Citation Nr: 1800892	
Decision Date: 01/08/18    Archive Date: 01/19/18

DOCKET NO.  16-43 127	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota


THE ISSUES

1. Entitlement to service connection for bilateral hearing loss. 

2. Entitlement to service connection for tinnitus. 


REPRESENTATION

Veteran represented by:	South Dakota Department of Veterans Affairs


ATTORNEY FOR THE BOARD

Mariah N. Sim, Associate Counsel





INTRODUCTION

The Veteran served on active duty in the United States Army from March 1954 to March 1956. 

This matter comes to the Board of Veteran's Appeals (Board) on appeal from a January 2016 rating decision issued by Department of Veterans' Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

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 Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The Veteran is not shown to have tinnitus. 


CONCLUSION OF LAW

The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1132, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2017).







REASONS AND BASES FOR FINDING AND CONCLUSION

I. Veterans Claims Assistance Act of 2000 (VCAA)

VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  

Additionally, VA's duty to assist contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim.  38 C.F.R. § 3.159 (2017).  VA has done everything reasonably possible to assist the Veteran with respect to the claims for benefits in accordance with 38 U.S.C. § 5103A (2012) and 38 C.F.R. § 3.159 (c) (2017).  Also, the Veteran was afforded a VA examination in January 2016, which is fully adequate for decision-making purposes. Hence, the duties to notify and to assist have been satisfied.

II. Service connection for tinnitus 

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2017).
Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relation i.e. a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

With regard to lay evidence, medical evidence is not always or categorically required in every instance to establish a medical diagnosis or the required nexus between the claimed disability and the Veteran's military service.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  That is, lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent on the issues of diagnosis and causation.  Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). 

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  See 38 U.S.C. § 1131; Degmetich v. Brown, 104 F. 3d 1328 (Fed. Cir. 1997).  Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  In the absence of proof of a present disability due to disease or injury, there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (Fed. Cir. 1992).

Here, the Veteran was afforded a VA examination in January 2016. At this time, the Veteran denied having tinnitus, and did not report any sounds or problems with his ears other than hearing loss. Further, he denied any sounds or other problems with his ears or hearing. The Board notes that the Veteran has submitted two private audiological exams, both of which are silent for tinnitus. 

The Board is grateful for the Veteran's honorable service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107 (a) ("[A] claimant has the responsibility to present and support a claim for benefits . . . ."); Fagan v. Shinseki, 573 F.3d 1282, 1286   (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29   (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA . . . the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination).


ORDER

Entitlement to service connection for tinnitus is denied. 


REMAND

The Board finds that additional development is needed before the Veteran's claim on appeal can be decided. 

The Veteran underwent a VA audiological examination in January 2016. The examiner opined that the Veteran's bilateral hearing loss was not etiologically related to his active service due to the unavailability of the Veteran's service treatment records. Furthermore, the VA examiner failed to address any other theoretical or medically known causes of hearing loss and did not discuss how hearing loss, which results from noise exposure, generally presents or develops in most cases, as distinguished from how hearing loss develops from other causes. Accordingly, the Board finds that the January 2016 opinion is inadequate for decision-making purposes and that a new examination must be obtained. 38 U.S.C. § 5103A(d) (2012).  When VA undertakes the effort to provide the Veteran with a medical examination, it must ensure that such exam is an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 


Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Schedule the Veteran for a VA audiological examination to address the claim for service connection for bilateral hearing loss. The claims file must be reviewed by the examiner in conjunction with the examination. All indicated tests should be conducted and the results reported. 

The examiner should opine as to whether it is at least as likely as not (50% degree of probability or higher) that the Veteran has bilateral hearing loss that had its onset in service, was caused by service, or is otherwise related to military service, to include whether any injury due to loud noise exposure experienced therein contributed to his bilateral hearing loss.  For the purposes of this examination, the examiner should assume the Veteran was exposed to noise during active service as due to his MOS as a light weapon infantryman. 

It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.

It should also be noted that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss when there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for a hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service.

The examiner should specifically address whether there was any threshold shift or notch at higher frequencies during service or shortly thereafter that may be indicative of acoustic trauma.

The examiner should also comment on the likelihood that loud noises experienced resulted in damage to auditory hair cells even though findings may or may not suggest a recovered temporary threshold shift in service. If the examiner finds auditory hair cell damage to be a likely result of the military noise exposure, please comment on the likelihood that such damaged hair cells would result in a greater permanent hearing loss than otherwise would be manifest.

The examiner should discuss medically known or theoretical causes of hearing loss and describe how hearing loss which results from noise exposure generally presents or develops in most cases, as distinguished from how hearing loss develops from other causes, in determining the likelihood that current hearing loss was caused by noise exposure in service as opposed to some other cause.
A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.

2.  Thereafter, the AOJ should review the opinion to ensure that it is responsive and in compliance with the directives of this remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. 

3.  After completing the above, and any other development deemed necessary, the AOJ should readjudicate the claim based on the entirety of the evidence. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. 

The Veteran 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. §§ 5109B, 7112 (2012).



______________________________________________
ANTHONY C. SCIRÉ, JR.
 Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs