Citation Nr: 1519465 Decision Date: 05/06/15 Archive Date: 05/19/15 DOCKET NO. 13-12 001 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1974 to September 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board notes that in her Notice of Disagreement (NOD), the Veteran disagreed with a denial of service connection for posttraumatic stress disorder (PTSD), in addition to the denial of service connection for hearing loss and tinnitus. In April 2013, the RO issued a statement of the case (SOC) addressing all three issues. On April 26, 2013, the Veteran submitted a VA Form 9 (Appeal to the Board of Veteran's Appeals) in which she specifically indicated that she only wished to pursue an appeal of the denials of service connection for tinnitus and hearing loss. Thus, the Board finds that an appeal of the denial of entitlement to service connection for PTSD has not been perfected and is consequently not before the Board. 38 C.F.R. §§ 20.202, 20.300 (2014). In her April 2013 VA Form 9, the Veteran expressed her desire for a Board hearing at a local VA office. However, in August 2014, the Veteran indicated that she wished to withdraw her hearing request and have the Board consider the case on the merits. Thus, the Board deems the hearing request to be withdrawn. 38 C.F.R. § 20.704(d) (2014). REMAND VA's duty to assist requires it to provide a medical examination or obtain a medical opinion if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (A) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of a disability; (B) establishes that the Veteran suffered an event, injury, or disease in service; and (C) indicated that the claimed disability may be associated with the in-service event, injury, or disease. 38 C.F.R. § 3.159(c)(4)(i) (2014). Evidence of a current diagnosed disability, or persistent recurrent symptoms of a disability may be satisfied by medical or competent lay evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); See also Barr v. Nicholson, 212 Vet. App. 303 (2007) (finding that lay testimony is competent to establish the presence of observable symptomatology). Thus, the mere fact that a Veteran filed a claim may be sufficient to satisfy the first element in providing an examination. Evidence of an event, injury, or disease in service is a classic factual assessment involving the weighing of facts. McLendon v. Nicholson, 20 Vet. App. 79, 82 (2006). A lack of contemporaneous medical records in service is not, on its own, a sufficient basis on which to find that such an event, injury or disease did not occur. See Buchanan v. Nicholson, 451 F.3d 1311 (Fed. Cir. 2006). A lay person is competent to provide evidence of that which they have actually observed, and is within the realm of personal knowledge. Layno v. Brown, 6 Vet. App. 465, 471 (1994). Finally, the Board notes that the requirement that a disability "may be associated" with service is a "low threshold" standard. McLendon, 20 Vet. App. at 83. The law requires competent evidence of a disability or symptoms of a disability, but it does not require competent evidence of a nexus, only that the evidence indicated an association between the disability and service or another service-connected disability. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Here, the Veteran has not been provided a VA examination in connection with either her tinnitus or hearing loss claims. However, in light of the evidence of record, the Board is satisfied that the duty to provide such an examination has been triggered. Specifically, a Veteran is competent to testify to in-service acoustic trauma, in-service symptoms of tinnitus, and post-service symptoms of tinnitus, "because ringing in the ears is capable of lay observation." Charles v. Principi, 16 Vet. App. 370, 374 (2002). Thus, the duty to provide a VA examination concerning the Veteran's tinnitus claim has clearly been triggered. Concerning the claim for hearing loss, the Board notes that lay evidence may be competent on a variety of matters concerning the nature and cause of a disability. See Jandreau, 492 F.3d at 1377, n.4. While hearing loss for VA purposes requires certain audiological findings, as set forth in 38 C.F.R. § 3.385 (2014), a lay person is competent to provide testimony regarding symptoms of hearing loss that would, at the very least, trigger the need to provide a VA examination. See Layno, supra. Thus, because the Veteran has asserted symptoms of hearing loss, and has asserted that she was required to work near generators and autoclaves which exposed her to persistent high frequency noises, as well as being exposed to generator noise without ear protection, the Board finds that a VA examination must be obtained. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an audiological examination. All appropriate tests and studies should be performed and all clinical findings reported in detail. The claims file and a copy of this remand must be made available to and be reviewed by the examiner in conjunction with the examination. Additionally, the examiner should elicit from the Veteran a thorough history of symptoms relating to her claimed hearing loss and tinnitus. If, following a complete review of the Veteran's claims file and audiological testing, a medical diagnosis of hearing loss and/or tinnitus is given, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's hearing loss disability and/or tinnitus is associated with her military service, to include any in-service noise exposure. In addressing this matter, the examiner must consider the Veteran's lay statements regarding noise exposure. The examiner should provide a complete rationale for any opinion provided and support any opinion given with citation to evidence in the record, medical treatise evidence, or known medical principles. (Any negative opinion that relies solely upon a lack of diagnosis or treatment for hearing loss or tinnitus in the Veteran's service treatment records will be deemed inadequate.) If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reason for this inability and comment on whether any further tests, evidence, or information would be useful in rendering a further opinion. 2. After undertaking any other development deemed appropriate, the originating agency should then readjudicate the issues on appeal. If a benefit sought remains denied, issue a supplemental statement of the case and provide the Veteran and her representative with the requisite period of time to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 2014). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).