Citation Nr: 1335886	
Decision Date: 11/05/13    Archive Date: 11/13/13

DOCKET NO.  10-16 238	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1.  Entitlement to service connection for a bilateral hearing loss disability.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service connection for an acquired psychiatric disorder, to include a major depressive disorder and anxiety, including as secondary to service connected disabilities.


ATTORNEY FOR THE BOARD

Luke McCabe, Associate Counsel




INTRODUCTION

The Veteran served on active duty from December 1968 to July 1970.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which, in relevant part, denied the benefits sought on appeal. 

The Board notes that in his original July 2008 claim, the Veteran indicated that he was seeking service connection for a nervous condition, and that in the February 2009 rating decision, his claim was adjudicated as a claim of entitlement to service connection for a major depressive disorder.  A review of the record, however, reveals that he has multiple psychiatric diagnoses, to include, a major depressive disorder and anxiety.  The United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record.  See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009).  Therefore, the Board has recharacterized the Veteran's claim as a claim for service connection for an acquired psychiatric disorder, to include a major depressive disorder and anxiety, including as secondary to service-connected disabilities, as set forth on the title page.

The Board remanded these claims in December 2011 and November 2012 for further development.  The claims now return for appellate review.  

However, because still further development is required with respect to the issues of entitlement to service connection for tinnitus and an acquired psychiatric disorder, these claims are addressed in the REMAND portion of the decision below and are again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.



FINDING OF FACT

Hearing loss did not manifest during active military service or within one year of service separation, and the preponderance of the evidence weighs against a relationship between the Veteran's current bilateral hearing loss disability and in-service hazardous noise exposure. 


CONCLUSION OF LAW

A bilateral hearing loss disability was not incurred in or aggravated by active service, and the criteria for presumptive service connection have not been satisfied.  38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2013). 


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision.  See 38 U.S.C.A. § 7104(d)(1) (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  While the Board must review the entire record, it need not discuss each piece of evidence.  See id.  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant).  

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995).  The standard of proof to be applied in decisions on claims for veterans' benefits is the benefit-of-the-doubt rule 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 the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must weigh against a claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).

I.  Procedural Duties

A.  Duties Under the Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002)), sets forth VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  

i.  Duty to Notify

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In order to satisfy its duty to notify the claimant under the VCAA, the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  

All notice under the VCAA should generally be provided prior to an initial decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  However, the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006).  

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), the Court held that a claim of entitlement to service connection consists of five elements: (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.  Notifying the claimant of what evidence is necessary to substantiate the claim under U.S.C.A. § 5103(a), the first notice element in Quartuccio, requires notice of these five elements.  See id. at 486; Quartuccio, 16 Vet. App. at 187. 

Here, prior to the initial rating decision in this matter, an August 2008 letter informed the Veteran of all five elements of service connection, gave examples of the types of evidence the Veteran could submit in support of his claim, and provided notice of the Veteran's and VA's respective responsibilities for obtaining relevant records on his behalf.  Therefore, the duty to notify has been satisfied.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

ii.  Duty to Obtain Records

VA's duty to assist under the VCAA includes helping the claimant to obtain service treatment records and other pertinent records, as well as providing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  

Here, the Veteran's service treatment records and VA medical records are in the file.  Private medical records identified by the Veteran have also been associated with the file.  The Veteran has not identified any other records or other relevant evidence that has not been obtained.  Thus, the duty to assist has been satisfied with respect to obtaining relevant records on the Veteran's behalf.  See 38 C.F.R. § 3.159(c).  



iii.  Duty to Provide an Examination

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law.  See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate, and need not affirmatively establish the adequacy of the examination report or the competence of the examiner.  Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged).  Id.

Here, the RO provided the Veteran with an appropriate audiological examination for his hearing loss claim in December 2012.  The VA examination is adequate for deciding this claim.  Specifically, the examiner reviewed the claims file and medical history, examined the Veteran, and provided an explanation for the opinion stated which enables the Board to make an informed decision.  See Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion" even when the rationale does not explicitly "lay out the examiner's journey from the facts to a conclusion") (citing Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners)); see also D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an examination is adequate when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one).  There are no apparent inconsistencies or ambiguities in the examination report, and the Veteran has not challenged its adequacy or thoroughness, or the competency of the examiner.  See Sickels, 643 F.3d at 1365-66; Rizzo, 580 F.3d at 1290-1291.  Accordingly, VA's duty to provide a VA examination is satisfied.  See 38 C.F.R. §§ 3.159(c)(4); 3.326(a); McLendon, 20 Vet. App. at 83; Barr, 21 Vet. App. at 312. 

iv.  VCAA Conclusion

In sum, VA's duties to notify and assist under the VCAA have been satisfied.  The Veteran has had ample opportunity to participate in the development of his claim.  See Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011) (citing Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that any error depriving a claimant of "a meaningful opportunity to participate effectively in the processing of his or her claim . . . . must be considered prejudicial")).  As shown above, any defect in the notice or assistance provided did not affect the outcome of this claim or compromise the "essential fairness of the adjudication," and no such defect has been alleged.  See Mayfield v. Nicholson, 19 Vet. App. 103, 116 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  Thus, any error in the notice or assistance provided was harmless, and no prejudice exists.  See Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009) (holding that the "rule of prejudicial error" requires a case-by-case determination as to whether the error in question was harmless, and that it is the burden of the claimant to show that the error was harmful by at least providing an explanation as to how the error caused harm); see also 38 U.S.C.A. § 7261(b)(2) (West 2002) (providing that the Court must take due account of the rule of prejudicial error).  Accordingly, the Board may proceed with appellate review.

B.  Compliance with the Board's Prior Remand Directives

The Board remanded the Veteran's service connection claim for hearing loss in November 2012 to obtain additional VA treatment records and to provide a new VA examination and an opinion regarding the nature and etiology of the Veteran's hearing loss based on all the evidence of record.  In Stegall v. West, 11 Vet. App. 268, 271 (1998), the Court held that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand.  See D'Aries, 22 Vet. App. at 105 (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall).

Here, the RO obtained the Veteran's recent VA treatment records.  Furthermore, an adequate VA audiological examination responsive to the Board's remand directives was performed in December 2012, as discussed above, followed by readjudication of the claims in a March 2013 supplemental statement of the case (SSOC).  Thus, there has been substantial compliance with the Board's remand directives.  See id.

II.  Analysis

The Veteran claims entitlement to service connection for a bilateral hearing loss disability, asserting that it is related to hazardous noise exposure during service.  For the following reasons, the Board finds that service connection is not warranted.  

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

Entitlement to service connection may be established on a direct basis with evidence showing (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement).  See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); C.F.R. § 3.303(a).  

For the chronic diseases listed in 38 C.F.R. § 3.309(a) (2013), the evidentiary requirements for establishing entitlement to service connection benefits are more relaxed.  Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that "[t]he clear purpose of [subsection 3.303(b)] is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases," and only applies to the chronic diseases set forth in § 3.309(a)).  Specifically, § 3.303(b) provides that 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").  If the evidence is not sufficient to show that the disease was chronic at the time of service, then the claim may be established with evidence of a continuity of symptoms after service, which is a distinct and lesser evidentiary burden than the nexus element of the three-part test under Shedden.  Walker, 708 F.3d at 1338; C.F.R. § 3.303(b).  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 a] presumptive period."  Walker, 708 F.3d at 1338-39 (observing that a claim for a chronic disease "benefits from presumptive service connection . . . or service connection via continuity of symptomatology").

Because the Veteran has been diagnosed with bilateral sensorineural hearing loss, and sensorineural hearing loss is defined as a chronic disease in section 3.309(a), the provisions of subsection 3.303(b) for chronic diseases apply, and the claim may be established with evidence of a chronicity in service or a continuity of symptomatology after service.  See Walker, 708 F.3d at 1338-1339.  In addition, where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection for sensorineural hearing loss may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307; 3.309(a).  This presumption may be rebutted by affirmative evidence to the contrary.  38 C.F.R. § 3.307(d). 

With regard to the first Shedden element, evidence of a current disability, impaired hearing will be considered to be a disability under the laws administered by VA when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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.  The Court has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  The auditory thresholds set forth in 38 C.F.R. § 3.385 establish when hearing loss is severe enough to be considered a disability eligible for service connection.  Hensley, 5 Vet. App. at 157, 159.

