Citation Nr: 1012467	
Decision Date: 04/02/10    Archive Date: 04/14/10

DOCKET NO.  09-11 725	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, 
New York


THE ISSUES

1.  Entitlement to service connection for bilateral hearing 
loss.

2.  Entitlement to service connection for chronic fatigue 
syndrome.


REPRESENTATION

Appellant represented by:	New York State Division of 
Veterans' Affairs


ATTORNEY FOR THE BOARD

K. J. Kunz, Counsel




INTRODUCTION

The Veteran served on active duty from June 1977 to April 
1983, from November 1990 to July 1991, and from May 2004 to 
November 2005.  He served in Southwest Asia during the 
second and third periods of active duty.  During the years 
between and after periods of active duty, the Veteran was a 
civilian employee of the New York Army National Guard.  He 
was also a member of the National Guard for many years, and 
had periods of active duty for training.

This appeal comes before the Board of Veterans' Appeals 
(Board) from a June 2007 rating decision by the Buffalo, New 
York Regional Office (RO) of the United States Department of 
Veterans Affairs (VA).  In that decision, the RO denied 
service connection for hearing loss and chronic fatigue 
syndrome.  The Veteran also appealed the RO's denial in that 
decision of service connection for a psychiatric disability.  
That appeal was resolved in a January 2009 rating decision, 
when the RO granted service connection for post-traumatic 
stress disorder (PTSD).

In the January 2009 rating decision, the RO also granted 
service connection for tinnitus, and assigned a 10 percent 
disability rating.  In a February 2009 letter, the Veteran 
expressed disagreement with the rating assigned for 
tinnitus.  In July 2009, the RO issued a statement of the 
case (SOC) regarding the rating for tinnitus.  The claims 
file does not show that the Veteran has perfected an appeal 
of the rating for tinnitus by filing a substantive appeal.  
This issue is not in appellate status and will not be 
further addressed.  

The issue of service connection for chronic fatigue syndrome 
is addressed in the REMAND portion of the decision below, 
and is REMANDED to the RO via the Appeals Management Center 
(AMC), in Washington, DC.




FINDING OF FACT

Bilateral hearing loss was caused by noise exposure during a 
period of active service.


CONCLUSION OF LAW

The criteria for service connection for bilateral hearing 
loss is met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 
38 C.F.R. §§ 3.303, 3.385 (2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. 
No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 
(West 2002 & Supp. 2008)) redefined VA's duty to assist a 
claimant in the development of a claim for VA benefits.  VA 
regulations for the implementation of the VCAA were codified 
as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 
3.326(a) (2009).  Considering the record in light of the 
above-noted legal authority, and in view of the Board's 
favorable disposition of the claim on appeal, the Board 
finds that all notification and development action needed to 
fairly adjudicate the claim of service connection for 
bilateral hearing loss is met.

Hearing Loss

The Veteran contends that current hearing loss is 
attributable to noise exposure during one or more of his 
three periods of active service.  Service connection may be 
established for a disability resulting from disease or 
injury incurred in or aggravated by service.  38 U.S.C.A. 
§§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection may be 
granted for a 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).  When there is an approximate balance of 
positive and negative evidence regarding any issue material 
to the determination of a claim, VA shall give the benefit 
of the doubt to the claimant.  38 U.S.C.A. § 5107.  Service 
connection for hearing loss is regulated at 38 C.F.R. 
§ 3.385, which provides that:

For the purposes of applying the laws 
administered by VA, impaired hearing 
will be considered to be a disability 
when the auditory threshold in any of 
the frequencies 500, 1000, 2000, 3000, 
4000 Hertz is 40 decibels or greater; or 
when the auditory thresholds for at 
least three of the frequencies 500, 
1000, 2000, 3000, or 4000 Hertz are 26 
decibels or greater; or when speech 
recognition scores using the Maryland 
CNC Test are less than 94 percent.

38 C.F.R. § 3.385.

In Hensley v. Brown, 5 Vet. App. 155 (1993), the Court noted 
that 38 C.F.R. § 3.385, "does not preclude service 
connection for a current hearing disability where hearing 
was within normal limits on audiometric testing at 
separation from service."  5 Vet. App. at 159.  The Court 
explained that:

[W]hen audiometric test results at a 
veteran's separation from service do not 
meet the regulatory requirements for 
establishing a "disability" at that 
time, he or she may nevertheless 
establish service connection for a 
current hearing disability by submitting 
evidence that the current disability is 
causally related to service.

5 Vet. App. at 160.

The Veteran has had hearing testing on many occasions, 
including during his three periods of active service, and 
through the National Guard during other periods.  Service 
and National Guard testing consisted of audiological 
evaluation, and did not include speech audiometry.  
In December 1976, on a medical examination of the Veteran 
conducted for entry into service, audiological evaluation 
showed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
10

5
LEFT
10
5
5

15

On another audiological evaluation, in December 1980, pure 
tone thresholds, in decibels, were as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
10
0
5
0
0
LEFT
5
0
0
0
5

In a February 1983 examination for separation from active 
service, audiological evaluation showed pure tone 
thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
5
0
5
LEFT
0
5
5
5
10

In November 1990, the Veteran had an examination for entry 
into his second period of active service.  Audiological 
evaluation showed pure tone thresholds, in decibels, as 
follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
0
10
0
LEFT
10
0
10
10
15

On an audiological evaluation during active service, in 
April 1991, it was noted that the Veteran was routinely 
exposed to hazardous noise.  Pure tone thresholds, in 
decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
5
5
5
10
LEFT
10
0
5
5
25

On examination in June 1991, for separation from his second 
period of active service, audiological evaluation in 
revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
5
5
5
10
LEFT
10
0
5
5
25

In a National Guard examination in April 1996, audiological 
evaluation showed pure tone thresholds, in decibels, as 
follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
0
10
5
10
LEFT
10
0
5
10
50

The examiner recommended hearing protection.

A December 1997 letter from a Veterans Service Organization 
(VSO) to the Veteran indicates that the Veteran had recently 
contacted the VSO with the intention of submitting a claim 
based on hearing loss and Persian Gulf issues.  In February 
1998, the Veteran submitted a claim for service connection 
and compensation for multiple disabilities, including 
bilateral hearing loss.  Development letters that the RO 
sent to the Veteran were returned as undeliverable, and the 
RO apparently made no decision on the 1998 claim.

In a February 2000 National Guard examination, audiological 
evaluation showed pure tone thresholds, in decibels, as 
follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
0
5

20
LEFT
10
5
5

60

The service treatment records in the claims file do not 
include any records of treatment or examinations during the 
Veteran's third period of active service, in from May 2004 
to November 2005.  His service records indicate that he 
served in Iraq and Kuwait from November 2004 to October 
2005, and that he served in a designated imminent danger pay 
area.  The Veteran has reported that he was exposed to noise 
during that service period.  In a September 2008 VA mental 
health examination, the Veteran stated that in Iraq he 
served as a mechanic, and was in multiple combat situations.  
He related that his base was frequently attacked by mortars 
or rockets, that he was in a vehicle that was hit by an 
improvised explosive device (IED), and that he came under 
small arms fire.

In a May 2006 claim, the Veteran indicated having had 
hearing loss since his active service in 1977 to 1983.

In a November 2006 letter, a National Guard occupational 
health specialist informed the Veteran that he had sustained 
an OSHA reportable hearing loss in his left ear.

In January 2007, the Veteran had hearing testing through his 
employer, the National Guard.  The audiological evaluation 
revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
10
10
50
LEFT
5
5
5
5
60

The examiner found that the Veteran had hearing loss, and 
recommended additional testing, as well as hearing 
conservation measures.

The Veteran had hearing testing in July 2007 at a private 
audiology practice.  The Veteran reported having worked for 
the National Guard for 30 years.  He stated that he had 
worked in excessive levels of noise, and that he had used 
ear protection for the preceding twenty or more years.  On 
the testing, pure tone thresholds, in decibels, were as 
follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
5
10
55
LEFT
5
0
5
20
60

Speech audiometry revealed speech recognition ability of 100 
percent in the right ear and of 100 percent in the left ear.  
The examiner concluded that the Veteran had normal hearing 
acuity for conversational speech, but had a high frequency 
hearing loss bilaterally.

In August 2007, a National Guard physical profile indicated 
that the Veteran had hearing loss, that he was required to 
use hearing protection to prevent further hearing loss, and 
that he was not to be assigned duties with excessive noise 
exposure.

Records of private medical treatment indicate that the 
Veteran had a stroke in November 2007.

In a March 2008 statement, the Veteran indicated that he had 
lost hearing in his right ear.  Later in March 2008, the 
Veteran had a private hearing examination with T. C. C., 
M.D.  The Veteran reported a sudden onset of right ear 
hearing loss in February 2008.  Dr. C. noted that the 
Veteran had a history of acoustic trauma in the National 
Guard, and noted the July 2007 test results showing normal 
hearing for conversational speech, but bilateral high 
frequency hearing loss.  On testing of the right ear, on 
audiological evaluation, the pure tone threshold at 500 
Hertz was 100 decibels.  There was no response at 1000, 
2000, 3000, or 4000 Hertz.  Speech discrimination could not 
be tested in the right ear.  In the left ear, speech 
audiometry revealed speech recognition ability of 91 
percent.  Dr. C. stated that the most likely cause of the 
sudden hearing loss in the right ear was occlusion of blood 
vessels to the cochlea.  Dr. C. indicated that the chance of 
an acoustic neuroma being the cause was remote.

In the report of a VA audiological examination in September 
2008, the examiner reported having reviewed the claims file.  
The Veteran reported having had some impairment of hearing 
in both ears before he completely lost the hearing in his 
right ear.  He indicated that the complete loss of hearing 
in his right ear had occurred in 2007, while he was doing 
yard work.  He indicated that he had noise exposure in 
twenty years of work as a mechanic for the National Guard.  
On audiological evaluation, pure tone thresholds, in 
decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
90
105+
105+
105+
105+
LEFT
10
0
5
20
65

On speech audiometry, speech recognition ability could not 
be tested in the right ear, due to no response at equipment 
limits.  Speech recognition ability was 100 percent in the 
left ear.  The examiner noted that the Veteran's left ear 
hearing showed increased high frequency loss in 1996 and 
2000, during periods when the Veteran was not on active 
duty.  The examiner stated the Veteran's current severe 
right ear hearing loss had not been found until 2007.  The 
examiner concluded that "it is not at least as likely as not 
that the veteran's current bilateral hearing loss was 
aggravated by noise exposure during active duty."

In a February 2009 statement, the Veteran wrote that, during 
his period of active service that began in 1977, he was in 
an artillery unit, and was exposed to loud weapons noise for 
prolonged periods.  He stated that during his work with the 
National Guard after his first period of service, he was 
exposed to loud noises, including the engines of tanks on 
which he worked.  He indicated that he was exposed to engine 
and weapons noise during his two week periods of National 
Guard active duty for training.  He reported that he had 
additional noise exposure, from engines and weapons fire, 
during his periods of active service in the two Gulf Wars.  
He acknowledged that he had lost hearing in his right ear 
while he was on disability from work; but asserted that his 
military service had caused the loss of hearing in his right 
ear and the diminishment of hearing in his left ear.

After a full review of the record and resolving all 
reasonable doubt in favor of the Veteran, the Board 
concludes that service connection for bilateral hearing loss 
is warranted.  

The Veteran has credibly reported noise exposure during his 
three periods of active service, and also during his periods 
of employment as a mechanic with the National Guard.  
The progression of impairment in his hearing into 
disability, for VA purposes, occurred at different times in 
each ear.  Noise exposure bilaterally is conceded based not 
only on the Veteran's credible statements but also on the 
RO's concession of such noise exposure from events in 
service in the grants of service connection for both 
tinnitus and PTSD.  In the left ear, testing during the 
Veteran's first period of active service did not show 
disabling impairment.  During his second period of active 
service, in 1990 and 1991, the threshold at 4000 Hertz 
increased from 15 to 25 decibels.  This is evidence of some 
hearing loss in the left ear during service even if it did 
not rise to the level of hearing loss for VA disability 
purposes at that time.  The Veteran has left ear hearing 
disability as of April 1996, when the threshold at 4000 
Hertz was 50.  While the VA examiner did not conclude that 
hearing loss was related to service, the Board finds that 
there is sufficient evidence of onset of hearing loss in the 
left ear in service to support the grant of service 
connection.  

Test results showed no disabling hearing impairment in the 
Veteran's right ear during his first or second periods of 
active service.  His right ear hearing was within normal 
limits in the latest testing, in February 2000, before his 
third period of active service.  He had hearing loss 
disability, with a threshold of 50 decibels at 4000 Hertz, 
on the earliest testing, in January 2007, after his third 
period of service.  The absence of evidence of testing 
during the third period of service precludes a precise 
determination as to when the hearing disability arose.  
However, as indicated above the noise exposure during his 
periods of service, including the service in Iraq, to loud 
noises, such as an IED explosion, has been conceded.  While 
the VA examiner noted that Veteran's reported of a sudden 
right ear hearing loss in February 2008, the evidence 
supports the finding that the his initial right ear hearing 
loss was incurred during that period of service.  Therefore 
service connection for the right ear hearing loss was 
warranted and service connection for bilateral hearing loss 
is granted.  

ORDER

Entitlement to service connection for bilateral hearing loss 
is granted.


REMAND

The Veteran contends that he has had chronic fatigue since 
his Persian Gulf War service in Kuwait in 1990 and 1991.  He 
indicates that a physician he saw in 1992 and 1993 began a 
work up to determine if he had chronic fatigue syndrome.  
The claims file does not contain any records of that 
treatment.  The Veteran's 1997 compensation claim included a 
claim of fatigue.  Recent medical records also contain 
complaints of fatigue.  The Veteran has not had a diagnosis 
of chronic fatigue syndrome.  On VA examination in September 
2008, the examiner stated that, because the Veteran has 
multiple overlapping symptoms from depression, PTSD, 
vascular dementia, and a possible sleep disorder, it would 
be speculative to find that the Veteran has chronic fatigue 
syndrome.

In addition to consideration for direct service connection, 
the Veteran's chronic fatigue syndrome claim should be 
considered under 38 C.F.R. § 3.317 (2009).  That regulation 
provides for compensation for Persian Gulf War veterans who 
develop certain chronic disabilities, including chronic 
fatigue syndrome.  The Board will remand the issue to seek 
the 1992 and 1993 medical records, and to arrange a new file 
review and medical examination with medical opinion, in 
order to clarify whether the Veteran has chronic fatigue 
syndrome.

Accordingly, this case is REMANDED for the following action:

1.  Ask the Veteran to identify the 
physician who began in 1992 and 1993 a 
work up for chronic fatigue syndrome.  
Request records of treatment of the 
Veteran from the physician that the 
Veteran identifies.

2.  Schedule the Veteran for a VA 
medical examination to clarify whether 
the Veteran has chronic fatigue 
syndrome, and, if so, to address the 
likely etiology of that disorder.  The 
examiner must be provided with the 
Veteran's claims file for review.  The 
record contains the Veteran's 
complaints, dated from 1997 forward, of 
fatigue.  After examining the Veteran 
and reviewing the claims file, the 
examiner should express an opinion as to 
whether the Veteran has chronic fatigue 
syndrome or any other disease or 
disorder that causes his complained of 
symptoms and, if so, whether it is at 
least as likely as not that the 
Veteran's chronic fatigue syndrome, or 
other disease or disorder, is related to 
service.  The examiner should explain 
the conclusion reached.

3.  After completion of the above, 
review the expanded record and determine 
if the Veteran's remanded claim for 
service connection for chronic fatigue 
syndrome can be granted, either via 
direct service connection or as related 
to Persian Gulf War service, in 
accordance with 38 C.F.R. § 3.317.  If 
that claim remains denied, issue a 
supplemental statement of the case and 
afford the Veteran an opportunity to 
respond.  Thereafter, return the case to 
the Board for appellate review.

The Board intimates no opinion as to the ultimate outcome of 
this case.  The Veteran has the right to submit additional 
evidence and argument on the matter that 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. 2009).



____________________________________________
K. J. ALIBRANDO
Acting Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs