Citation Nr: 0002462 Decision Date: 01/04/00 Archive Date: 02/02/00 DOCKET NO. 98-11 392 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to a compensable evaluation for hearing loss, right ear. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Odlum, Associate Counsel INTRODUCTION The veteran had active military service from October 1961 to October 1963. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 1997 rating decision from the Montgomery, Alabama Department of Veterans Affairs (VA) Regional Office (RO). The veteran has recently referred to suffering hearing loss in his ears as a result of noise exposure in the military, indicating that the hearing loss in both of his ears resulted from in-service noise exposure. Service connection has only been granted for hearing loss in the right ear. Service connection for hearing loss in the left ear was denied by the RO March 1971. This decision was not appealed by the veteran. The Board concludes that the veteran has raised an inferred claim of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for hearing loss in the left ear. As this issue has been neither procedurally developed nor certified for appellate review, the Board is referring it to the RO for initial consideration and appropriate action. Godfrey v. Brown, 7 Vet. App. 398 (1995). During the October 1999 hearing the veteran indicated that he was entitled to service connection for a back disability. As this issue has been neither procedurally developed nor certified for appellate review, the Board is referring it to the RO for initial consideration and appropriate action. Id. The issues of service connection for tinnitus and entitlement to a compensable evaluation for hearing loss in the right ear are addressed in the remand portion of this decision. FINDING OF FACT The claim of service connection for tinnitus is supported by cognizable evidence showing that the claim is plausible or capable of substantiation. CONCLUSION OF LAW The claim of entitlement to service connection for tinnitus is well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background Service medical records show no documentation of complaints or a diagnosis of tinnitus. The separation examination noted high frequency hearing loss in the right ear but did not document a diagnosis of tinnitus. A February 1971 VA examination report shows that the veteran denied having tinnitus. An October 1992 VA progress note shows the veteran's complaint of having constant ringing in the right ear for the past five years. An August 1993 VA audiology examination record shows the veteran reported having constant ringing in both ears for the last three or four years. In April 1997 the veteran raised a claim for, in pertinent part, service connection for tinnitus, initially contending that he had ringing in his right ear. A June 1997 VA audiology examination record shows the veteran reported a history of noise exposure in the service with a history of constant, bilateral tinnitus beginning about seven years prior. A June 1997 VA audiology-ear examination record shows the veteran reported a history of constant tinnitus in both ears for the last eight to ten years. He denied being around any loud noises for the past 30 years, but that he was around loud noises while in the military. He reported that he was a medic and that he was exposed to explosions from bombs being set off. Examination revealed moderate to severe high frequency sensorineural hearing loss in the right ear and mild to moderate high frequency sensorineural loss in the left ear. The VA examiner concluded that the veteran's hearing loss and tinnitus were probably secondary to noise exposure, but that it could also be secondary to aging. In October 1999 a hearing before a travel Member of the Board was conducted. The veteran testified that his tinnitus was caused by exposure to loud noise while in the service. Tr., pp. 5-8. Criteria Pursuant to 38 U.S.C.A. § 5107(a), a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded. The United States Court of Appeals for Veterans Claims (Court) has held that a well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § [5107(a)]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Court has also held that although a claim need not be conclusive, the statute provides that it must be accompanied by evidence that justifies a "belief by a fair and impartial individual" that the claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992). The Court has held that "where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is 'plausible' or 'possible' is required." Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (citing Murphy, at 81). The Court has held that a well-grounded claim requires competent evidence of current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in-service injury or disease and the current disability (medical evidence). See Epps v. Brown, 126 F.3d. 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). In order to establish service connection for a claimed disability the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303 (1999). Service connection may 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) (1999). Continuous service for 90 days or more during a period of war, and post-service development of a presumptive disease to a degree of 10 percent within one year from the date of termination of such service, establishes a presumption that the disease was incurred in service. 38 C.F.R. §§ 3.307, 3.309 (1999). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1999). This rule does not mean that any manifestation in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1999). Service connection may also be granted for disability, which is proximately due to, or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) (1999). When there is aggravation of a nonservice-connected condition, which is proximately due to, or the result of service-connected disease or injury, the veteran will be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt doctrine in resolving each such issue shall be given to the veteran. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1999). Analysis Initially, the Board finds that the veteran's claim for service connection for tinnitus is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). The veteran has contended that his tinnitus was caused by in-service noise exposure and he has a current tinnitus disability. Finally, the June 1997 VA examiner, noting the veteran's reported history of military noise exposure and the lack of post-service noise exposure, concluded that the veteran's hearing loss and tinnitus were probably secondary to noise exposure. Thus, after a careful review of the record, the Board concludes that a well-grounded claim for service connection of tinnitus has been presented as there is a medical opinion indicating a link between tinnitus and service. ORDER The claim of entitlement to service connection for tinnitus is well grounded. REMAND The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. As was stated above, the claim of service connection for tinnitus is well-grounded. Once the appellant has established a well-grounded claim, VA has a duty to assist the appellant in the development of facts pertinent to the claim. See 38 U.S.C.A. § 5107(a) (West 1991). The Board also finds that the veteran's claim of entitlement to a compensable evaluation for hearing loss, right, is well grounded within the meaning of 38 U.S.C.A. § 5107(a); that is, a plausible claim has been presented. Murphy v. Derwinski, 1 Vet. App. 78 (1990). In general, an allegation of increased disability is sufficient to establish a well grounded claim seeking an increased rating. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The veteran's assertions concerning the severity of his hearing loss (that are within the competence of a lay party to report) are sufficient to conclude that his claim for an increased evaluation for that disability is well grounded. King v. Brown, 5 Vet. App. 19 (1993). The Board is not satisfied that all relevant facts have been properly developed to their full extent and that VA has met its duty to assist with regard to both issues of service connection for tinnitus and a compensable rating for hearing loss, right ear. Godwin v. Derwinski, 1 Vet. App. 419 (1991); White v. Derwinski, 1 Vet. App. 519 (1991). With respect to service connection for tinnitus, the June 1997 VA examiner's conclusion indicating a probable link between noise exposure and tinnitus is somewhat tenuous and inconclusive. First, although the only history of loud noise exposure was noted during the examination as being in service, the VA examiner did not specifically indicate whether the tinnitus was either directly linked to service or was secondary to his service-connected hearing loss; he merely concluded that it was probably secondary to noise exposure. Second, the VA examiner concluded, in pertinent part, that the tinnitus could also be secondary to aging. If the medical evidence of record is insufficient, or, in the opinion of the Board, of doubtful weight or credibility, the Board is always free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. However, it is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board concludes that a VA examination should be performed to help clarify the nature and origin of the veteran's tinnitus. With respect to the claim for a compensable right hearing loss evaluation, the Board notes that the most recent VA examination was performed in June 1997. During the October 1999 hearing, the veteran testified that his hearing problem was getting "worse and worse and worse," all the time. Transcript, p. 6. Because the most recent VA examination was conducted more than two years prior, and the veteran contended as recently as October 1999 that his hearing was getting worse, the Board is of the opinion that a current VA examination should be conducted in order to ascertain the current severity of his hearing loss in the right ear. The duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). Pursuant to its duty to assist, VA is obligated to obtain a new medical examination to obtain evidence necessary to adequately determine the current severity of the veteran's disability. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Proscelle, supra; 38 C.F.R. § 3.327(a) (1999). The Board also notes that the VA Schedule for Rating Disabilities that addresses the ear and other sense organs has recently been amended, effective June 10, 1999. 64 Fed. Reg. 25202 (1999). Thus, the regulatory criteria governing the evaluation of the veteran's bilateral hearing loss changed while his claim was pending. The veteran and his representative should be notified of these changes. Accordingly, this case is remanded to the RO for the following: 1. The RO should request the veteran to identify the names, addresses, and approximate dates of treatment for all health care providers, VA and non-VA, inpatient and outpatient, who may possess additional records pertinent to his claims. After securing any necessary authorization or medical releases, the RO should attempt to obtain legible copies of the veteran's complete treatment records from all sources identified whose records have not previously been secured. Regardless of the veteran's response, the RO should secure all outstanding VA treatment reports. All information which is not duplicative of evidence already received should be associated with the claims file. 2. After any additional evidence has been received and added to the record, the veteran should be afforded a comprehensive VA audiology and ear, nose and throat examination(s) for both his tinnitus and service connected hearing loss, conducted by an appropriate specialist(s). The claims file and a separate copy of this remand, should be made available to and reviewed by the examiners prior and pursuant to conduction and completion of the examinations and the examination reports should be annotated by the examiners in this regard. With respect to tinnitus, the examiner should offer an opinion as to whether there is a causal link between tinnitus and the veteran's military service. The examiner should also offer an opinion as to whether tinnitus is proximately due to or the result of the veteran's service- connected hearing loss, or whether, and to what degree, if any, the tinnitus is aggravated by the service connected hearing loss. Any opinions expressed should be accompanied by a complete rationale. 3. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the RO should review the requested examination reports to ensure that they are responsive to and in complete compliance with the directives of this remand, and if they are not, the RO should implement corrective procedures. Stegall v. West, 11 Vet. App. 268 (1998). 4. After undertaking any development deemed essential in addition to that specified above, the RO should readjudicate the issues of entitlement to a compensable rating for hearing loss, right ear, and service connection for tinnitus based on the entire evidence of record. If the benefits requested on appeal are not granted to the appellant's satisfaction, the RO should issue a supplemental statement of the case containing all applicable criteria pertinent to the appellant's claim. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until he is notified by the RO. RONALD R. BOSCH Member, Board of Veterans' Appeals