The Board finds that a current bilateral hearing loss disability has been established. Specifically, the December 2012 audiological examination reflects an audiogram showing puretone thresholds, in decibels, as follows:


HERTZ

500
1000
2000
3000
4000
RIGHT
20
15
20
50
45
LEFT
15
15
55
55
60

Because the Veteran had puretone thresholds of 40 decibels or higher in both ears, a current bilateral hearing loss disability is established.  38 C.F.R. § 3.385; Hensley, 5 Vet. App. at 157, 159.

The Veteran argues that his hearing loss was caused by hazardous noise exposure during active service.  In this regard, where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by the Veteran's service record, the official history of each organization in which the Veteran served, the Veteran's medical records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a) (West 2002).  When an injury is incurred in combat, satisfactory lay or other evidence will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation.  38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2013).  This presumption may be rebutted only by clear and convincing evidence.  Collette v. Brown, 82 F.3d 389, 393 (Fed.Cir.1996). 

The Veteran has not argued and the evidence of record does not otherwise show that he had combat service.  Thus, the more relaxed evidentiary standard accorded combat-related injuries does not apply.  See 38 U.S.C.A. § 1154(b).  Nevertheless, the Board finds that in-service hazardous noise exposure has been established based on the Veteran's military occupational specialty (MOS) as a light weapons infantryman, which has been determined by the Department of Defense to involve a high probability of hazardous noise exposure.  See Duty MOS Noise Exposure Listing; see also VA Fast Letter 10-35 (September 2, 2010).  Accordingly, the Board finds that hazardous noise exposure during active service has been established.  See 38 U.S.C.A. § 1154(a).

The competent evidence of record weighs against a relationship between the Veteran's hearing loss and his in-service noise exposure.  In this regard, the Veteran's service treatment records do not show that he sustained any hearing loss during service.  Specifically, the Veteran's December 1968 entrance examination reflects an audiogram showing puretone thresholds, in decibels, as follows:


HERTZ

500
1000
2000
3000
4000
RIGHT
0
0
0
/
0
LEFT
0
0
0
/
15

The Veteran's puretone thresholds at 3000 Hertz were not recorded.  This audiogram shows normal hearing at entrance.  See 38 C.F.R. § 3.385; Hensley, 5 Vet. App. at 157, 159. 

No separation examination is available for the Veteran.  However, the Veteran's June 1970 report of medical history that he completed in advance of his separation reflects that he denied a history of hearing problems prior to or during service.  Additionally, the Veteran's post-service treatment records are silent as to treatment or complaints of hearing loss until March 2006, when it was noted that the Veteran presented with hearing loss found to be severe by a private treatment provider.  He was diagnosed with bilateral hearing loss at this time.  May 2003 VA treatment records show that the Veteran's ears were noted to be negative for hearing loss.  Furthermore, a March 2006 VA treatment record shows a history of chronic ear infections, and an April 2006 VA treatment record shows that the Veteran underwent a right-ear myringotomy and tube insertion.

At the December 2012 VA audiological examination, the Veteran reported a history of ear pathology and a history of occupational noise exposure as an industrial mechanic for twenty five years.  After reviewing the claims file and examining the Veteran, the examiner diagnosed bilateral sensorineural hearing loss.  The examiner opined that it was more likely caused by years of fluctuating middle ear pathology, post-service occupational noise exposure as an industrial mechanic, and to the expected changes in hearing levels that occur with the normal aging process.  The examiner explained that the Veteran's entrance examination showed normal hearing at all test frequencies in both ears, that the Veteran's treatment records were silent as to any complaint or treatment of hearing loss in the thirty-eight years since the Veteran separated from service, and that "retroactive hearing effect" is not expected so many years after noise exposure.  For these reasons, the examiner concluded that it was less likely than not that the Veteran's hearing loss was related to acoustic trauma or noise exposure during his active military service.  

