Citation Nr: 0811182 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 05-24 731 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD B. Morton, Associate Counsel INTRODUCTION The veteran served on active duty from September 1988 to September 1991 and from November 2002 to June 2003. This matter is before the Board of Veterans' Appeals (Board) from a September 2004 decision and notice of decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which denied service connection for bilateral hearing loss and tinnitus. Thereafter, in November 2004, the RO issued another decision, which continued these denials. In December 2004, the RO provided a notice of this decision, and the veteran timely filed a Notice of Disagreement (NOD). Subsequently, in June 2005 the RO provided a Statement of the Case (SOC), and thereafter, in July 2005, the veteran timely filed a substantive appeal. The veteran requested a Travel Board hearing on this matter, which was held in January 2008 where the veteran presented as a witness before the undersigned veterans law judge. A transcript of the hearing is of record. At the hearing, the veteran, through his accredited representative, requested that the Board hold open the record for an additional sixty days to afford the veteran an opportunity to supply additional evidence, which the Board granted. See Hearing Transcript at 10. Additionally, the veteran submitted a request to advance his case on the Board's docket pursuant to 38 C.F.R. § 20.900(c), which was granted in February 2008. In a February 2008 document, the veteran relinquished his right to have the RO consider, in the first instance, any additional evidence offered. The Board accepts this as a valid waiver of RO consideration. 38 C.F.R. § 20.1304(c). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required on his part. REMAND The Board finds that additional development is warranted to address the merits of the veteran's claims. 38 C.F.R. § 19.9 (2007). A summation of the relevant evidence is set forth below. a. Factual Background In his August 1988 Report of Medical Examination for Navy Enlistment, contains a normal clinical assessment of the ears. Audiometric testing indicated that the veteran had normal hearing in the right ear, with decibels of 15, 15, 5, 5 and 15 reported for frequencies of 500, 1000, 2000, 3000 and 4000 hertz respectively; and abnormal hearing in the left ear, with decibels of 15, 10, 5, 20 and 50 reported at frequencies of 500, 1000, 2000, 3000, and 4000 hertz respectively. The veteran's DD Form 214 indicates that he served as an engineman. A September 1999 Report of Medical Examination for Navy Reserve Enlistment reflects the following audiological scores: For the threshold test, in the right ear, decibels of 10, 5, 5, 5 and 30 were reported for frequencies of 500, 1000, 2000, 3000 and 4000 hertz respectively; in the left ear, decibels of 15, 10, 5, 35 and 60 were reported at frequencies of 500, 1000, 2000, 3000, and 4000 hertz respectively. This report does not appear to contain the Maryland (CNC) word list speech recognition test, but the examiner diagnosed the veteran with mild to moderate loss of hearing at higher frequencies. A June 2003 Report of Medical Examination for Separation from active duty contains the following audiometric scores: For the threshold test, in the right ear, decibels of 10, 10, 5, 10 and 35 were reported for frequencies of 500, 1000, 2000, 3000 and 4000 hertz respectively; in the left ear, decibels of 10, 10, 5, 45 and 65 were reported at frequencies of 500, 1000, 2000, 3000, and 4000 hertz respectively. In the companion Report of Medical History, the veteran indicated that he had hearing loss or wore a hearing aid. A physician noted that the veteran had bilateral high frequency hearing loss. In an October 2003 letter, the RO sent a letter to the Department of the Navy, Personnel Support Activity Detachment in New Orleans, Louisiana. It is unclear whether this specific entity ever responded to the request for records. In December 2003 the veteran underwent a VA audiological examination. The audiologist did not review the medical records. At this time the veteran reported having hearing difficulties and intermittent tinnitus for the past thirteen years and noted that he had significant noise exposure during his active service until 1991. The audiological examination, which included a puretone threshold test and a Maryland (CNC) word list test, generated the following scores: For the puretone threshold test, in the right ear, decibels of 10, 10, 10, 15 and 35 were reported for frequencies of 500, 1000, 2000, 3000 and 4000 hertz respectively; in the left ear, decibels of 10, 10, 10, 50 and 65 were reported at frequencies of 500, 1000, 2000, 3000, and 4000 hertz respectively. The Maryland (CNC) word list speech recognition test demonstrated 98 percent for the right ear and 96 percent for the left ear. Based on these data, the audiologist diagnosed the veteran with mild to moderate sensorineural hearing loss of the right ear at and above 4000Hz, and moderate to severe sensorineural hearing loss at and above 3000Hz. The audiologist offered no opinion as to the likely etiology of the veteran's diagnosed hearing loss or tinnitus. Instead, he noted generally that certain factors such as noise exposure, any ear disease, certain medications, sinus infection/congestion, allergies, TMJ disorders, cardiovascular disease, under active thyroid and heard or neck trauma may cause or aggravate tinnitus. In May 2004, the RO requested that the Bureau of Naval Personnel attempt to locate the veteran's service records. It appears, however, that the Navy Personnel Command liaison offered no response, except for an indication that "medical records after 31 Jan 94 - Send request to: Department of Veterans Affairs, PO BOX 150950 St. Louis, MO 63115-8950." The contact person did not however, make any mention of whether the Bureau of Naval Personnel might have access to service records prior to January 1994 (i.e., relevant to the instant case, those date September 1988 through September 1991). In July 2004, the RO sent a letter to the commanding officer of the NAS Joint Reserve Base in New Orleans, Louisiana. An August 2004 correspondence from the Naval Reserve Personnel Center in New Orleans, Louisiana, indicates that all available documents had been forwarded as requested and that any other pertinent records could be located at VA's service medical records center in St. Louis, Missouri. In September 2004 the Naval Reserve Personnel Center in New Orleans, Louisiana, indicated that it had forwarded all available documents requested, and directed the RO to seek additional records at the VA Service Medical Records Center in St. Louis, Missouri. In a September 2004 Memorandum, a military records specialist made a formal finding that the veteran's service medical records were not available for review. The specialist indicated that "[a]ll efforts to obtain the needed military information have been exhausted; further attempts are futile and that, based on these facts, the record is not available." He further indicted that VA had sought to obtain the veteran's service records from the National Personnel Records Center in St. Louis, Missouri; the Naval Reserve Personnel Center in New Orleans, Louisiana; and the Navy Headquarters in Millington, Texas. Defense Personnel Records Imagining System (DPRIS) was apparently negative for images of the veteran, and, in August 2004, the Navy Headquarters in Millington, Texas indicated that it did not maintain service medical records. As reflected in his December 2004 NOD and July 2005 substantive appeal, the veteran conveyed that he received treatment for bilateral hearing loss and tinnitus during his period of active service in 1989 while stationed aboard the USS Mountain (Mount) Baker 34 in Charleston, South Carolina. May 2006 and August 2006 statements by the veteran and his accredited representative indicate that the Naval Reserve unit misplaced his service medical records. In the May 2006 correspondence, the veteran indicated that his hearing had worsened. An August 2007 private audiological examination generated the following scores: For the threshold test, in the right ear, decibels of 10, 10, 5, 10 and 45 were reported for frequencies of 500, 1000, 2000, 3000 and 4000 hertz respectively; in the left ear, decibels of 5, 5, 5, 50 and 65 were reported at frequencies of 500, 1000, 2000, 3000, and 4000 hertz respectively. This report does not reflect that the examiner conducted a Maryland (CNC) word list speech recognition test, but the clinician diagnosed the veteran with left ear moderate hearing loss in low to mid pitches, and severe hearing loss in the high frequencies, and normal right hear hearing in the low and mid pitches with moderate hearing loss in the high frequencies. At his January 2008 Travel Board hearing, the veteran testified that he served as engine and base relief aboard the USS Ronald Major, which required him to maintain all diesel engines and small boats for twelve to fourteen hours daily. Hearing Transcript at 4. He indicated that he used double ear protection in the form of Styrofoam and big ear muffs to safeguard his ears against the loud engine noise over a period of approximately two years. Hearing Transcript at 4- 5, 11. Prior to entering active service, the veteran indicated that he had had good hearing, but he stated that he began to notice hearing problems while on active duty. Hearing Transcript at 5. Currently, the veteran did not wear hearing aids, but he noted that he experienced difficulty hearing due to constant tinnitus when in the presence of background noise. Hearing Transcript at 6-7. He also described favoring his right ear over his left ear. Hearing Transcript at 7. Since his service discharge, the veteran had worked for the New Orleans Fire Department for three years, and then worked at the New Orleans Police Department for ten years, which had exposed him to noise at a gun range. Hearing Transcript at 8, 12. Since 2001 he has worked as a truck driver. Hearing Transcript at 8. As for any recent noise exposure, the veteran testified that he had exposure to saws and drills, as well as other power tools that he used to rebuild his house, which had been destroyed after Hurricane Katrina. Hearing Transcript at 8. He had used hearing protection while using such tools. Hearing Transcript at 8. In terms of his tinnitus, the veteran conveyed that he had constant ringing in the left ear only, which he first noticed in 1991 after he went off active duty. Hearing Transcript at 8-9. The veteran stated that his hearing maladies had worsened since his service discharge. Hearing Transcript at 13. In addition, the veteran discussed how some of his service records could not be located, and his representative requested that the Board attempt to acquire said records through contacting the veteran's unit directly. Hearing Transcript at 2, 14-15. b. Discussion The Board determines that additional development of the record must occur in order to fully and fairly adjudicate the veteran's claims. In particular, while the record contains a recent private audiological examination, dated August 2007, which suggests that the veteran currently has a hearing loss "disability" in the right and left ears, this report did not contain results of the Maryland CNC Test or a medical nexus opinion, and it is unclear to the Board whether the testing performed conformed with the puretone threshold method required by 38 C.F.R. § 4.85(a). See 38 C.F.R. § 4.85(a) ("An examination for hearing impairment for VA purposes must . . . include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test.") (emphasis added). In addition, the December 2003 VA audiological examination, while containing the appropriate speech recognition testing, lacks any medical nexus opinion regarding the likely etiology of the veteran's hearing loss and tinnitus. The Board finds that a fresh VA audiological examination and an ear examination complete with medical nexus opinions and appropriate testing are warranted. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Also, as noted above, the veteran's September 1988 Report of Medical Examination for Navy Enlistment indicates that at 4000 Hz, the veteran generated a score of 50 decibels, which indicates under 38 C.F.R. § 3.385, that the veteran had a hearing loss "disability" of the left ear at the time he entered active duty. See 38 C.F.R. § 3.385 (providing that "impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater . . . .") (emphasis added). In such a circumstance, where a veteran has a preexisting disability prior to service that is noted upon service entry, he cannot bring a claim for "incurrence" service connection for that disorder, but may only bring a claim for service connected "aggravation" of that disorder. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) ("if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder"); accord Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994); Paulson v. Brown, 7 Vet. App. 466, 468 (1995) ("If a disability is found to have preexisted service, then service connection may be predicated only upon a finding of aggravation during service"). In such a case, "[a] preexisting injury or disease will be considered to have been aggravated by active . . . service, where there is an increase in disability during such service . . . ." 38 C.F.R. § 3.306(a). When claiming entitlement to service connection for the aggravation of a preexisting condition, a veteran need not establish a causal link between his military service and the deterioration of his preservice disability, but he bears the burden of proving that an aggravation, or permanent increase in severity, occurred in service. Wagner, supra (noting that the "burden falls on the veteran to establish aggravation"); Laposky v. Brown, 4 Vet. App. 331, 334 (1993). Temporary or intermittent flare- ups during service of a preexisting injury or disease are not sufficient to constitute "aggravation in service" unless the underlying condition, as contrasted to the symptoms, is worsened, and aggravation may not be conceded where the disability underwent no increase in severity during service. Jenson, supra; Paulson, supra ("The presumption of aggravation . . . is not applicable unless the preservice disability underwent an increase in severity during service"); Routen v. Brown, 10 Vet. App. 183, 189 n.2 (1997) (noting that in order to establish aggravation, the preexisting disorder must have undergone "a lasting worsening . . . that is, a worsening that existed at the time of separation . . . ."); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991); see also Verdon v. Brown, 8 Vet. App. 529, 538 (1996). In determining whether such aggravation occurred the Board must give "[d]ue regard . . . [to] the places, types, and circumstances of service and particular consideration will be accorded combat duty and other hardships of service," and [t]he development of symptomatic manifestations of a preexisting disease or injury during or proximately following action with the enemy . . . will establish aggravation of a disability." 38 C.F.R. § 3.306(b)(2). Where an in-service increase in severity has been shown, VA may rebut the presumption of aggravation by demonstrating that "the [in-service] increase in disability is due to the natural progress of the disease," and it must do so by offering "[c]lear and unmistakable evidence (obvious or manifest)" in this regard. 38 C.F.R. § 3.306(a), (b); accord Wagner, supra. The AMC/RO therefore must adjudicate this particular issue, with appropriate consideration of the fresh VA audiological examination with these principles in mind. The Board also notes that while both the veteran and the RO have made numerous attempts to obtain his missing service medical records, the AMC/RO should again attempt to acquire any available records, given the questionably complete replies received from various records depositories. The AMC/RO should request and associate with the claims file clear negative responses from the record depositories for those records that cannot be found. Accordingly, the case is remanded for the following action: 1. The AMC/RO must review the record and ensure compliance with all notice and assistance requirements set forth in the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.159 (2007). Notice consistent with 38 U.S.C.A § 5103(a) and 38 C.F.R. § 3.159(b)(1) with respect to the claims must: (a) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim for the benefit sought; (b) inform the claimant about the information and evidence that VA will seek to provide; (c) inform the claimant about the information and evidence the claimant is expected to provide; and (d) request that the claimant provide any evidence in the claimant's possession that pertains to the claim. The AMC/RO should provide the veteran with VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes an explanation as to the information or evidence needed to establish ratings and effective dates for the benefit sought as outlined by the Court of Appeals for Veterans Claims in Dingess v. Nicholson, 19 Vet. App. 473, 484, 486 (2006). 2. The AMC/RO should make efforts to locate and obtain the veteran's service medical records, to include contacting the National Personnel Records Center (NPRC); the United States Army & Joint Services Records Research Center (JSRRC); the Naval Joint Reserve Base in New Orleans, Louisiana; the Bureau of Naval Personnel in Millington, Tennessee; and other appropriate records depositories. In addition, the AMC/RO should request morning/sick reports associated with the USS Mount Baker and USS Ronald Major from September 1, 1988 through September 30, 1991. The AMC/RO should request that a clear, negative response be provided if said depositories cannot locate the veteran's records. 3. The veteran then must be afforded VA audiological and ENT examinations for the purpose of determining: (1) the likely etiology of any right ear hearing loss; (2) the likely etiology of any tinnitus; and (3) whether the veteran's pre-existing (pre-service) left ear hearing loss disability was likely aggravated by his active service or any incident thereof. The audiological examination must conform with the testing requirements enunciated in 38 C.F.R. § 4.85, to include (a) conducting of the test by a state-licensed audiologist; (b) performance of a controlled speech discrimination test (Maryland CNC); and (c) performance of a puretone audiometry test. All tests are to be performed without the use of hearing aids. The ENT examiner should review relevant portions of the claims file and indicate as such in the examination report. Following a review of the relevant medical evidence in the claims file, obtaining a history from the veteran, the physical examination, and any tests that are deemed necessary, the ENT examiner is requested to answer the following questions: (a) If the clinician determines that the veteran currently suffers from right ear hearing loss, is it at least as likely as not (50 percent or greater probability) that said hearing loss began during service or as the result of any incident of active duty, to include loud noise exposure as an engineman? (b) If the clinician determines that the veteran currently suffers from tinnitus (bilateral or unilateral), is it at least as likely as not (50 percent or greater probability) that said tinnitus began during service or as the result of any incident of active duty, to include loud noise exposure as an engineman? (c) Is it at least as likely as not (50 percent or greater probability) that the veteran's pre-existing left ear hearing loss disability, to include impaired hearing at 4000 hertz, was aggravated beyond its natural progression by his active service or any incident thereof, to include loud noise exposure as an engineman? The ENT examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship or a finding of aggravation; less likely weighs against the claim. The ENT examiner is also advised that "aggravation" is defined for VA compensation purposes as a chronic worsening of the underlying disability versus a temporary flare-up of symptoms. The ENT examiner is also requested to provide a rationale for any opinion expressed, and is advised that if a conclusion cannot be reached without resort to mere speculation, s/he should so indicate in the examination report. 3. Then, after completion of any other notice or development indicated by the state of the record, with consideration of all evidence added to the record subsequent to the last SSOC, the AMC/RO must readjudicate the veteran's claims. If either claim remains denied, the AMC/RO should issue an appropriate SSOC and provide an opportunity to respond. 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, 370 (1999) (per curiam). 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.A. §§ 5109B, 7112. ____________________________________________ R. F. WILLIAMS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252, only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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).