**UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS**

**[No]{.smallcaps}. 01-1536**

**[John H. Charles, Appellant]{.smallcaps},**

[v]{.smallcaps}.

**[Anthony J. Principi,]{.smallcaps}**

**[Secretary of Veterans Affairs, Appellee.]{.smallcaps}**

**On Appeal from the Board of Veterans\' Appeals**

**(Decided October 3, 2002 )**

***James W. Stanley*, of North Little Rock, Arkansas, was on the brief
for the appellant.**

***Tim S. McClain*, General Counsel; *Joan E. Moriarty*, Acting
Assistant General Counsel; *Carolyn F. Washington*, Deputy Assistant
General Counsel; and *Rebecca L. Ahern*, all of Washington, D.C., were
on the brief for the appellee.**

Before KRAMER, *Chief Judge*, and FARLEY and IVERS, *Judges.*

**KRAMER, *Chief Judge*: The appellant appeals, through counsel, an
August 7, 2001, decision of** the Board of Veterans\' Appeals (Board or
BVA) that determined that new and material evidence had not been
submitted to reopen his claim for service connection for right‑ear
hearing loss and that denied his claim for service connection for
tinnitus. Record (R.) at 3, 6, 7. The appellant and the Secretary have
filed briefs. **This appeal is timely, and the Court has jurisdiction
pursuant to 38 U.S.C. §§ 7252(a) and 7266(a).** For the reasons that
follow, the Court will vacate the Board\'s decision and remand the
matters for readjudication consistent with this opinion.

**I. Background**

The appellant served on active duty from December 1943 to September
1945. R. at 10. In an October 18, 1945, decision, a VA regional office
(RO), inter alia, denied the appellant\'s claim for service connection
for defective hearing, right ear, on the grounds that such condition was
not found during his discharge examination and that he did not receive
any in‑service treatment for such condition (R. at 37; *see* R. at 23);
the appellant did not appeal that decision. In March 1998, the appellant
in essence requested that his claim for service connection for hearing
loss, right ear, be reopened. R. at 48-52. The RO, in a March 1999
letter, informed the appellant that he needed to submit new and material
evidence, showing that his condition was incurred in or aggravated by
service, to reopen his hearing‑loss claim. R. at 58. In an April 1999 VA
compensation and pension examination report, the examiner, after
conducting a physical examination, diagnosed the appellant as having
hearing loss with tinnitus. R. at 63-66. The appellant, in May 1999,
testified at an RO hearing regarding, inter alia, his in‑service
exposure to noise and his experience of having had ringing in his ears
both during and since service. R. at 70-107. In a July 22, 1999,
decision, the RO, inter alia, determined that the appellant had not
submitted new and material evidence to reopen his claim for service
connection for hearing loss, right ear, and denied as not well grounded
his claim for service connection for tinnitus. R. at 121. The appellant
timely appealed that decision (R. at 124, 140), and, in September 1999,
the RO issued to him a Statement of the Case (SOC) (R. at 128-36).

While the appellant\'s claims were pending before the Board, **Congress
enacted the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
114 Stat. 2096 (Nov. 9, 2000) (VCAA). The VCAA, inter alia, amended
38 U.S.C. § 5107(a) to eliminate the well-grounded-claim requirement.
VCAA § 4. Pursuant to section 7(a)(2) of the VCAA, that amendment to
section 5107(a) is applicable to \"any claim . . . filed before the date
of the enactment of \[the VCAA\] and not final as of that date.\" VCAA
§ 7(a). The VCAA also amended 38 U.S.C. § 5103 (\"Notice to claimants of
required information and evidence\") and added 38 U.S.C. § 5103A (\"Duty
to assist claimants\"). VCAA § 3(a). The amended duty to notify requires
the Secretary, upon receipt of a complete or substantially complete
application, to notify a claimant of any information or evidence
necessary to substantiate the claim and \"which portion of \[the\]
information and evidence, if any, is to be provided by the claimant and
which portion, if any, the Secretary . . . will attempt to obtain on
behalf of the claimant.\" 38 U.S.C. § 5103(a) (2001); *see* 66 Fed. Reg.
45,620, 45,630 (Aug. 29, 2001) (to be codified at 38 C.F.R. § 3.159(b)).
Under new section 5103A, the Secretary\'s duty to assist a claimant
includes, inter alia,** \"providing a medical examination or obtaining a
medical opinion when such an examination or opinion is necessary to make
a decision on the claim.\" 38 U.S.C. § 5103A(d). The Secretary

> shall treat an examination or opinion as being necessary . . . if the
> evidence of record before the Secretary, taking into consideration all
> information and lay or medical evidence (including statements of the
> claimant) --
>
> \(A\) contains competent evidence that the claimant has a current
> disability, or persistent or recurrent symptoms of disability; and
>
> \(B\) indicates that the disability or symptoms may be associated with
> the claimant\'s active military, naval, or air service; but
>
> \(C\) does not contain sufficient medical evidence for the Secretary
> to make a decision on the claim.

38 U.S.C. § 5103A(d)(2). That new section further provides that nothing
in 38 U.S.C. § 5103A \"shall be construed to require the Secretary to
reopen a claim that has been disallowed except when new and material
evidence is presented or secured.\" 38 U.S.C. § 5103A(f).

In a December 5, 2000, Supplemental SOC (SSOC), the RO, noting that the
applicable law no longer contained the well‑grounded‑claim requirement,
denied the appellant\'s claim for service connection for tinnitus on the
ground that such condition was not incurred in service. R. at 148-49.
Later that month, the appellant requested that the RO consider his
claims \"under the VCAA . . .\[,\] including the obtaining of necessary
medical opinions.\" R. at 151; *see* R. at 179, 184. In May 2001, the
appellant testified at a BVA hearing as to, inter alia, his exposure to
noise in service and the ringing in his ears both during and since
service. R. at 168-84.

In the August 2001 Board decision on appeal, the BVA initially stated
that, in the July 1999 RO decision, the September 1999 SOC, and the
December 2000 SSOC, the appellant was notified of the evidence needed to
reopen his claim for hearing loss, right ear, and to substantiate his
tinnitus claim. R. at 5. The Board indicated that, although he had been
given the opportunity to do so, the appellant had not satisfactorily
identified post‑service treatment records that VA could attempt to
obtain and that the appellant had been provided with a VA examination
and two personal hearings. *Id*. The Board then stated that it was
\"satisfied that the notice and duty\[‑\]to\[‑\]assist provisions of the
\[VCAA\] ha\[d\] been satisfied.\" R. at 5. With respect to the
appellant\'s hearing‑loss claim, the BVA noted that the evidence
submitted since the RO\'s October 1945 denial of that claim included,
inter alia, the April 1999 VA examination showing bilateral
sensorineural hearing loss, worse on the right side. R. at 4; *see* R.
at 63-66. The Board further noted that such evidence also included (1)
the appellant\'s testimony at a 1999 RO hearing and a 2001 BVA hearing
at both of which he related his in‑service exposure to noise from the
rifle range, bombing, artillery fire, trucks, and heavy equipment and
his experience of having had ringing in his ears during and ever since
service (R. at 4, 6; *see* R. at 78, 89-102, 170-73) and (2) his
daughter\'s testimony at the 2001 BVA hearing at which she related her
observations of the appellant\'s hearing loss (R. at 4, 6; *see* R. at
180-81). Regarding these items of evidence, the Board concluded, inter
alia, that, because such evidence did not establish a nexus between the
appellant\'s current hearing loss and his period of active service, it
was not material evidence (R. at 6); the Board, therefore, denied
reopening (R. at 6, 7). With respect to the appellant\'s tinnitus claim,
the BVA concluded both that there was no evidence of record linking the
appellant\'s tinnitus to his period of active service and that such
condition was not incurred in or aggravated by active service; the
Board, therefore, denied the claim. R. at 7.

On appeal, the appellant argues in essence that VA failed to fulfill its
duty to assist him under 38 U.S.C. § 5103A. In this regard, the
appellant contends that, because there is competent evidence of record
that he currently has disabilities, i.e., a diagnosis of hearing loss
with tinnitus, and that he was exposed to acoustical trauma during his
\"combat duties in W\[orld\] W\[ar\] II,\" i.e., his testimony at two
hearings, VA was required to provide him with a medical examination or
to obtain a medical opinion addressing whether there is a nexus between
each of his current disabilities and his active service. Appellant\'s
Brief (Br.) at 5-6. The appellant further argues that VA failed to
fulfill its duty to notify under 38 U.S.C. § 5103(a). *Id*.

The Secretary initially responds that, because there is no evidence of
record to connect the appellant\'s hearing loss to his active service
and because there is no evidence establishing in‑service incurrence of
tinnitus and no evidence connecting the appellant\'s tinnitus to his
active service, the Board\'s August 2001 decision as to each of the
appellant\'s claims is supported by a plausible basis in the record.
Secretary\'s Br. at 4-8. The Secretary next contends that VA satisfied
its duty to notify. Secretary\'s Br. 9-10. With respect to the duty to
assist, the Secretary contends that the provisions of 38 U.S.C. § 5103A
are not applicable to \"new and material evidence claims,\" i.e., the
appellant\'s request to reopen his hearing‑loss claim. Secretary\'s Br.
at 10-11. The Secretary finally contends that, because there was \"\'no
reasonable possibility\'\" that further assistance to the appellant
\"would provide a nexus between \[either of his\] current hearing
conditions and \[his active\] service,\" VA satisfied its duty to assist
the appellant. Secretary\'s Br. at 11 (quoting 38 U.S.C. § 5103A(a)(2)).

**II. Analysis**

**\"\[W\]here the law or regulation changes after a claim has been filed
or reopened but before the administrative or judicial appeal process has
been concluded, the version most favorable to \[the\] appellant should
. . . apply unless Congress provided otherwise or permitted the
Secretary . . . to do otherwise and the Secretary did so.\" *Karnas v.
Derwinski*, 1 Vet.App. 308, 313 (1991); *see Holliday v. Principi*,
14 Vet.App. 280, 286 (2001) (holding that VCAA provisions are
potentially applicable to claims pending on date of VCAA enactment),
*overruled in part by Dyment v. Principi*, 287 F.3d 1377, 1385 (Fed.
Cir. 2002), *and Bernklau v. Principi*, 291 F.3d 795, 806 (Fed. Cir.
2002) (VCAA does not apply retroactively to require remand of claims on
appeal to United States Court of Appeals for Veterans Claims or United
States Court of Appeals for the Federal Circuit on date of VCAA
enactment). The Board is required to provide a written statement of the
reasons or bases for its findings and conclusions on all material issues
of fact and law presented on the record; the statement must be adequate
to enable a claimant to understand the precise basis for the Board\'s
decision, as well as to facilitate review in this Court. *See* 38 U.S.C.
§ 7104(a), (d)(1); *Weaver v. Principi*, 14 Vet.App. 301, 302 (2001)
(per curiam order); *Allday v. Brown*, 7 Vet.App. 517, 527 (1995);
*Gilbert v. Derwinski*, 1 Vet.App. 49, 57 (1990).**

**With respect to both the reopening of his hearing‑loss claim sought by
the appellant and his tinnitus claim, the Board failed to discuss
adequately the amended duty to notify, which amendment occurred while
his claim was pending at the BVA. Specifically, the Board failed to
discuss the requirement that the required notice to the appellant of the
information and evidence necessary to substantiate his claim indicate
which portion of any such information or evidence is to be provided by
which party and failed to discuss whether the documents that it
referenced (the** July 1999 RO decision, the September 1999 SOC, and the
December 2000 SSOC**) or any other document in the record satisfied that
requirement. *Cf*. *Quartuccio v. Principi*, 16 Vet.App. 183, 187
(2002).** The Court thus concludes that the Board failed to consider
adequately \"all . . . applicable provisions of law\" and to provide an
adequate statement of reasons or bases for its decision. 38 U.S.C.
§ 7104(a), (d)(1); *see Weaver*, *Allday*, and *Gilbert*, all *supra*.

**It is unclear whether the appellant is arguing that the 38 U.S.C.
§ 5103A duty to assist is applicable to his hearing‑loss claim. In this
regard, the Court notes that, if the appellant so wishes, he will be
free on remand to raise any duty‑to‑assist issue as to this claim. *See
Kutscherousky* *v. West*, 12 Vet.App. 369, 372-73 (1999) (per curiam
order)** (regarding appellant\'s right to submit additional evidence and
argument on remand)**; *Fletcher* *v. Derwinski*, 1 Vet.App. 394, 397
(1991) (remand is meant to entail critical examination of justification
for decision; Court expects that BVA will reexamine evidence of record,
seek any other necessary evidence, and issue timely, well-supported
decision); *see also Best v. Principi*, 15 Vet.App. 18, 20 (2001) (per
curiam order) (because of as yet unknown factual and legal context in
which claim readjudication will occur, absent \"appropriate
circumstances,\" Court refrains from exercising, either sua sponte or at
appellant\'s request, its discretion to address each assertion of BVA
error once it is determined that VCAA necessitates remand).**

**As to the appellant\'s tinnitus claim, the Court agrees with the
appellant that VA failed to fulfill its duty to assist him under
38 U.S.C. § 5103A. In this regard, as reflected in the record and as
acknowledged by the Board in the decision on appeal, the appellant has
been diagnosed as having tinnitus; therefore, there is of record
\"competent evidence that \[he\] has a current disability.\" 38 U.S.C.
§ 5103A(d)(2)(A); R. at 7, 63-66; *see Caluza v. Brown*, 7 Vet.App. 498,
504 (1995) (where determinative issue involves either medical etiology
or medical diagnosis, competent medical evidence is required);**
D[orland\'s]{.smallcaps} I[llustrated]{.smallcaps} M[edical]{.smallcaps}
D[ictionary]{.smallcaps} 1714 (28th ed. 1994) (defining tinnitus as \"a
noise in the ears, such as ringing, buzzing, roaring, or clicking\")**.
Further, the record reflects that the appellant has provided lay
evidence, specifically his testimony at the 1999 RO hearing and at the
2001 BVA hearing, that he had experienced ringing in his ears (i.e.,
tinnitus) in service and that he has experienced such ringing ever since
service. R. at 90, 93, 102-03, 171-73, 175-76. Regarding such lay
evidence, the appellant is competent to so testify because ringing in
the ears is capable of lay observation. *See Caluza*, *supra* (where
determinative issue does not require medical expertise, lay evidence may
suffice by itself); *Falzone v. Brown*, 8 Vet.App. 398, 406 (1995); *see
also Layno v. Brown*, 6 Vet.App. 465, 469-70 (1994) (lay evidence is
competent to establish features or symptoms of injury or illness). The
Court concludes, therefore, that, in the instant case, because there is
of record lay evidence of in‑service tinnitus and of tinnitus ever since
service and medical evidence of a current diagnosis, such evidence
suffices to \"indicate\[\] that \[the appellant\'s\] disability . . .
may be associated with \[his\] active . . . service.\" 38 U.S.C.
§ 5103A(d)(2)(B); *see* 38 U.S.C. § 5103A(d)(2) (Secretary is to take
into consideration all lay or medical evidence of record, including
statements of claimant).**

**Thus, there is evidence of record satisfying two of the requirements
of the statute, i.e., competent evidence of a current disability and
evidence indicating an association between the appellant\'s disability
and his active service (*see* 38 U.S.C. § 5103A(d)(2)(A), (B)), but
there is not of record, as relied upon in part by the Board in denying
his claim, competent medical evidence addressing whether there is a
nexus between his tinnitus and his active service (*see* 38 U.S.C.
§ 5103A(d)(2)(C)). Because a medical nexus opinion was \"necessary to
make a decision on the \[appellant\'s\] claim,\" VA erred in failing to
obtain such a medical nexus opinion in this case. 38 U.S.C.
§ 5103A(d)(1); *see* R. at 7 (claim denied in part because there was
\"no medical evidence linking\" appellant\'s tinnitus to his period of
service); *see also Caluza*, *supra*. The Court holds, therefore, that
the appellant is entitled to such a medical nexus opinion pursuant to
the Secretary\'s duty to assist. *See* 38 U.S.C. § 5103A(d).**

**Accordingly, for the reasons set forth above, the Court will vacate
the August 2001 Board decision and will remand the matters for
readjudication consistent with this opinion.**

**III. Conclusion**

Based upon the foregoing analysis, the record on appeal, and the
parties\' pleadings, the August 7, 2001, Board decision is VACATED and
the matters are REMANDED for readjudication consistent with this
opinion. **On remand, the appellant is free to submit additional
evidence and argument on the remanded claims in accordance with
*Kutscherousky*, *supra*. The Board shall proceed expeditiously, in
accordance with section 302 of the Veterans\' Benefits Improvements Act
of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (found at
38 U.S.C. § 5101 note) (requiring Secretary to provide for \"expeditious
treatment\" of claims remanded by Board or Court).**