The Board has considered the Veteran's indication in his July 2008 claim for service connection that his hearing loss began in 1969, i.e. during active service, and whether a continuity of symptomatology can be established to support a link between the Veteran's hearing loss and his period of service.  See 38 C.F.R. § 3.304.  The Veteran is competent to provide a history of his hearing loss, including when he first noticed decreased hearing.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that lay evidence can be competent with respect to both the diagnosis and the etiology of a disability); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that appellant was competent to testify as to factual matters of which he had first-hand knowledge).  However, the Board does not find the Veteran's statements to be credible in this regard.  See Caluza, 7 Vet. App. at 506 (holding that the Board must assess the credibility and weight of the evidence); see also Layno v. Brown, 6 Vet. App. 465, 469 (holding that the weight and credibility of testimony, as distinguished from its competency, is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted); accord Rucker v. Brown, 10 Vet. App. 67, 74 1997).  Specifically, the Veteran's contention in his claim that his hearing loss began in service is inconsistent with his denial of hearing loss in the June 1970 report of medical history, which has more probative value than his current statements.  See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant).  It is also inconsistent with the May 2003 VA treatment record, which was specifically negative for hearing problems.  Therefore, the Board does not find the Veteran's lay assertions that hearing loss manifested in active service or has been present ever since service to be credible.  See Caluza v. Brown, 7 Vet. App. at 511 (holding that when determining whether lay evidence is satisfactory, the Board may properly consider, among other things, its consistency with other evidence submitted on behalf of the Veteran); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (holding that 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).

In carefully reviewing the record, the Board finds that the preponderance of the evidence weighs against a relationship between the Veteran's bilateral hearing loss disability and his period of service.  As noted above, the Veteran's service treatment records show normal hearing during active service.  The VA examiner found in the December 2012 VA examination report that notwithstanding the Veteran's in-service hazardous noise exposure, his hearing loss was not related to service given the fact that his hearing was normal at entrance, given the thirty-eight year silence in the Veteran's post-service medical treatment records, and considering his twenty-five years of occupational noise exposure as an industrial mechanic, as well as the normal aging process and the Veteran's history of middle ear pathology.  See Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  The Board finds this opinion is highly probative as it represents the findings of a medical professional specializing in audiology who reviewed the claims file, including the service treatment records and post-service medical evidence, examined the Veteran, and provided an explanation for her conclusion based on the evidence of record.

The Board has also considered the Veteran's contention that his hearing loss was caused by hazardous noise exposure during active service.  In this regard, the Veteran is competent to testify as to matters within his experience and personal knowledge, such as his symptoms and medical history.  See Davidson, 581 F.3d at 1316 (holding that lay evidence can be competent with respect to both the diagnosis and the etiology of a disability); Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the Board erred in categorically rejecting lay evidence); Washington, 19 Vet. App. at 368 (holding that appellant was competent to testify as to factual matters of which he had first-hand knowledge).  However, as a lay person, the Veteran does not have the medical training or expertise to provide a competent opinion as to whether his current disorder is related to his in-service hazardous noise exposure, as this is a medical determination that is too complex to be made based on lay observation alone.  See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007) (observing that a layperson can be competent to identify conditions that are simple, such as a broken leg, but is not competent to identify more complex conditions such as a form of cancer); Barr, 21 Vet. App. at 309 (holding that lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are "medical in nature"); see also Layno v. Brown, 6 Vet. App. 465, 469- 71 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration, and that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise).  Thus, the Veteran's opinion that his bilateral hearing loss disability is related to noise exposure in service is not competent and cannot by itself support his claim.  See id. at 470 (holding that incompetent testimony must be excluded from the Board's consideration).  Moreover, it is outweighed by the VA examiner's findings to the contrary.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's finding that the Board did not improperly discount the probative value of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation).

Accordingly, the third Shedden element is not satisfied.  See Shedden, 381 F.3d at 1166-67.  Therefore, the Board finds that service connection for hearing loss is not warranted on a direct basis.  See id.

Because there is no competent or credible evidence showing that hearing loss manifested to a compensable degree within one year of separation from active service, service connection is also not warranted on a presumptive basis.  See 38 C.F.R. §§ 3.307, 3.09.

Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim.  Consequently, the benefit-of-the-doubt rule does not apply, and service connection for a bilateral hearing loss disability must be denied.  See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 5.


ORDER

Entitlement to service connection for bilateral hearing loss is denied.


REMAND

Although the Board sincerely regrets the further delay, another remand is required in this appeal to pursue additional development to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration.

The Veteran contends that he incurred tinnitus as a result of noise exposure while serving along the DMZ in Korea.  He additionally contends that he incurred an acquired psychiatric disorder as secondary to the disabilities that he claims to have incurred directly as a result of his active service.  

With respect to the Veteran's tinnitus claim, the Board remanded this claim in December 2011 and November 2012 for further development.  Specifically, the November 2012 Board decision remanded the tinnitus claim for a medical examination to properly diagnose the Veteran's tinnitus and to provide an opinion on its nature and etiology.  In the resulting December 2012 VA examination report, the examiner stated that she was unable to provide an opinion because the Veteran did not report or complain of tinnitus at the time of the examination.  In this regard, the Board notes that tinnitus is defined as "a noise in the ears such as ringing, buzzing, roaring, or clicking."  Smith v. Principi, 17 Vet. App. 168, 170 (2003) (quoting DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (hereinafter DORLAND'S) 1714 (28th ed. 1994)).  It is generally subjective in type.  DORLAND'S, 1956 (31st ed. 2007).  Because tinnitus is subjective, its existence is generally determined by whether or not the veteran claims to experience it.  Thus, for VA purposes, tinnitus is a disorder with symptoms that can be identified through lay observation alone.  Barr, 21 Vet. App. at 309; Charles v. Principi, 16 Vet. App. 370 (2002). 

The Board finds that the Veteran is competent and credible to report that he has tinnitus, which he did in his July 2008 claim, stating that his tinnitus began in 1969, during his period of active service.  See id.  Therefore, the December 2012 examination report is not sufficient for determining the diagnosis and etiology of the Veteran's claimed tinnitus in light of the competent evidence that the Veteran has had tinnitus during the pendency of this claim.  See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that service connection may be granted for a disability that manifests at any point during the pendency of a claim, even if it subsequently resolves prior to resolution of the claim); see also Barr, 21 Vet. App. at 311 (once VA undertakes an examination, even if not required to do so, an adequate one must be produced).   

Accordingly, on remand, a new VA opinion should be obtained regarding the nature and etiology of the Veteran's claimed tinnitus based on all the evidence of record.  See 38 C.F.R. § 4.2 (2013) (stating that if the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes); see also Barr, 21 Vet. App. at 311.  The examiner should note that the Veteran's in-service hazardous noise exposure has been established based on the Veteran's military occupational specialty (MOS) as a light weapons infantryman, which has been determined by the Department of Defense to involve a high probability of hazardous noise exposure.  See Duty MOS Noise Exposure Listing; see also VA Fast Letter 10-35 (September 2, 2010).  If the examiner determines that the Veteran's tinnitus manifested some time after service, the examiner should address the likelihood that a post-service onset of tinnitus may be related to in-service noise exposure based on the amount of time that elapsed prior to its manifestation.

The Veteran's service connection claim for an acquired psychiatric disorder is again deferred pending resolution of the tinnitus claim.  See Harris v. Derwinski, 1 Vet. App 180, 183 (1991) (two issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on the resolution of the second issue).

Accordingly, the case is REMANDED for the following actions, 

1.  Any outstanding VA treatment records from the VA Medical Center (VAMC) in San Juan, Puerto Rico dated since August 2013 should be associated with the claims file.

2.  The Veteran should be scheduled for a VA audiological examination to assess the nature and likely etiology of his tinnitus.  The entire claims file and a copy of this REMAND must be made available to the examiner prior to the examination.  The examiner must note in the examination report that the evidence in the claims file has been reviewed. 

After reviewing the file and examining the Veteran, the examiner should render an opinion as to whether the Veteran's tinnitus is at least as likely as not (i.e., to at least a 50:50 degree of probability) a result of his established hazardous noise exposure during active military service, or whether such a relationship is unlikely (i.e., less than a 50:50 degree of probability).  

In providing this opinion, the examiner should note that the Veteran's tinnitus is established by virtue of his July 2008 claim, and also that the Veteran's in-service hazardous noise exposure is established by virtue of his MOS as a light weapons infantryman.  

The examiner must provide a complete explanation for the opinion reached. 

The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 

3.  Next, review the medical examination report to ensure that the opinion provided is adequate.  The case should be returned to the examiner if all questions posed are not answered.

4.  After the above development is completed, and any other development that may be warranted based on any additional information or evidence received, the AOJ should readjudicate the claims on the merits.  If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

No action is required of the Veteran until further notice.  His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated.  He is also advised that failure to report for any scheduled examination may result in the denial of a claim.  38 C.F.R. § 3.655 (2013).  

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. 2013).



____________________________________________
P. M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs