Citation Nr: 1754740 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 14-02 320 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a skin disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD S. Mountford, Associate Counsel INTRODUCTION The Veteran had active military service from October 1965 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) from the September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran appeared at an August 2017 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The issues of entitlement to service connection for bilateral hearing loss and a skin disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's tinnitus is related to his military service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5102, 5103(A), 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015). In this case, the Board is granting the claim. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Other Due Process Considerations As noted in the Introduction, the Veteran was afforded a hearing before the undersigned VLJ in August 2017. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ asked the Veteran specific questions concerning the symptoms of and treatment for his hearing loss, tinnitus, and skin disability. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate the claim. In addition, the Veteran was assisted at the hearing by an accredited representative from The American Legion. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or his representative. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). III. Service Connection Generally Service connection may be established for a disability due to a disease or injury that was incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, in order to prevail on the issue of service connection, the evidence must show: (1) the existence of 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). IV. Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical and lay evidence for the issue on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran contends that his current tinnitus is a result of his military service in Vietnam. The RO has conceded that the Veteran was exposed to acoustic trauma and thereby conceded noise exposure. Throughout the record, the Veteran has asserted that his ears began ringing shortly before separating from the military and that he was told he had hearing loss and was instructed to see a civilian doctor. However, a May 2008 private treatment note states that the Veteran reported his tinnitus onset to be two months prior. Although, in a December 2011 statement, the Veteran explained that the examiner would not listen to the Veteran's statements that his tinnitus in fact began since service and that he therefore told the physician that it only began two months prior. In January 2011, the Veteran underwent a VA examination. The examiner diagnosed the Veteran with bilateral sensorineural hearing loss and tinnitus. The examiner concluded that the Veteran's tinnitus was not caused by his military service. In fact, the examiner stated that the etiology of the Veteran's tinnitus is likely due to the same etiology as the Veteran's hearing loss; however, since the Veteran's hearing loss was not previously service connected, the examiner stated that the Veteran's tinnitus could not be service connected as well. The examiner appeared to rely solely on the Veteran's entrance and separation examinations that did not show significant threshold changes in the Veteran's hearing as well as the lack of other treatment records in forming his negative nexus opinion. Additionally, the examiner did not provide a rationale. Furthermore, the January 2011 examiner failed to take into account the Veteran's assertion that he has had ringing in his ears since before his separation from the military and instead relied on the May 2008 private treatment report that stated that the onset of the Veteran's tinnitus was in 2008. The Board affords the January 2011 examiner's opinion little probative weight as it does not appear to have taken the Veteran's lay statements into account or provide a rationale as to why the Veteran's tinnitus is not related to his military service. An August 2017 private medical opinion stated that it is more likely than not that there is a direct relationship between the Veteran's military occupation and his current hearing loss and tinnitus. The Veteran's physician stated that he reviewed the Veteran's military service and has been treating the Veteran for these conditions. Additionally, August 2017 private treatment records state that the Veteran's tinnitus began much earlier than 2008. Furthermore, at the Veteran's August 2017 hearing he testified that he has had no additional acoustic trauma since leaving the military and always used hearing protection in his post-service occupations. Additionally, the Veteran's spouse at the time of his enlistment and separation stated that it was very apparent that the Veteran experienced hearing loss after returning home from Vietnam. Following a thorough review of the evidence of record, and affording the Veteran the benefit of the doubt, the Board concludes that service connection for tinnitus is warranted. Post-service evidence of record reflects findings of tinnitus. The Veteran has asserted that he developed tinnitus in service and has experienced it ever since. The Board has found his statements to be competent and credible. The Board has also considered the Veteran's statements concerning in-service noise exposure as well as his documented military occupation specialty and status as a combat veteran and concession of noise exposure. 38 U.S.C.A. § 1154 (West 2014). Thereby, service connection for tinnitus is granted. ORDER Entitlement to service connection for tinnitus is granted. REMAND Although the Board regrets the additional delay, a remand 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 he is afforded every possible consideration. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016). Hearing Loss The Veteran contends that his current bilateral hearing loss is a result of his military service in Vietnam and began shortly following his separation from service. The Board notes that the RO has conceded that the Veteran was exposed to acoustic trauma and thereby has conceded noise exposure. The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted. This regulation does not necessarily preclude service connection for hearing loss that first meets the regulation's requirements after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current hearing disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service. 38 U.S.C.A. §§ 1110, 1131; C.F.R. §§ 3.303, 3.304; Hensley, 5 Vet. App. at 159-60. If medical evidence sufficiently demonstrates a medical relationship between the veteran's in-service exposure to loud noise and his current disability, it would follow that the veteran incurred an injury in service and the requirements of 38 U.S.C.A. §§ 1110 are satisfied. Hensley, 5 Vet. App. at 160. The Board acknowledges that the Veteran's service treatment records do not demonstrate that the Veteran had hearing loss as defined in 38 C.F.R. § 3.385 during service. Consequently, a VA medical examination occurred in January 2011. As discussed above, a May 2010 lay statement from the Veteran's spouse at his time of enlistment and separation stated that the Veteran's hearing loss was apparent immediately after he came home from Vietnam. In January 2011, the Veteran underwent a VA examination. The examiner diagnosed the Veteran with bilateral sensorineural hearing loss and tinnitus. However, the examiner only provided an opinion regarding the etiology of the Veteran's tinnitus and not his bilateral hearing loss. In March 2013, a VA addendum opinion was obtained. The examiner stated that the Veteran's bilateral hearing loss is less likely than not permanently aggravated by the Veteran's military service. The examiner relied on the fact that the Veteran's entrance and separation examinations revealed no significant threshold shifts while in service. However, the examiner stated that the Veteran's private records were not reviewed. The Board gives little probative weight to the January 2011 VA examination and March 2013 addendum medical opinion. First, the January 2011 VA examination does not include an opinion regarding the etiology of the Veteran's bilateral hearing loss. Second, the March 2013 addendum opinion only includes an opinion regarding aggravation. Additionally, both the January 2011 and March 2013 physicians appeared to have solely relied on the absence of any threshold changes during the Veteran's military service and did not discuss the Veteran's lay statements that he developed hearing loss within one year of service. Additionally, an August 2017 private medical opinion stated that it is more likely than not that there is a direct relationship between the Veteran's military occupation and his current hearing loss and tinnitus. The Veteran's physician stated that he reviewed the Veteran's military service and has been treating the Veteran for these conditions. The only other evidence in the record concerning the etiology of the Veteran's hearing loss is statements from the Veteran. Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, the disability at issue in this case could have multiple possible causes and thus, falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 429 F.3d 1372 (Fed. Cir. 2007). Thereby, the Board finds that since there is no adequate examination or opinion regarding the Veteran's bilateral hearing loss, a new examination is warranted on remand. Skin Disability The Veteran contends that his current skin disability was caused by his military service and specifically his time spent in Vietnam. Throughout the record the Veteran reported multiple skin issues that did not begin until his deployment in Vietnam. The Veteran has not been afforded a VA examination in connection with his claim for a skin disability. The Board finds that prior to considering the merits of the Veteran's claim, he should be afforded the appropriate VA examinations to determine the nature and etiology of the claimed condition. See McClendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159 (c)(4). Since the claims file is being remanded, it should be updated to include any outstanding VA treatment records. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate those documents with the Veteran's claims file. 2. Once the above development has been completed, forward a copy of the Veteran's claims file, to include a copy of this Remand, to a qualified VA medical professional for a VA examination regarding the Veteran's bilateral hearing loss. After reviewing the record, and with consideration of the Veteran's statements, the lay statement provided from the Veteran's spouses, and the Veteran's private treatment records, the examiner is asked to address the following: Is it at least as likely as not (a 50 percent probability or greater), that the Veteran's bilateral hearing loss began in service, was caused by service, or is otherwise related to the Veteran's military service. The examiner should not base any opinions on the absence of service treatment records. For purposes of these opinions, the examiner should assume the Veteran is a credible historian. Additionally, the RO has conceded that the Veteran was exposed to acoustic trauma. The VA examiner should indicate that the claims file was reviewed. All opinions provided must be thoroughly explained and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the medical professional should state and explain why an opinion cannot be provided without resort to speculation. 3. Next, forward a copy of the Veteran's claims file, to include a copy of this Remand, to a qualified VA medical professional for a VA examination regarding the Veteran's skin disability The examiner must first identify all diagnosed skin disabilities during the period on appeal (March 2009 to present). After reviewing the record, and with consideration of the Veteran's statements, the lay statement provided from the Veteran's spouses, and the Veteran's private treatment records, the examiner is asked to address the following for each diagnosis: Is it at least as likely as not (a 50 percent probability or greater), that any diagnosed skin disability began in service, was caused by service, or is otherwise related to the Veteran's military service, to include exposure to herbicides. The examiner should not base any opinions on the absence of service treatment records. For purposes of these opinions, the examiner should assume the Veteran is a credible historian. Additionally, the RO has conceded that the Veteran was exposed to herbicides. The VA examiner should indicate that the claims file was reviewed. All opinions provided must be thoroughly explained and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the medical professional should state and explain why an opinion cannot be provided without resort to speculation. 4. The RO must notify the Veteran that it is his responsibility to report for the examinations and to cooperate in the development of the claim and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2016). In the event that the Veteran does not report for any scheduled examination, documentation showing that he was properly notified of the examination must be associated with the evidence of record. 5. Following completion of the above, and a review of any additional evidence received, the RO should also undertake any other development it deems to be necessary, to include, if warranted, an addendum medical opinion which considers any newly received evidence. 6. Then, the RO should readjudicate the Veteran's claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran should be provided a supplemental statement of the case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matter or 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 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 2014). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs