Citation Nr: 18148770 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-37 559 DATE: November 8, 2018 ORDER Entitlement to service connection for memory loss is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDING OF FACT The appellant has not been shown to have memory loss that is related to a period of active service. CONCLUSION OF LAW Memory loss was not incurred in active service. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served in the United States Navy Reserve from October 1991 to September 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board notes that the appellant filed an original claim in July 2012, which was initially denied in a July 2013 rating decision. The RO issued the January 2014 rating decision after receiving additional evidence submitted by the appellant, i.e., a July 2013 lay statement. In the January 2014 rating decision, the RO addressed the claims in the context of new and material evidence; however, the Board notes that the appellant submitted new evidence prior to expiration of the appeal period. In addition, relevant official service department records have been associated with the claims file since the RO first decided the claim. Therefore, the new and material evidence provisions do not apply. 38 C.F.R. §§ 3.156(b), (c). Law and Analysis Neither the appellant nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In this case, the appellant had service in the United State Navy Reserve with periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). For VA compensation purposes, a veteran is a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable. 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from disease or injury incurred in or aggravated in the line of duty, or any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from injury (but not disease) incurred in or aggravated in the line of duty. 38 U.S.C. §§ 101 (21), (24), 106; 38 C.F.R. § 3.6 (a), (d). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, 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 considering the evidence of record under the laws and regulations as set forth above, the Board finds that the appellant is not entitled to service connection for memory loss. The appellant’s service treatment records are negative for any complaints, treatment, or diagnosis of memory loss. In fact, he specifically denied having any history of memory loss on several occasions in service. See July 1991, June 1992, December 1995, August 1999 reports of medical history. Moreover, there is no evidence of a current memory loss disorder. In fact, there are no treatment records documenting any memory loss, despite a June 2013 letter advising the appellant to submit or identify any treatment records pertinent to the claimed condition. In response to that letter, he indicated that he had no other information or evidence to provide VA to support his claim. See 38 C.F.R. § 3.159 (c)(4)(i); cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the appellant currently has the disability for which benefits are being claimed. Because there is no evidence that the appellant had memory loss in service or thereafter, the Board concludes that service connection is not warranted. As the weight of the evidence is against the appellant’s claim, the benefit-of-the-doubt rule does not apply, and the claim is denied. REASONS FOR REMAND The appellant has claimed that he developed hearing loss and tinnitus as a result of significant noise exposure in service. His service treatment records include a July 1991 affiliation examination that was normal. However, a December 1995 periodic examination included an audiogram revealing moderate hearing loss at 3,000, 4,000 and 6,000 Hertz. He had excessive ear wax in both ears, and a repeat audiogram was recommended after the ear wax removal. In August 1999, a physical examination of his ears and drums was normal, and he denied any history of hearing loss; however, an audiogram revealed hearing loss bilaterally at mid to high-frequencies. The appellant was afforded a VA examination in June 2013. He stated that he worked as a storekeeper during his reserve service and helped move supplies on and off the ship. He reported being exposed to excessive noise from missiles and airplanes. He has also alleged that he was near large guns firing volleys during an exercise in the Hawaiian islands without the benefit of ear protection. See July 2013 lay statement. The appellant stated that he first perceived hearing problems in 2000 and tinnitus in his right ear during 2000 to 2001. He described the tinnitus as a constant siren sound, which gave him headaches. He worked as a teacher and insurance salesman and denied any civilian occupational or recreational noise exposure. See June 2013 VA examination report. The VA examiner diagnosed the appellant with mixed hearing loss in the right ear and sensorineural hearing loss in the left ear. However, she determined that she could not provide a medical opinion regarding the etiology of the appellant’s bilateral hearing loss and tinnitus without resorting to speculation. The examiner explained that the appellant’s service treatment records were limited, and therefore, an informed opinion could not be made at that time. She proffered that. if more records are located or they are deemed complete. then the claims file could be returned for an opinion. See June 2013 VA examination report. The Board notes that medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. Jones v. Shinseki, 23, Vet. App. 382, 389-90 (2010) (noting that the phrase, “without resort to mere speculation,” must not become a mantra that short circuits the careful consideration to which each claimant’s case is entitled and holding that, before the Board can rely on an examiner’s conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board’s review of the evidence). Applicable regulations also provide that a finding of service connection may not be based on a resort to speculation or a remote possibility. See 38 C.F.R. § 3.102 (2017). In addition, the Board notes that additional service personnel records were added to the claims file after the June 2013 VA examination, but the claims file was not returned to the examiner for an addendum opinion. For these reasons, the Board finds that an additional medical opinion is needed to decide the claims. The matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should request that the appellant provide the names and addresses of any and all health care providers who have provided treatment for hearing loss and tinnitus. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records. 2. After completing the foregoing development, the AOJ should refer the claims file to a suitably qualified examiner for a medical opinion addressing the etiology of the appellant’s hearing loss and tinnitus. To the extent possible, the AOJ should provide the examiner with a summary of the periods of verified active service that may be considered for VA compensation purposes. The examiner is requested to review all pertinent records associated with the claims file, including the appellant’s service treatment records, post-service medical records, and statements. It should be noted that the appellant is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology and noise exposure. If there is a medical basis to support or doubt the history provided by the appellant, 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 where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for 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 opine as to whether it is at least as likely as not that the appellant has current hearing loss and tinnitus that manifested during a period of verified active service or that are are causally or etiologically related to such service, including noise exposure therein. In rendering this opinion, the examiner should discuss medically known or theoretical causes of hearing loss and tinnitus and describe how hearing loss and tinnitus which result from noise exposure generally present or develop in most cases, as distinguished from how hearing loss and tinnitus develop from other causes, in determining the likelihood that his current hearing loss and tinnitus were caused by noise exposure in service as opposed to some other cause. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against it.) 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. Because it is important “that each disability be viewed in relation to its history[,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D.S. Chilcote, Associate Counsel