Citation Nr: 1337832 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 13-12 655 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Jenkins, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1966 to September 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The December 2011 rating decision denied entitlement to service connection for bilateral hearing loss and tinnitus. Subsequent to the December 2011 rating decision, the Veteran's representative submitted a letter requesting reconsideration of the Veteran's claims. The representative asserted that the December 2011 VA examination was inadequate. The RO requested another VA examination, and thereafter re-adjudicated the Veteran's bilateral hearing loss claim in a June 2012 rating decision, which confirmed and continued the December 2011 denial of the Veteran's claim for entitlement for service connection for bilateral hearing loss. The issue of entitlement to service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. FINDING OF FACT The most probative evidence of record reflects a current diagnosis of tinnitus, as well as competent and credible reports of frequent and persistent symptomology congruent with this diagnosis dating back to the Veteran's active service. CONCLUSION OF LAW Resolving the benefit of the doubt in the Veteran's favor, the criteria for service connection, for tinnitus, have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.159 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Assist and Notify In this decision, the Board grants entitlement to service connection for tinnitus, which constitutes a complete grant of the Veteran's claim. Therefore, no discussion of VA's duty to notify or assist is necessary. Tinnitus Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1110 (West 2002 & 2013); 38 C.F.R. § 3.303 (2013). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). Competency is a legal concept and threshold question in determining whether lay or medical evidence may be considered. In other words, competency addresses whether the evidence is admissible, as distinguished from weight and credibility, which is a factual determination going to the probative value of the evidence; that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). 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 layperson. 38 C.F.R. § 3.159 (2013); see also Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (noting that lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159 (2013). Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran claims that his current diagnosis of tinnitus is related to his period of active service, including in-service noise exposure. The Veteran's service treatment records are devoid of any instance of complaints of or treatment for symptomatology congruent with tinnitus, and he was not diagnosed with such during his active duty. However, the Veteran's DD Form 214 shows that his specialty was as a helicopter mechanic, which is an occupation traditionally associated with a high probability of in-service noise exposure. At the December 2011 VA audiology examination, the Veteran stated that he was exposed to gunfire and helicopter noise without the use of hearing protection. The Veteran reported that he had intermittent tinnitus in both ears, which occurred whenever he was in a quiet environment. The Veteran described his tinnitus as a roaring sound and reported that he first noticed his tinnitus while flying in the military. The Veteran also reported that he used a "masker" at night while sleeping, to help mask the noise. A layperson is capable of observing tinnitus. Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Board finds that the Veteran is competent to report what he can perceive through his senses. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Board finds that the statements by the Veteran regarding his noise exposure and tinnitus are consistent with the evidence of record. Accordingly, the Board finds that his statements are credible. Specifically, the Board finds that the Veteran is competent and credible to report that he experienced in-service noise exposure and that he experienced ringing in his ears during active service. In light of above, elements (1) and (2) have been demonstrated. Concerning element (3), evidence of a nexus between the Veteran's currently diagnosed tinnitus and his in-service noise exposure, the Board notes that there is a negative nexus opinion of record. The December 2011 VA audiologist opined that since the Veteran had normal hearing sensitivity at separation and no complaints of tinnitus were documented during active service, the Veteran's tinnitus was not as likely as not related to his military service. However, the Board finds deficiencies in the VA examiner's rationale. In determining that the Veteran's tinnitus was not related to his military service, the December 2011 VA examiner reasoned that the Veteran's service treatment records did not document tinnitus. This opinion improperly relied solely on negative evidence as its basis. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that the lack of documentary evidence during or after service cannot be the sole basis for an opinion against the claim). Additionally, by declining to afford the proper weight to the Veteran's lay assertions, regarding onset of tinnitus and continuing symptomology, the examiner rendered opinions that are based on an incomplete history of the case. In light of the above, the Board finds that the December 2011 VA opinion is inadequate for the Board to make an informed decision on the Veteran's claim. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (finding that an examination report is adequate where it describes the disability in sufficient detail so the Board can make a fully informed evaluation of the disability). Although an etiological relationship has not been demonstrated through the foregoing VA examination report, nor otherwise shown through competent medical opinion evidence, the absence of a "valid medical opinion" is not an absolute bar to service connection, particularly where, as here, the lay evidence of record is sufficient to satisfy the third and final Shedden prong. Davidson v. Shinseki, 581 F.3d at 1316. After a careful review of the record, and resolving all doubt in favor of the Veteran, the Board finds, based upon the medical and satisfactory lay evidence set forth above, that the Veteran's current tinnitus was incurred during his active service. As noted above, the Veteran currently has tinnitus and was exposed to acoustic trauma during service. The Board finds his report of having experienced tinnitus symptoms during active service to be competent and credible evidence of continuing tinnitus symptoms during and since active service. The Veteran's account, in addition to the other aforementioned evidence of record, meets the nexus criteria outlined in 38 C.F.R. § 3.303(d) (2013) as it indicates that his tinnitus is causally related to the in-service acoustic trauma. Thus, resolving all reasonable doubt in favor of the Veteran, service connection for tinnitus is warranted. 38 C.F.R. § 3.102 (2013). See also 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2013); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for tinnitus is granted. REMAND After review of the record, the Board concludes that a remand is necessary so that VA may fulfill its duty to assist the Veteran in substantiating his claim for service connection for bilateral hearing loss. The Veteran contends that he was exposed to loud noise during service and that his bilateral hearing loss is the result of that noise exposure. The Board concludes that the December 2011 and March 2012 VA audiological examinations are inadequate for adjudicating the Veteran's claim of entitlement to service connection for bilateral hearing loss. In December 2011, the Veteran underwent a VA audiological examination in connection with the claim on appeal. Audiometric testing revealed that the Veteran's pure tone thresholds reflected a bilateral hearing loss disability for VA purposes under the requirements of 38 C.F.R. § 3.385 (2013). The VA audiologist noted that the Veteran's hearing was normal bilaterally at enlistment and discharge, and that the Veteran denied any hearing loss or ear trouble on his enlistment and separation questionnaires. The audiologist noted that the Veteran's service treatment records reflected that in November 1966, he was treated for a cerumen impaction. The audiologist also noted that the Veteran reported a history of civilian noise exposure. Therefore, the VA audiologist reasoned that the Veteran's hearing loss was not at least as likely as not related to his military service. However, the United States Court of Appeals for Veterans Claims Court (Court) has held that the lack of in-service evidence of hearing loss is not fatal to a claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Accordingly, the Board finds the December 2011 audiologist's opinion to be inadequate for the purpose of adjudicating the Veteran's claim for entitlement to service connection for bilateral hearing loss. The Board notes that the Veteran was provided with another VA audiological examination in March 2012. However, the audiologist concluded that the Veteran's audiological test results were inconsistent and did not appear to reflect maximal effort. The audiologist noted that the Veteran was reinstructed and encouraged throughout testing with no improvement. The audiologist stated that she considered the results invalid and unreliable and therefore did not provide the test results or provide an etiology opinion. Accordingly, the March 2012 audiological examination report is also inadequate for adjudicating the Veteran's bilateral hearing loss claim. The Board finds that it is unclear whether the Veteran was intentionally refusing to cooperate at the March 2012 VA audiology examination. Accordingly, the Board believes that he should be provided with an additional audiological examination. The Board notes that the Veteran has a duty to cooperate in the development of his claim. Wood v. Derwinski, 1 Vet. App. 191 (1991) (noting that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."); see also Hayes v. Brown, 5 Vet. App. 60, 68 (1993). Absent a showing of good cause, a Veteran's refusal to participate or cooperate during a VA examination is akin to a failure to report for VA examination for purposes of VA regulations under 38 C.F.R. § 3.655 (2013). See generally VAOPGCPREC 4-91 (Feb. 13, 1991). As was noted by the Court, the failure by Veterans to cooperate during VA examinations "subject them[selves] to the risk of an adverse adjudication based on an incomplete and underdeveloped record." Kowalski v. Nicholson, 19 Vet. App. 171, 181 (2005). Accordingly, the case is REMANDED for the following actions: 1. The Veteran should be requested to identify any outstanding private medical treatment related to bilateral hearing loss. Request that the Veteran submit or authorize VA to obtain all outstanding private medical records of hearing assessments or treatment for hearing loss. Once authorization is obtained, the RO/AMC should take appropriate steps to secure copies of any identified and outstand medical records, including all VA treatment records and any private treatment records for which the Veteran has furnished the necessary authorization. If the RO is unable to obtain these records, the Veteran must be notified of this fact and all efforts to obtain them must be documented and associated with the claims file. 2. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of his claim. Additionally, inform the Veteran of the consequences for failure to report for a VA examination or failure to cooperate with the examiner. 38 C.F.R. §§ 3.158, 3.655 (2013). 3. Thereafter, the RO should schedule the Veteran for another VA audiological examination. The claims file and a copy of this remand must be made available to the examiner for review in connection with the examination. All audiological findings, including speech recognition scores using the Maryland CNC Test, should be reported. If a hearing loss disability is shown, then the examiner should indicate whether it is at least as likely as not (a 50% or higher degree of probability) that such hearing loss disability is causally related to the Veteran's active service, including presumed noise exposure during service. The examiner should note that in-service noise exposure is to be presumed. The examiner must provide complete rationales for all conclusions reached. In rendering the requested opinion, the examiner should note that lack of in-service evidence of hearing loss is not fatal to a claim for service connection. Evidence of a current hearing loss disability and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. In formulating the opinion, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. 4. Next, the RO should review the audiological examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the examiner for corrective action. 5. Finally, the RO should re-adjudicate the Veteran's claim. If the benefit sought on appeal remains denied, provide a Supplemental Statement of the Case to the Veteran and his representative, and an appropriate period of time in which to respond. Then, return the appeal to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ U.R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs