Citation Nr: 0811509 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 05-08 714 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to a compensable rating for bronchitis with possible bronchiectasis. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The veteran and R.M. ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The veteran had active service from October 1966 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) from an October 2004 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which denied service connection for bilateral hearing loss and for tinnitus, and found that new and material evidence had not been submitted to reopen a claim for service connection for chronic bronchitis (claimed as respiratory problems). By January 2006 rating decision, the RO granted service connection for bronchitis with possible bronchiectasis, and granted a 0 percent (non-compensable) rating, effective November 21, 2003. The veteran appealed for a higher rating. Because the veteran expressed disagreement with the initial rating; the principles enumerated in Fenderson v. West, 12 Vet. App. 119 (1999) with respect to "staged ratings" are for application with respect to the claim for a compensable rating. In January 2008, the veteran testified at a videoconference hearing at the RO before the undersigned Acting Veterans Law Judge. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND The veteran contends that he has bilateral hearing loss and tinnitus as a result of an incident during basic combat training at Fort Dix in December 1966 when he was moving through an infiltration course and he rolled near a simulated mortar pit that had a block of TNT which detonated and injured his right eardrum. He reported he ruptured his right eardrum, resulting in hearing loss, tinnitus, and a bloody discharge from his ear. He has indicated that, during service, his hearing in his right ear gradually improved, but never returned to the level he had before basic training. He claimed that what remained of the problem was the high- pitched ringing sound in his ears. The Board notes that the veteran had a period of active duty in the United States Army from October 1966 to December 1969, and then reportedly served in the U. S. Army Reserves from 1981 through 2004. He has also contended that noise exposure during his period of service in the U.S. Army Reserves aggravated his bilateral hearing loss and tinnitus. The record reflects that the veteran has bilateral hearing loss disability for VA purposes, pursuant to 38 C.F.R. § 3.385, and that tinnitus has been diagnosed as a current disability. The veteran has reported, in a February 2004 statement and in his January 2008 testimony, that he complained of hearing loss after his separation from service, and that he underwent a hearing test in January or February 1970 at the Newark VA medical facility, and that at that time he was reportedly told he had some hearing loss. A review of the record shows that in February 1970 he underwent a VA examination at the Newark "VAOPS", and that his only complaint at that time was of a persistent productive cough. In the Request for Physical Examination (VA Form 21-2507), it was noted that the types of examinations needed were "GM" and "chest", and the boxes next to "ear" and "audio" were unmarked. Thus, it does not appear that the veteran underwent any ear or audiometric examination in conjunction with this February 1970 examination. Nonetheless, the Board finds that pursuant to VA's duty to assist the veteran, and since such records may be pertinent to the veteran's claim, an attempt to locate these documents from January or February 1970 should be made. 38 U.S.C.A. § 5103A(b)(c) (West 2002); 38 C.F.R. § 3.159(c)(d) (2007). With regard to the veteran's Reserve service, the Board notes that service-connected disability compensation is payable for disability incurred or aggravated during active military, naval, or air service. 38 U.S.C.A. § 101(24) defines the term "active military, naval, or air service" as including active duty and any period of active duty for training (ADT) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty. Service connection is available for any period of inactive duty for training (IADT) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6. Physical examinations conducted during the veteran's period of service in the Reserves showed that he was first shown to have right ear hearing loss in February 1993 and bilateral hearing loss in December 1998. In support of his claim, the veteran has submitted several statements from fellow servicemembers who support the veteran's claim that he was exposed to excessive noise during his period of service in the Reserves. The Board also notes that the veteran underwent a VA audiological examination in September 2004. He reported he had hearing loss since 1966 when he ruptured his right tympanic membrane while in service, and he also reported constant, bilateral tinnitus since service. After reviewing the veteran's claims file, and noting that the veteran's separation examination showed hearing within normal limits, the VA examiner opined that the veteran's current hearing loss and reported tinnitus were "less likely as not caused by or a result of noise exposure while on active duty". In support of his claim, the veteran submitted a March 2004 letter from a private audiologist, R.M., who had evaluated the veteran in March 2004. R.M. noted that the veteran reported having ruptured his right tympanic membrane during basic training during active duty in the U.S. Army from October 1966 to December 1969, and that he had had immediate tinnitus. It was noted that the right tympanic membrane had healed, but the bilateral tinnitus persisted. It was noted that the veteran had also described having had significant noise exposure during active duty from various weapons systems and equipment. R.M. noted that the veteran's test results showed mild to severe sensorineural hearing loss bilaterally. R.M. concluded that it was "more likely than not" that the veteran's hearing loss and persistent tinnitus were the result of his "exposure and traumatic noise levels while on active duty" in the U.S. Army. R.M. also testified at the January 2008 hearing on behalf of the veteran and reiterated his contentions from the March 2004 letter, finding that the veteran's hearing evaluation showed he sustained acoustic trauma to the right ear and that the left ear hearing loss was "most likely due to what he related as shooting M-14s on the qualifying range without hearing protection". R.M. basically indicated that he had only reviewed medical records from the veteran's period of Reserve service. In order to determine whether service connection is warranted for either bilateral hearing loss or tinnitus, the nature of the veteran's Reserve service should be clarified. Additionally, in order to reconcile the two medical opinions, a medical opinion should be obtained to determine the relationship, if any, between his various periods of service and his bilateral hearing loss and tinnitus. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). With regard to his claim for a compensable rating for service-connected bronchitis with possible bronchiectasis, the veteran essentially contends that his respiratory problems, which had their onset in service and continue to this day, have not been properly diagnosed. He claims that as a result, he has had a chronic productive cough since service. Although even after the "correct' diagnosis is "sorted out," the rating criteria and corresponding eventually-assigned rating may be basically the same, the Board nonetheless believes that the proper diagnosis for the veteran's service-connected respiratory condition should be established. While there is an August 2005 private respiratory examination report of record and a VA examination of record dated in November 2005, the Board notes that there are discrepancies between these two examinations - especially with regard to the interpretation of the related chest x-rays and with regard to the final diagnoses. In that regard, and at least in part due to the length of time since the last VA examination, the Board concludes that a current VA examination is necessary. VA's statutory duty to assist the veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Thus, pursuant to VA's duty to assist the veteran, another VA examination should be scheduled to determine the correct diagnosis for and current severity of the veteran's service-connected respiratory disability. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2007). During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a pertinent holding in Vasquez-Flores v. Peake, 22 Vet. App. 37 (2008), which mandates certain due process procedures for cases involving increased ratings. The Board is confident that the VARO/AMC will fully address that mandate on remand. Accordingly, the case is REMANDED for the following action: 1. Obtain the complete service personnel records for the veteran, to include records from his period of service in the U.S. Army Reserves. If any of the Reserve service can be characterized as active duty for training or inactive duty training, this fact should also be documented as to each separately identifiable period of service. 2. Attempt to obtain any hearing or audiological test that the veteran may have undergone in either January or February 1970 at the Newark VA medical facility. A negative response should be requested. The mandates for VA to follow in assisting the veteran in obtaining VA treatment records, as set out in 38 U.S.C.A. § 5103A(b)(c) and 38 C.F.R. § 3.159(c)(d), should be followed. 3. Request that the veteran provide any additional information pertaining to any treatment he may have received for respiratory problems since November 2003. If the veteran provides sufficient identifying information and such records are not in the claims file, an attempt to obtain any such records should be made, pursuant to the laws and regulations pertaining to VA's duty to assist. 4. Schedule the veteran for a VA examination, including audiometric testing, to determine the probable etiology of his bilateral hearing loss and tinnitus. The claims file should be provided to the examiner and reviewed by the examiner in conjunction with the examination. The examiner is asked to indicate whether it is at least as likely as not (i.e., to 50 percent degree of probability or greater) that bilateral hearing loss and/or tinnitus were incurred during an eligible period of military service. If it is determined instead that either of the conditions clearly and unmistakably pre-existed a period of eligible service, then the examiner is asked to indicate whether the condition was aggravated during that period of service, beyond the natural progression of the disease. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it Note: The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability 5. Schedule the veteran for a VA pulmonary examination. The claims folders should be made available to the examiner for review in conjunction with the testing. The examiner should set forth all examination findings, and should note the exact nature of the veteran's service-connected respiratory disability and a detailed account of all manifestations of his respiratory disability found to be present. The examination should include pulmonary function testing, with results for Forced Expiratory Volume (FEV-1), the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV- 1/FVC), and Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)). Any other disability resulting from the veteran's service- connected respiratory disability should also be noted. The examiner should provide a complete rationale for all conclusions. 6. The veteran should then be furnished with the pertinent provisions of 38 C.F.R. § 4.97, Diagnostic Codes 6600 and 6601 (2008) governing the evaluation of service-connected chronic bronchitis and bronchiectasis. Following such notice, the issue of an increased rating for the veteran's service-connected respiratory disorder, as well as the other issues on appeal, should be readjudicated. If any determination remains unfavorable to the veteran, he should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim(s) for benefits, to include a summary of the evidence and applicable law and regulations considered. The veteran should also be given an opportunity to respond to the SSOC. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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 (West Supp. 2007). ______________________________________________ S. F. SYLVESTER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs