Citation Nr: 1619610 Decision Date: 05/05/16 Archive Date: 05/26/16 DOCKET NO. 14-04 821 DATE MAY 05 2016 On appeal from theDepartment of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Rothstein, Associate Counsel INTRODUCTION The Veteran had active duty service from February 1961 to July 1964. This appeal to the Board of Veterans' Appeals (Board) arose from a November 2012 rating decision in which the RO denied service connection for bilateral hearing loss and tinnitus. In December 2012, the Veteran filed a notice of disagreement (NOD) as to these denials. The RO issued a statement of the case (SOC) in December 2013, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in January 2014. A supplemental SOC (SSOC) was issued in May 2014. A VA Form 27-0820, Report of General Information, documents that, during n an August 2014telephone conversation, the Veteran requested a Board video­ conference hearing. In June 2015, the Board remanded the appeal to afford the Veteran a hearing. In January 2016, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. During the hearing, the undersigned agreed to hold the record open for 60 days for the submission of additional evidence. In January 2016 and February 2016, the Veteran submitted the evidence identified during the hearing, along with a waiver of initial RO consideration of the evidence. See 38 C.F.R. §§ 20.800, 20.1304 (2015). This appeal is now being processed utilizing the Veterans Benefits Management System (VBMS) and Virtual VA, paperless, electronic claims processing systems. The Board's decision on the claim for service connection for bilateral hearing loss is set forth below. The remaining claim for service connection for tinnitus is addressed in the remand following the order. This matter is being remanded to the agency of original jurisdiction (AOJ).. VA will notify the Veteran when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim for service connection for bilateral hearing loss have been accomplished. 2. The Veteran's assertions of in-service noise exposure are credible and consistent with the circumstances of his service. 3. The Veteran currently has bilateral hearing loss to an extent recognized as a disability for VA purposes, and there is competent medical and credible lay evidence tending to establish a link between the Veteran's service-particularly, noise exposure therein- and his current hearing loss. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss are met. 38 U.S.C.A. §§ 1131, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION At the outset, the Board notes that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015). Given the Board's favorable resolution of the claim for service connection for bilateral hearing loss, the Board finds that all necessary actions in connection with this claim have been accomplished. The Veteran contends that he is entitled to service connection for bilateral hearing loss due to the acoustic trauma he experienced during service. Specifically, he asserts that he was exposed to such noise during his service on a United States Navy aircraft carrier flight deck as an aviation electronics technician, for which he was not provided hearing protection, and that such exposure is the source of the condition for which service connection is sought. See January 2016 Board Hearing Transcript, at 5. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). 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 (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 v. Brown, 5 Vet. App. 155, 159 (1993). Thus, when testing results at the time of separation from service do not meet the requirements for establishing hearing loss under 38 C.F.R. § 3.385, service connection may still be established "by submitting evidence that the current disability is causally related to service." Id. at 160. Certain chronic diseases shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1133 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). Sensorineural hearing loss is considered an organic disease of the nervous system, which is identified as a chronic disease subject to presumptive service connection in 38 C.F.R. § 3.309(a). See VA Adjudication Procedure Manual, M21-1MR 111.iv.4.B.12.a. Considering the pertinent evidence in light of the governing legal authority, and resolving all reasonable doubt in the Veteran's favor on certain elements of the claim, the Board finds that service connection for bilateral hearing loss is warranted. First, as for the in-service injury or disease requirement, although there is no documented evidence of any specific incident of acoustic trauma, there is no real dispute that the Veteran likely had some in-service noise exposure. During the January 2016 hearing, the Veteran reported that during his service on an aircraft carrier, as an aviation electronics technician in the guided missile division, assembling, testing, and delivering to the flight deck missiles, he was exposed to a very noisy environment. See Transcript, at 5. The Veteran 's DD-Form 214 shows that he served as an aviation electronics technician aboard the USS Ticonderoga CVA-14. The Board finds that the Veteran is competent to assert the occurrence of an in­ service injury, to include in-service noise exposure. See Grottveit v. Brown, 5 Vet. App. 91 ( 1991). The Board further finds that, in this case, there is no reason to question the veracity of the Veteran's assertions in this regard. Thus, although there is no objective evidence to document a specific incident of acoustic trauma in service, the Board accepts the Veteran's assertions of in-service noise exposure, as described, to be credible and consistent with the circumstances of his service. See 38 U.S.C.A. § 1154. As for the requirement of current disability, impaired hearing will be considered a disability for compensation purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz is 40 dB or greater; or when the auditory thresholds for at least three of the frequencies are 26 dB or greater; or when speech recognition scores under the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In the present case, the audiograms of record, to include the most recent, January 2016 private audiogram, reflect that the Veteran has bilateral hearing loss to an extent recognized as a disability for VA purposes. Therefore, a current disability has been established. The remaining question, then, is whether the Veteran's current bilateral hearing loss is medically related to his in-service noise exposure. In this case, the record reflects two statements by competent professionals addressing the matter-one by provided by a VA examiner in October 2012 and the other by the Veteran's private physician in January 2016. The October 2012 VA examiner stated that she could not provide an opinion as to whether the Veteran's hearing loss was at least as likely as not (50 percent probability or greater) caused by or a result of an event in military service without resorting to speculation. The VA examiner provided the following reasons for such statement: active duty records did not show reports of hearing loss; November 2011 private audiogram indicated significant hearing loss for both ears with the physician's comment of a positive history of noise exposure on United States Navy flight deck; and a positive Stenger Test. In any event, the VA examiner, by concluding that the requested etiology opinion could not be provided "without resorting to speculation," essentially provided a non-opinion that weighs neither for nor against the claim (see, e.g., Jones v. Shinseki, 23 Vet. App. 382, 390 (2010)), and is therefore accorded no probative weight on the matter upon which this claim turns. Notably, the VA examiner did not definitively rule out a relationship between the Veteran's hearing loss and service. By contrast, in January 2016, following audiology examination, the Veteran's private ear, nose and throat (ENT) physician provided a supportive opinion regarding the etiology of the Veteran's hearing loss. The physician indicated that he had reviewed the Veteran's service treatment records and considered his lay statements. Ultimately, the physician opined that the Veteran's hearing loss was at least as likely as not related to service. In support of his opinion, the physician noted that the Veteran had a positive history of acoustic trauma in service, and that prior magnetic resonance imaging/magnetic resonance angiography of the brain revealed no aneurysm or other vascular abnormality as well as no Eustachian tube dysfunction. Significantly, this positive private opinion is the only actual medical opinion of record to address the etiology of the Veteran's hearing loss. Moreover, as the Board finds no sufficient basis to reject this supportive opinion, based on lack of credibility, or diminished probative value (see. e.g., Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997)), the Board also finds that no further evidentiary development in this regard is necessary. Cf Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). While the private physician's opinion is not definitive, it was written in terms sufficient to warrant application of the benefit-of-the-doubt doctrine. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 3.102; see also 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Given the totality of the evidence-to include credible lay assertions as to in-service injury (noise exposure) and the competent testing results and medical opinion evidence discussed above-and resolving all reasonable doubt in the Veteran's favor on certain elements of the claim, the Board finds that the criteria for service connection for bilateral hearing loss are met. ORDER Service connection for bilateral hearing loss is granted. REMAND Unfortunately, the Board finds that further AOJ action on the claim for service connection for tinnitus is warranted, even though such will, regrettably, further delay an appellate decision on this matter. As with hearing loss, the Veteran has asserted that his tinnitus is a result of his in­ service noise exposure during his service on a United States Navy aircraft carrier flight deck as an aviation electronics technician, for which he was not provided hearing protection. See Transcript, at 5. He further asserts that he has continued to experience ringing in his ears ever since service. See Transcript, at 8. He also stated that five years ago, he noticed that his tinnitus started to become modulated by his pulse. See Transcript, at 8. In an October 2012 VA opinion, the VA examiner concluded that it was less likely than not (less than 50 percent probability) that the Veteran's tinnitus was caused by or a result of military noise exposure. However, it appears that the examiner based his opinion predominately on the lack of documented tinnitus in service, as the relevance or import of the Veteran's lay statements regarding in-service noise exposure and continuity of symptoms was not specifically addressed. . . The Board notes that the examiner also provided the following notations under her rationale: "[p]ulsatile tinnitus reported 23 Nov 2011" and "[p]hysician requested special testing to determine etiology of tinnitus." However, these notations appear to merely list facts from the record, and it is unclear what the examiner was trying to express, if anything, regarding the import of these facts. In a January 2016 private opinion, the Veteran's private ENT physician concluded that, although the Veteran's pulsatile tinnitus was vascular and most likely not related to service, it was at least as likely as not that the Veteran's continuous tinnitus was related to service. However, unlike with respect to the Veteran's hearing loss, the examiner did not provide a rationale for his supportive opinion with respect to the Veteran's non-pulsatile, recurrent tinnitus. Given the above-noted deficiencies, the Board must find that neither opinion is adequate to resolve the claim. Notably, with respect to the VA opinion obtained, once VA undertakes the effort to obtain such an opinion when developing a service connection claim, even if not statutorily obligated to do so, it must obtain one that is adequate for purposes of the determination being made. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Under these circumstances, the Board finds that further action to obtain an adequate medical opinion by an appropriate VA physician -based on full consideration of all pertinent evidence (to include lay assertions), and supported by complete, clearly­ stated rationale-is needed to resolve the claim for service connection for tinnitus. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015); Mclendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may well result in denial of his claim for service connection. See 38 C.F.R. § 3.655 (2015). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Prior to arranging for the Veteran to undergo VA examination, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As for VA records, the claims file reflects that the Veteran has been receiving treatment from the West Texas Health Care System (HCS), and that records from these facilities dated through November 2012 are associated with the file; however, more recent records may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, the AOJ should obtain from the West Texas HCS all pertinent, outstanding records of evaluation and/or treatment of the Veteran dated since November 2012, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with regard to requests for records from Federal facilities. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the remaining claim on appeal, explaining that he has a full one-year period to respond. See 38 U.S.C.A. § 5103(b)( l ); but see 38 U.S.C.A. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). In its letter, the AOJ should specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent private (non-VA) records. Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the VCAA. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the remaining claim on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain from the West Texas HCS all outstanding, pertinent records of evaluation and/or treatment of the Veteran, dated from November 2012. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regards to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Furnish to the Veteran and his representative a letter requesting that he provide additional information and, if necessary, authorization, to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteranfurnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. Ifthe Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. Ifany records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA examination by an ENT physician. The contents of the entire, electronic claimsfile, (in VBMS and Virtual VA), to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should include discussion of the Veteran's documented history and lay assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail). The physician should clearly indicate whether the Veteran suffers from both recurrent (continuous) and pulsatile tinnitus (as noted in the January 2016 private physician's report). With respect to the Veteran's recurrent, non-pulsatile tinnitus, the physician should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the disability had its onset during service, or is otherwise medically related to in-service injury or disease, to particularly include conceded in-service noise exposure. In rendering the requested opinion, the examiner must consider and discuss all relevant medical evidence (to include the private physician's January 2016 statement), and all lay assertions-to include the Veteran's competent assertions as to in-service noise exposure, and as to the nature, onset, and continuity of associated symptoms. All examination findings/testing results, along with the complete, clearly-stated rationale for the conclusions reached, must be provided. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. Ifany action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim on appeal in light of all pertinent evidence (to include all evidence added to the VBMS and/or Virtual VA file(s) since the last adjudication) and legal authority. 7. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment . The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals