Citation Nr: 0002595 Decision Date: 02/02/00 Archive Date: 02/10/00 DOCKET NO. 97-26 897A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD R. E. Smith, Counsel INTRODUCTION The veteran had active military service from August 1969 to October 1970. This matter came before the Board of Veterans' Appeals (Board) on appeal from rating decisions in September 1996 and October 1997 by the Department of Veterans Affairs (VA) Huntington, West Virginia, Regional Office (RO), denying the veteran entitlement to service connection for bilateral hearing loss and tinnitus. In August 1999, a video conference hearing was held with the veteran in Huntington, West Virginia, before the undersigned Member of the Board sitting in Washington, D.C. A transcript of that hearing has been associated with the veteran's claims file. In April 1997, during the course of this appeal, a statement of the case was furnished to the veteran addressing the additional issues of increased evaluations for his service- connected post-traumatic stress disorder, a left elbow disability, and a right temporal area scar. The veteran failed to perfect an appeal as to these issues. Consequently, these issues will not be addressed herein. FINDING OF FACT A private physician has indicated that the veteran has bilateral high frequency hearing loss, which causes tinnitus and that such hearing loss could have been precipitated by head trauma sustained by the veteran in Vietnam. CONCLUSION OF LAW The veteran has submitted well-grounded claims of service connection for bilateral hearing loss and tinnitus. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C.A. § 5107(a), VA has a duty to assist only those claimants who have established well-grounded (i.e. plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (Court) issued a decision holding that VA cannot assist a claimant in developing a claim, which is not well grounded. Morton v. West, 12 Vet. App. 477 (1999). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well grounded, the claimant's initial burden has been met and VA is obligated under 38 U.S.C.A. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. Accordingly, the threshold question that must be resolved in this appeal is whether the veteran has presented evidence that his claims are well grounded; that is, that the claims are plausible. In order for a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. Further, in determining whether a claim is well grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet. App. 19, 21 (1993). In regard to establishing a well-grounded claim, the 2nd and 3rd elements in Caluza (incurrence and nexus evidence), can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by (1) evidence that a condition was "noted" during service or during an applicable presumption period; (2) evidence showing post service continuity of symptomatology; and (3) medical or, and in certain circumstances, lay evidence of a nexus between the present disability and the post service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). The symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage, 10 Vet. App. 496. Moreover, a condition "noted during service" does not require any type of special or written documentation, such as being recorded in an examination report, either contemporaneous to service or otherwise, for purposes of showing that the condition was observed during service or during the presumptive period. Id. at 496-97. However, medical evidence of noting is required to demonstrate a relationship between the present disability and the demonstrated continuity of symptomatology unless such a relationship is one to which a lay person's observation is competent. Id. at 497. In the case of a disease only, service connection also may be established under § 3.303(b) by (1) evidence of the existence of a chronic disease in service or of a disease, eligible for the presumptive service connection pursuant to statute or regulation, during the applicable presumption period; and (2) present disability from it. Savage, 10 Vet. App. 495. Either evidence contemporaneous with service or the presumptive period of service or evidence that is post service or post presumptive period may suffice. Id. The veteran has presented testimony asserting that he has tinnitus and bilateral hearing loss which stems from noise injury and/or head trauma sustained during combat operations in Vietnam. Specifically, the veteran testified in August 1999 that he was thrown from an armed personnel carrier when it ran over a land mine. In addition to sustaining multiple fragment wounds and orthopedic injuries, the veteran said he also sustained head and/or acoustic trauma injury resulting in ringing in his ears, that has persisted since service, as well as hearing loss. The clinical evidence presented in support of the veteran's claim includes an April 1997 letter from a private physician, R. Austin Wallace, M.D. Dr. Wallace reported that the veteran has bilateral high frequency sensorineural hearing loss, which causes tinnitus. He noted that the veteran reported sustaining head trauma in Vietnam. Dr. Wallace stated that "head trauma has been known to precipitate sensorineural hearing loss which could cause tinnitus," but added the proviso that post-service increase in the hearing loss could not be the result of that trauma. Given Dr. Wallace's statements, it will be presumed at this time that there is evidence of the claimed disabilities. There is also evidence of injury to the veteran's head in service as well as exposure to acoustic trauma. Furthermore, the combat veteran's assertion of injury in service is consistent with the circumstances of his service and thus sufficient proof of such injury. See 38 U.S.C.A. § 1154 (West 1991). The statements of Dr. Wallace provide medical nexus between the veteran's service and bilateral hearing loss and tinnitus. Accordingly, the veteran has submitted well-grounded claims of service connection for these two disabilities. However, Dr. Wallace did not go so far as to say that the hearing loss and tinnitus are at least as likely as not to be the result of service. ORDER The veteran's claims for service connection for bilateral hearing loss and tinnitus are well grounded; the appeal is granted to this extent. REMAND Because the claims of entitlement to service connection for a bilateral hearing loss and tinnitus are well grounded, VA has a duty to assist the veteran in developing the facts pertinent to the claims. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.159 (1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). The veteran's service medical records show no indication of hearing loss or tinnitus. The records do reflect that, while the veteran was in an armed personnel carrier, it hit a mine and he was thrown from the vehicle sustaining multiple injuries for which hospitalization and treatment in service was required. A subsequent medical examination of the veteran in July 1970, for medical board purposes, disclosed essentially normal hearing on audiological evaluation and no abnormalities on clinical evaluation of his ears. However, on a report of a January 1972 medical examination for medical board purposes, completed while the veteran was on the temporary disability retirement list (TDRL) the veteran was found to have pure tone thresholds in the left ear, at the frequencies 250, 500, 1,000, 2,000, and 8,000 hertz, of 15, 10, 10, 40 and 15. Hearing in the right ear remained essentially normal. The examining physician did not diagnose hearing loss based on these findings. VA has a duty to assist the veteran in the development of facts pertaining to his claim. 38 U.S.C.A. § 5107(a). The Court has held that the duty to assist the claimant in obtaining and developing facts and evidence to support his claim includes obtaining all relevant medical records. Littke v. Derwinski, 1 Vet. App. 90 (1990). The duty to assist also includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran that takes into account the records of prior medical treatment. Green v. Derwinski, 1 Vet. App. 121 (1991). Accordingly, this case is REMANDED for the following development. 1. The RO should take appropriate steps to contact the veteran in order to obtain the names, addresses and approximate dates of treatment of all health care providers, VA and private, who have rendered him medical attention for bilateral hearing loss and tinnitus since service. When the veteran responds and provides any necessary authorizations, the RO should obtain all treatment records from any identified treatment source not currently of record. All records obtained should be associated with the claims folder. 2. The RO should schedule the veteran for VA audiological and ear examinations to determine the nature and likely etiology of his bilateral hearing loss and tinnitus. All indicated testing should be accomplished, and the claims folder should be reviewed by the examiner(s) prior to the examination(s). The examiner(s) should elicit from the veteran and record a full medical history as pertinent to the hearing loss and tinnitus. Based on a review of the case, it is requested that the examiner(s) express an opinion as to whether it is at least as likely as not that any current hearing loss and/or tinnitus is due to exposure to in-service acoustic trauma or head trauma as claimed by the veteran, or other disease or injury which was incurred in or aggravated by service. The examination report should reflect review of the pertinent material in the claims folder and include the factors upon which any opinion is based. 3. The RO should then review the record, and the claim should be readjudicated. If the determination remains adverse to the veteran, he and his representative should be provided with a supplemental statement of the case and be given the opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate review. No action is required of the veteran until he receives further notice. The purpose of this REMAND is to obtain additional information. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of the case. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. 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 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 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. J. E. DAY Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1996).