013).

If a condition is noted when entering service, the presumption of soundness does not apply.  In that case, a Veteran may bring a claim of aggravation of the disorder.  Smith v. Shinseki, 24 Vet. App. 40, 47 (2010).  But in such a case he has the burden of establishing aggravation by showing there was an increase in the disability during his service.  Horn v. Shinseki, 25 Vet. App. 231, 235 n. 6 (2012).

If on the other hand a condition is not noted when entering service, the presumption of soundness applies.  Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Horn, 25 Vet. App. at 234.  VA then has the burden of rebutting this presumption with clear and unmistakable evidence that an injury or disease manifested in service was both preexisting and not aggravated by service.  Wagner, 370 F.3d at 1096; Horn, 25 Vet. App. at 234.  See also VAOPGCPREC 3-2003 (July 16, 2003).

In this particular case at hand, no medical evidence, including any contemporaneous evidence, has been submitted that specifically shows the Veteran was diagnosed with a disability manifested by sleepwalking prior to his entrance into the military.  In addition, while he is competent to describe the sleepwalking he experiences, he is not competent to give an opinion as to whether he has an underlying disability manifested by sleepwalking as this issue involves highly complex medical questions concerning an internal physical process.  See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009).  Determining the etiology of complex medical conditions requires medical training and would not be subject to lay observation, as contrasted with the situations contemplated by Jandreau and Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of varicose veins).  Accordingly, his lay statements that he had a disability manifested by sleepwalking prior to his entrance into the miliary is not competent evidence and cannot be used to show that he had such a disability prior to his period of service.  Thus, the presumption of soundness when entering service is not rebutted.  38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); VAOPGCPREC 3-2003; Wagner, supra.  In other words, the Board must presume that he entered service in sound condition.  The question then becomes whether he currently has a disability manifested by sleepwalking that is related to his period of service, including the episodes of sleepwalking he said he had during his service that reportedly were the reason for his premature discharge from service.

In a November 2011 VA psychological examination report and February 2012 addendum to that report, a VA examiner stated that, according to the Veteran, during service he was hospitalized for two months for an anxiety disorder and insomnia.  The Veteran indicated that, prior to his hospitalization, he had significant insomnia and would fall asleep during classes.  He noted that he was ridiculed for his insomnia and had to stand in front of the class throughout the class period.  The examiner concluded the Veteran's statements appeared to be credible, although in truth this is a legal (factual), rather than medical, determination.  In any event, following the mental status evaluation, the examiner diagnosed anxiety disorder and opined that the onset of the Veteran's anxiety was during his service.  The examiner stated that a sleep disorder was also an extremely common symptom of an anxiety disorder.  Due to the anxiety, the Veteran may ruminate at night and, because of the increased arousal, have difficulty sleeping.  Therefore, the examiner noted that a sleep disorder was not generally considered a separate disorder but was actually a symptom of the mental disorder already found, namely, the anxiety disorder.  According to the examiner, sleepwalking was a more unusual feature that did not occur with great regularity.  However, sleepwalking had multiple causes as well.  Sometimes, it was a side effect of medications.  Given that there were multiple causes for sleepwalking, the examiner indicated he could not provide an opinion without resorting to mere speculation as to whether the Veteran's sleepwalking was related to his military service.

In the December 2012 decision, the Board granted service connection for anxiety disorder with chronic sleep impairment.  The Board primarily based its decision on the November 2011 VA psychological examination report and February 2012 addendum to that report.  Thus, the issue that remains is whether the Veteran also has a current disability manifested by sleepwalking that is related to his period of service.  The examiner from the November 2011 VA psychological examination was unable to address this issue without resorting to mere speculation.  A finding of service connection may not be based on a resort to speculation or even remote possibility.  See 38 C.F.R. § 3.102 (2013).


Statements that are inconclusive as to the origin of a disorder generally cannot be employed as suggestive of a linkage between the disorder and the Veteran's military service.  See Warren v. Brown, 6 Vet. App. 4, 6 (1993); Sklar v. Brown, 5 Vet. App. 104, 145-6 (1993).  However, these types of opinions also cannot be used to rule out this purported correlation, either.  Ultimately, noncommittal opinions like this amount to "nonevidence," neither for nor against the claim, because service connection may not be based on speculation or remote possibility.  See generally Bloom v. West, 12 Vet. App. 185 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty).  See also 38 C.F.R. § 3.102 (when considering application of the benefit-of-the-doubt doctrine, reasonable doubt is one within the range of probability, as distinguished from pure speculation or remote possibility).

Indeed, in past decisions the Court also had held that saying a condition "may" be related to the Veteran's military service is tantamount to saying it just as well "may not" be related to his service, so, because of this equivocality, also an insufficient basis to grant service connection.  See Obert v. Brown, 5 Vet. App. 30 (1993); Tirpak v. Derwinski, 2 Vet. App. 609 (1992); Winsett v. West, 11 Vet. App. 420 (1998).

An etiological opinion, however, has to be viewed in its entire context and not characterized solely by the medical professional's choice of words.  See Perman v. Brown, 5 Vet. App. 237, 241 (1993); Lee v. Brown, 10 Vet. App. 336, 338 (1997).

Moreover, additional precedent cases have been more recently issued shedding further light on how to properly assess and determine the probative value of these noncommittal opinions.  Notably for instance, in Hogan v. Peake, 544 F.3d 1295 (Fed. Cir. 2008), the Federal Circuit Court indicated a determination regarding service connection requires consideration of all pertinent medical and lay evidence, including medical opinions that do not state definitively when a particular disorder or condition began; therefore, classifying a medical opinion as "non-evidence" is "troubling."  In Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009), the Federal Circuit Court more recently held that an examiner's statement, which recites the inability to come to an opinion, provides neither positive nor negative support for service connection; therefore, it is not pertinent evidence regarding service connection.  The remainder of the report, however, must be considered as evidence of whether the disability was incurred in service.

An even more recent precedent case also admonished the Board for relying on medical opinions that also were unable to establish this required linkage, without resorting to mere speculation, as cause for denying the Veteran's claims.  See Jones v. Shinseki, 23 Vet. App. 382 (2010).  In Jones, the Court noted it was unclear whether the examiners were unable to provide this requested definitive medical comment on etiology because they actually were unable to since the limits of medical knowledge had been exhausted or, instead, for example, needed further information to assist in making this determination (e.g., additional records and/or diagnostic studies) or other procurable and assembled data.  The Court in Jones acknowledged there are instances where a definitive opinion cannot be provided because required information is missing or can no longer be obtained or current medical knowledge yields multiple possible etiologies with none more likely than not the cause of the claimed disability.  See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (noting the Board need not obtain further medical evidence where the medical evidence "indicates that determining the cause is speculative").  The Court in Jones held, however, that in order to rely upon a statement that an opinion cannot be provided without resort to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record.

The Court has held that, once VA undertakes the effort to provide an examination for 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.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence ... is essential for a proper appellate decision").  See, too, 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").  Furthermore, VA must ensure that any medical opinion, including one that states no conclusion can be reached without resorting to speculation, is "based on sufficient facts or data."  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2009).  Therefore, it must be clear, from either the examiner's statements or the Board decision, that the examiner has indeed considered "all procurable and assembled data," by obtaining all tests and records that might reasonably illuminate the medical analysis.  Daves v. Nicholson, 21 Vet. App. 46, 51 (2007).  When the record leaves this issue in doubt, it is the Board's duty to remand for further development.  The examiner may also have an obligation to conduct research in the medical literature depending on the evidence in the record at the time of examination.  See Wallin v. West, 11 Vet. App. 509, 514 (1998).

The Jones Court acknowledged that an "examination is not inadequate merely because the examiner states he or she cannot reach a conclusion without resort to speculation."  Jones, 23 Vet. App. at 391.  The Court also found that "VA is not bound to proceed through multiple iterations of medical opinions until it declares that no further examinations would assist the claimant[,]" which, in the Court's view, was "inherent in a finding that the duty to assist has been fulfilled."  Id.  The Court in Jones explained that the duty to assist, rather, requires VA to obtain all relevant information that may reasonably be obtained before the Board may rely on a VA medical examiner's opinion to deny a claim and enumerates the steps under which the duty to assist may apply.  Id., at 388.  The Court first found that the duty to assist applies when "an examiner specifically identifies additional information that would facilitate a more conclusive opinion."  The Court then found that "it must be clear on the record that the inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion."  Id., at 389.


The Court in Jones went on to point out that, while an opinion that diagnosis or etiology was not possible without resorting to speculation was just as much a medical conclusion as a firm diagnosis or a conclusive opinion, a bald statement that it would be speculative to render an opinion as to etiology or diagnosis was ambiguous and, thus, it must be clear that the examiner has considered "all procurable and assembled data," by obtaining all relevant tests and records that might reasonably illuminate the medical analysis.  Id., at 390.

Accordingly, this remaining claim is again REMANDED for the following additional development and consideration:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  Make arrangements with the appropriate VA medical facility for the Veteran to be afforded another VA compensation examination by an examiner with appropriate expertise to determine the nature and etiology of any disability manifested by sleepwalking.  To facilitate provision of this opinion, the claims folder must be made available to the examiner for review of the relevant history.  All necessary diagnostic testing and evaluation should be performed, and all clinical findings reported in detail.

After a review of the examination findings and the relevant evidence of record, the examiner must respond to the following questions:

(i) Does the Veteran have a current disability manifested by sleepwalking?  If he does, specify the diagnosis.


(ii) If confirmed he has a current disability manifested by sleepwalking, what is the likelihood (very likely, as likely as not, or unlikely) it is related or attributable to his period of military service from January 16 to May 15, 1952, including especially to his claimed episodes of sleepwalking while in service that he cites as the reason for his premature discharge from service?  In making this necessary determination, the examiner MUST presume the Veteran entered service in sound condition and did not have a 
pre-existing disability manifested by sleepwalking.

*This opinion is needed in addition to the one already provided linking the Veteran's anxiety disorder and associated insomnia to this military service.  The earlier examiner indicated the insomnia and claimed disability manifested by sleepwalking are two different disorders, so not interrelated and presumably not both due to the anxiety disorder, rather, some other cause.  The earlier examiner also explained that sleepwalking may have multiple causes, so specification of these several possible causes would be helpful, including in terms of whether in this particular instance the Veteran's time in service is one of them, even if not the only cause.

The examiner is advised that the term "as likely as not" means at least 50-percent probability.  This term does not however mean merely within the realm of possibility.  Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against it.  Very likely and as likely as not support the posited causal relationship between the current disability and the Veteran's military service, whereas a conclusion this is unlikely obviously instead weighs against the claim.

If no link to military service is found, this should be expressly indicated but, more importantly, the examiner must discuss the underlying rationale of the opinion, regardless of whether it is favorable or unfavorable to the claim.  Merely the examiner saying he/she cannot respond without resorting to mere speculation will not suffice, unless there also is explanation as to why a response is not possible or feasible.

2.  Then readjudicate this remaining claim for a disability manifested by sleepwalking in light of this and all other additional evidence.  If this claim continues to be denied, send the Veteran another SSOC and give him opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this remaining claim.

He has the right to submit additional evidence and argument concerning this claim the Board is remanding.  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).



______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs