Citation Nr: 1634202 Decision Date: 08/30/16 Archive Date: 09/06/16 DOCKET NO. 11-20 811 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection of bilateral tinnitus. 2. Entitlement to service connection of bilateral hearing loss. 3. Entitlement to service connection of an eye disorder, to include a loss of visual acuity. REPRESENTATION Veteran represented by: Robert C. Brown, Jr., Esq. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. T. Callahan, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from March 1975 to September 1976. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied the benefits sought on appeal. These claims were previously before the Board in October 2014, at which time the claims were remanded to the agency of original jurisdiction (AOJ) for further development. That development having been completed, the claims are once again before the Board for appellate consideration. In November 2012 the Veteran testified before the undersigned in a hearing held via video teleconference with the Muskogee RO. A transcript of that hearing has been obtained and associated with the Veteran's Virtual VA electronic claims file. This appeal has been processed utilizing the paperless, electronic Veterans Benefits Management System and Virtual VA claims processing systems. The issues of service connection of hearing loss and an eye disorder are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDING OF FACT The Veteran has experienced symptoms of tinnitus since her service. CONCLUSION OF LAW The criteria for service connection of tinnitus have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist With respect to the Veteran's claims, VA has met all statutory and regulatory provisions to notify and assist. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In addition to the duties to notify and assist the Veteran, the Board has also reviewed the duties imposed on VA with respect to holding hearings and issuing remands, as have occurred in this case. With regard to the Veteran's November 2012 hearing, the Board notes the duties detailed in Bryant v. Shinseki, 23 Vet. App. 488 (2010). In that case, the United States Court of Appeals for Veteran's Claims (the Court) held that 38 C.F.R. § 3.103(c)(2) requires that a Veterans Law Judge who chairs a hearing must fully explain the issues, and suggest the submission of evidence that may have been overlooked. In this case, the hearing transcript reveals that the undersigned clearly identified the issues in this case to both the Veteran and her accredited representative prior to receiving testimony. The transcript also indicates that during the hearing the undersigned solicited from the Veteran testimony containing facts otherwise not contained in the record, including the precise conditions of the Veteran's military work and the frequency of her claimed noise exposure. Accordingly, the duties of 38 C.F.R. § 3.103(c)(2) have been satisfied in this case. With respect to the Board's prior remand, the Board notes that the Veteran is entitled to compliance with the Board's remand directives, as a matter of law. See Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) In this case, the Board previously remanded these claims with instructions that VA undertake appropriate efforts to locate the Veteran's service treatment records and service personnel records. The Board also instructed VA to ask the Veteran to identify any outstanding private treatment records which may be relevant to the case and to obtain any outstanding VA treatment records. A review of the case file indicates that the Veteran's service treatment records are associated with the claims file, as are VA treatment records obtained after the Board's remand. The record also indicates that the Veteran was asked, in written correspondence, to identify any additional relevant records. Accordingly, the Board finds that VA has substantially complied with the Board's October 2014 remand, and so the Board may proceed to a decision on these claims. II. Analysis Generally, service connection may be granted when the record shows the existence of a current disability; an in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 C.F.R. § 3.303(d). Such a nexus may be established through many forms of evidence, and the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In so doing, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). However, lay evidence is competent only if it is provided by a person who has knowledge of the facts or circumstances and it conveys matters that can be observed and described by a lay person. See 38 C.F.R. § 3.159(a)(2). With that said, the Veteran has alleged in the record that she began to experience the symptoms of tinnitus in 1975, while still in service. Specifically, the Veteran described during a July 2011 VA medical examination that she began to experience symptoms which she described as "roaring" in her ears while in the military, and she attributed the onset of these symptoms to the noise she was exposed to while working in a helicopter hangar during her service, which involved working around running helicopters in an indoor space without hearing protection. The Veteran's service treatment records are, however, largely silent with respect to any tinnitus, or tinnitus like symptoms. In fact, the Veteran's tinnitus is largely absent from her medical records generally until the July 2011 VA examination in conjunction with this claim. At that time, the examiner diagnosed the Veteran with bilateral tinnitus and stated that "tinnitus is at least as likely as not associated with military noise exposure". In support of this opinion the examiner pointed to the Veteran's military noise exposure. With this evidence, the Board finds that the first element of service connection is satisfied with respect to the Veteran's tinnitus. The Board also finds that the second element of service connection is satisfied, in light of the fact that the Veteran is generally considered competent to report the events of her own life, such as the manner of her work in service and the environment in which she was placed while performing this work. Furthermore, nothing exists in the record to indicate that the Veteran's reports lack credibility, particularly given that the Veteran's reports appear consistent with her military specialty, which is listed in her discharge materials as "material supply specialist". Finally, the Board finds that the third element of service connection is also satisfied in this case. Medically, this conclusion is supported by the opinion of the July 2011 examiner. The credibility and probative value of this opinion is bolstered not only by the examiner's training and experience, but also by the Veteran's reports. As was detailed above, the Veteran is competent to report the onset of her symptoms, which could include roaring in her ears. Further, there is nothing in the claims file which contradicts the Veteran's reports of onset while in military service. Accordingly, the weight of the evidence supports a nexus between the Veteran's bilateral tinnitus and her military noise exposure, and so service connection has been established. ORDER Service connection for bilateral tinnitus is granted. REMAND Although the Board regrets the additional delay, a remand in this case is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim, so that she is afforded every possible consideration. 38 U.S.C.A. §5103A (West 2014); 38 C.F.R. §3.159 (2015). Hearing Loss As with the Veteran's tinnitus, the Veteran has alleged in the record that she began to experience hearing loss during her military service because of her work in a helicopter hangar. The Veteran has also alleged many times in the record that her hearing loss is a result of weapons fire training that she took part in during service, also without hearing protection. At the Veteran's separation from service, she was medically examined. During this examination, the Veteran complained of experiencing ear, nose, or throat trouble, as well as frequent headaches and dizziness. However, the Veteran stated that she had not experienced hearing loss. Nevertheless, during this examination, the examiner noted that the Veteran's ear drums had "severe scarring". No such findings were made when examined at service entrance. The Veteran was examined for VA purposes in July 2011. At that time, the examiner diagnosed the Veteran with hearing loss of mixed type. Specifically, the examiner stated that the Veteran's hearing loss was a combination of both sensorineural hearing loss and conductive hearing loss. The examiner also noted that the Veteran was reporting her hearing loss as being worse in the right ear, and she reported having had surgery on the right ear in the past. Upon examination of the Veteran's ears, the examiner noted that the Veteran's tympanic membrane of the right ear was "monomeric", which he said was consistent with the Veteran's reported history of ear surgery. The examiner then stated that the Veteran's hearing loss was less likely than not causally or etiologically related to the Veteran's military noise exposure. However, the examiner failed to offer any opinion as to any relation which may exist between the Veteran's reports of difficulties with her ear in service or the "severe scarring" noted on separation and her current hearing loss. Accordingly, the Board finds that a remand is necessary in this case in order to obtain opinion evidence on these questions. Eye Disorder In addition to the claims discussed above, the Veteran has also contended in the record that she now experiences a loss of visual acuity, which she attributes to her regular use of a microfiche reader while in service. When the Veteran was then examined upon separation from service, she reported to the examiner that she occasionally experienced blurring of her vision in the left eye, from an injury but her visual acuity was noted to be entirely normal. Since the Veteran's separation from service, her visual acuity has decreased. In fact, the Veteran's most recent optometric examination showed her visual acuity in the left eye to be 6/160, after correction. The Veteran's medical records then show that this decrease in visual acuity in the left eye is due to a "dense" cataract, which appears to have been surgically removed in January 2013. That said, a review of the record indicates that the Veteran's eye condition have never been afforded a VA medical examination. This is significant because the record does not contain sufficient evidence for the Board to evaluate the merit of the claim, and the Board is careful not to substitute its judgment for a medical assessment. Hence, the Board finds that a remand of this claim is necessary in order for the Veteran to be provided with a VA medical examination. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding relevant VA treatment records which are not currently associated with the claims file. 2. After such development is completed, schedule the Veteran for an ophthalmological examination of her eyes with an appropriately qualified medical professional. In arranging this examination, the examiner should be provided with access to the Veteran's electronic case file. In performing this examination, the examiner is asked to conduct any and all indicated tests to identify current eye disability. After conducting this examination, and noting the in-service report of occasional blurred vision from an injury, the examiner is asked to offer an opinion on the following question: Is it at least as likely as not that any current eye disability first arose while the Veteran was in service, or is causally or etiological related to the Veteran's military service? The examiner is asked to support any and all opinions or conclusions with clear and thorough rationale, utilizing specific references to evidence in the claims file, where appropriate. 3. Obtain an addendum opinion from the July 2011 VA medical examiner or other appropriate person with respect to the Veteran's hearing loss. In obtaining this opinion, the examiner should again be provided with access to the Veteran's electronic claims file, and the examiner is asked to again review the claims file, with particular emphasis on the Veteran's in-service right ear complaints, and severe ear drum scarring noted at service separation. The examiner is then asked to provide an opinion as to the following: Is it as likely as not that the Veteran's current hearing loss is causally or etiologically related to an in-service disease or injury/the in-service findings? The examiner is asked to support any and all opinions or conclusions with clear and thorough rationale, utilizing specific references to evidence in the claims file, where appropriate. 4. After completing the above development, as well as any other warranted development as may become indicated from the actions requested, the Veteran's claims should be re-adjudicated based on the entirety of the evidence. If the Veteran's claims remain denied, the Veteran and her representative should be issued a supplemental statement of the case, and an appropriate period of time allowed for response. The Veteran 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 claim 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). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs