Citation Nr: 1121008 Decision Date: 05/31/11 Archive Date: 06/06/11 DOCKET NO. 10-11 274 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran had active military service from December 1966 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The December 2008 decision denied entitlement to service connection for hearing loss, tinnitus, and posttraumatic stress disorder (PTSD). The Veteran disagreed with the three denials. After a statement of the case (SOC) was provided to the Veteran in January 2010, he responded by filing a VA Form 9 (Appeal to the Board of Veterans' Appeals). See 38 C.F.R. §§ 20.202, 20.302 (2010). He indicated that he had read the SOC and that he was only appealing the hearing loss and tinnitus issues. There was no indication that he was continuing his appeal of the PTSD claim and the issue was not certified by the RO to the Board. In statements dated in April 2010 and December 2010, the Veteran's representative again raised the issue of entitlement to service connection for PTSD after the time period to appeal had expired. Because this issue has not been developed for appellate review, it is referred to the agency of original jurisdiction for appropriate action. REMAND Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010). In addition, certain chronic diseases, such as sensorineural hearing loss, may be presumed to have been incurred during service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.307, 3.309 (2010). Satisfactory lay or other evidence that an injury or disease was incurred in combat will be accepted as sufficient proof of service incurrence if the evidence is consistent with the circumstances, conditions, or hardships of such service even though there is no official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d). For 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, or 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 (2010). The Veteran asserts that he developed hearing loss and tinnitus as a result of military service. Specifically, he states that the disabilities had their onset in 1968 due to combat noise exposure during service in Vietnam. He maintains that any current hearing loss and tinnitus is related to the in-service noise exposure. Thus, the Veteran contends that service connection is warranted. The Veteran's service personnel and treatment records are negative for a reference to hearing loss or tinnitus. There is no express documentation of exposure to loud noise. Nevertheless, his personnel records document that he served in the Republic of Vietnam from May 1967 to May 1968. The Veteran's military occupational specialty was an Armor Intelligence Specialist. He was awarded a Purple Heart and received the Combat Infantry Badge. This information is indicative of participating in combat with the enemy. Because exposure to loud noise is consistent with the circumstances, conditions, and hardships of service in Vietnam as an Armor Intelligence Specialist, the Board accepts the Veteran's lay statements as sufficient evidence that he was exposed to loud noise during service. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The Veteran's September 1966 service entrance examination and his November 1968 separation examination showed hearing within normal limits for VA purposes. Notably, the hearing tests appeared to use ASA-1951 (American Standards Associates) units rather than the more recent ANSI-1969 (American National Standards Institute) units. Although the Veteran's hearing was normal in both instances, there was an uptick in auditory thresholds for several of the frequencies at his separation examination. Post-service medical records reflect a current diagnosis of bilateral sensorineural hearing loss and tinnitus. The earliest medical evidence of hearing loss is a December 2007 private audiogram from Lakeshore Ear, Nose, and Throat Center. The Veteran was diagnosed with bilateral sensorineural hearing loss. In a January 2008 letter, Dr. R.E.B. from Lakeshore addressed the Veteran's hearing loss. According to the letter, Dr. R.E.B. is a specialist in otology/neuro-otology. Dr. R.E.B. noted that the Veteran had a history of exposure to combat noise during service in Vietnam. Specifically, the Veteran reported exposure to 50 caliber machine guns, mortars, M-60 machine guns, mines, and grenades. After reviewing the audiogram and diagnosing the Veteran with bilateral sensorineural hearing loss, Dr. R.E.B. gave the opinion that the Veteran's hearing loss is most likely related to the combat noise exposure during the Vietnam War. The private medical records do not reference tinnitus. In September 2008, the Veteran underwent VA audiological examination. Audiometric testing shows that the Veteran has hearing impairment for VA purposes. See 38 C.F.R. § 3.385. He was diagnosed with bilateral sensorineural hearing loss and it was noted that the Veteran had constant bilateral tinnitus. It was noted that the Veteran was an armored personnel carrier driver and gunner during military service with combat. The VA audiologist did not provide an opinion at that time as the Veteran's claims file was not available for review. In December 2008, the VA audiologist was able to review the claims file. The audiologist noted that the Veteran's hearing was within normal limits on both entrance and discharge from service. It was also noted that there was no significant threshold shift. Therefore, the VA audiologist gave the opinion that it is not likely that the Veteran's current hearing loss and tinnitus are related to military service. The medical opinion evidence, particularly as it pertains to the origin of the Veteran's hearing loss, is somewhat ambiguous. Unlike the VA audiologist, Dr. R.E.B.'s opinion detailed the type of in-service noise exposure. Additionally, Dr. R.E.B. appears to have greater expertise as a physician with an apparent specialty in otology/neuro-otology. However, there is no indication that Dr. R.E.B. was able to review the Veteran's service records. Moreover, Dr. R.E.B. did not set forth any compelling rationale for the opinion or make reference to tinnitus. Although the VA audiologist was able to review the service records, the vague rationale is not persuasive in light of the competing opinion from Dr. R.E.B. The audiologist did not take a detailed history of the Veteran's in-service noise exposure. Additionally, the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The audiologist appeared to rely on "no significant threshold shift" during service as the basis for the opinion. However, there was no further comment on what would constitute a significant threshold shift, the possibility of a delayed onset of hearing loss as contemplated by Hensley, or to what cause the Veteran's hearing loss is attributable if not in-service noise exposure. Moreover, there was no explanation in what manner normal hearing at separation and "no significant threshold shift" has on the question of etiology regarding tinnitus. In view of the equivocal state of the evidence as it pertains to the etiology of the Veteran's hearing loss and tinnitus, the Board finds that the claims should be remanded to schedule the Veteran for another VA audiological examination. In addition to the examination, a medical opinion as to whether the Veteran has hearing loss and tinnitus as a result of in-service exposure to loud noise should be obtained. A nexus opinion that is followed by a detailed explanation of the opinion in the context of the record and sound medical judgment will be most useful in deciding the claims. Accordingly, this case is REMANDED for the following actions: 1. Schedule the Veteran for a VA audiological examination to determine the extent and onset of any hearing loss and tinnitus. (Advise the Veteran that failure to appear for an examination as requested, and without good cause, could adversely affect his appeal. See 38 C.F.R. § 3.655 (2010).) The entire claims file, to include a complete copy of this remand, should be made available to, and reviewed by, the designated examiner. A detailed history of the Veteran's in-service and post-service noise exposure should be taken. All necessary tests and studies should be conducted. The examiner should specifically indicate whether the Veteran currently has hearing loss to an extent recognized as a disability for VA purposes (i.e., an auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz of 40 decibels or greater; or an auditory threshold for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz of 26 decibels or greater; or a speech recognition score using the Maryland CNC Test of less than 94 percent). With respect to any diagnosed hearing loss and tinnitus, the examiner should provide an opinion, consistent with sound medical judgment, as to the medical probabilities that any hearing loss or tinnitus is related to the Veteran's active military service, particularly the in-service exposure to loud noise during combat. The examiner should also address the possibility of post-service onset. All examination results, along with the complete rationale for the opinions provided, to include citation to pertinent evidence of record and/or medical authority, as appropriate, should be set forth. 2. After undertaking any other development deemed appropriate, re-adjudicate the issues on appeal. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified by VA. The Veteran 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2010). _________________________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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) (2010).