Citation Nr: 1301338 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 09-44 691 ) 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. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from May 1988 to September 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which denied several of the Veteran's service connection claims to include entitlement to service connection for hearing loss, tinnitus, and right and left shoulder pain. The Veteran perfected an appeal as to the hearing loss, tinnitus and shoulder claims; however, during the course of the appeal, service connection was granted for both right and left shoulder disabilities. Thus, the claims remaining on appeal are limited to service connection for hearing loss and tinnitus. The Veteran testified at a Travel Board hearing held in April 2012, before Kathleen K. Gallagher, a Veterans Law Judge who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c) (West 2002) and who will render the determination in this case. 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. REMAND While the Board regrets any additional delay, a remand is necessary in order to afford the Veteran a current VA examination and obtain an adequate medical opinion. The Veteran contends that he has bilateral hearing loss, as well as tinnitus, due to in-service noise exposure. In particular, he reported at his hearing that he was a diesel mechanic track recovery specialist in service, during which time he was exposed to noise from engines, generators, and hydraulic apparatuses daily. His DD Form 214 indeed confirms that during service his primary specialty was self propelled field artillery system mechanic. The record also contains an April 1991 in-service reference audiogram. This document also confirms that the Veteran was routinely exposed to hazardous noise during service. As such, military noise exposure is conceded in this case. The question is whether the Veteran has current right and left ear hearing loss and current tinnitus disabilities that are causally connected to the in-service noise exposure. For claims of service connection for hearing loss or impairment, VA has specifically defined what is meant by a "disability" for the purpose of service connection. 38 C.F.R. § 3.385. "[I]mpaired 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. The purpose of section 3.385 is to establish guidelines for determining when a hearing "disability" is present so that service connected compensation may be awarded. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Section 3.385 does not preclude service connection for a current hearing loss disability where the requirements of 3.385 were not met on audiometric testing at separation from service. Hensley, 5 Vet. App. at 157. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley, 5 Vet. App. at 157. At the time of entry into service, a May 1988 audiogram showed pure tone thresholds of the left ear at 500, 1000, 2000, 3000 and 4000 Hertz as 35, 10, 10, 15, and 20 decibels, respectively. Pure tone thresholds of the right ear at 500, 1000, 2000, 3000 and 4000 Hertz were 20, 5, 10, 20, and 5 decibels, respectively. Thus, while not rising to the level of a preexisting hearing loss "disability," as defined by VA regulation, the Veteran did exhibit some degree of left sided hearing loss at the time of entry into service. He, however, entered service with clinically normal right sided hearing. There were no additional audiograms during service, other than one in April 1991, four months prior to his separation from service. These results show pure tone thresholds of the left ear at 500, 1000, 2000, 3000 and 4000 Hertz as 30, 10, 10, 20, and 20 decibels, respectively. Pure tone thresholds of the right ear at 500, 1000, 2000, 3000 and 4000 Hertz at that time were 10, 0, 10, 25, and 10 decibels, respectively. Thus, there was a shift, albeit slight, in the pure tone threshold readings for both the right and left ear during service. Moreover, at the time of separation, he again was without a hearing loss disability as defined by VA regulation, but he did have indication of some degree of hearing loss in both ears. Considering the confirmed in-service hazardous noise exposure, this raises the question of whether the puretone threshold shift in both ears during service may have been due to the noise exposure and, if so, whether this is indicative of the initial manifestation of any current right and/or left ear hearing loss. Following service, the earliest indication in the medical evidence of the presence of hearing loss or tinnitus is found in October 1999 private treatment notes. The handwritten notes show that the Veteran reported hearing in his left ear to be "muffled" and also reported having tinnitus. This is eight years following the Veteran's separation from service. The same physician's notes show that in July 2002 the Veteran reported that he had ringing in his left ear and could not hear out of it. This is consistent with the Veteran's report at the time of his Travel Board hearing that he recalled hearing loss towards the end of his period of service, but that later his left ear hearing "quit" and that the only thing he can hear in that ear is ringing. Another private report in October 2002 shows that the Veteran developed progressive hearing loss in his left ear in April and May 2002, and that by the time of the report, his left ear hearing was "essentially gone." Private audiogram at that time revealed pure tone thresholds of the left ear at 500, 1000, 2000, 3000 and 4000 Hertz as 75, 75, 65, 80, and 100 decibels, respectively. Pure tone thresholds of the right ear at 500, 1000, 2000, 3000 and 4000 Hertz at that time were 10, 10, 10, 25, and 20 decibels, respectively. By April 2003, private audiogram showed pure tone thresholds of the left ear at 500, 1000, 2000, 3000 and 4000 Hertz as 80, 80, 80, 85, and 90 decibels, respectively. Pure tone thresholds of the right ear at 500, 1000, 2000, 3000 and 4000 Hertz at that time were 20, 15, 30, 35, and 30 decibels, respectively, which is indicative of a right ear hearing loss disability according to 38 C.F.R. § 3.385. Thus, the first post-service notation of tinnitus was in 1999, and the first post-service confirmation of puretone threshold levels rising to the level of a hearing loss disability was in October 2002 for the left ear and in April 2003 for the right ear. The Veteran filed his service connection claim in August 2007. In January 2008, VA examination again revealed a hearing loss disability in the left ear, which was characterized as profound sensorineural hearing loss, but the measured pure tone thresholds of the right ear did not meet the criteria for hearing loss disability. In particular at 500, 1000, 2000, 3000 and 4000 Hertz, the Veteran's right ear pure tone thresholds were 15, 10, 20, 30, and 30 decibels, respectively. However, a VA audiology consultation report dated in August 2009 shows pure tone thresholds of the right ear at 500, 1000, 2000, 3000 and 4000 Hertz as 20, 20, 30, 40, and 35 decibels, respectively, which does meet the criteria for a right ear hearing loss disability. Thus, during the course of this claim and appeal, medical evidence has established that the Veteran has right and left ear hearing loss disabilities. The VA examination report also confirms the ongoing existence of tinnitus in the left ear. Yet, the question remains whether the Veteran's current disabilities are causally connected to his noise exposure in service, to include whether the slight shift in pure tone thresholds during service is any indication of a causal connection. Unfortunately, the medical evidence currently in the record does not adequately answer these questions. As to the question of medical nexus, in November 2007, the Veteran's private physician, Dr. S.C.O., whose letterhead indicates that he is a family practitioner with a Certificate in Sports Medicine, submitted a statement. The doctor indicated that the Veteran was a Howitzer Mechanic in service with documented hearing loss in his military chart. He then stated that this has progressed to loss in the right ear and high frequency loss in the left ear. There was no further elaboration provided by this physician. In January 2008, the VA examiner did not render a nexus opinion related to the right ear, as no hearing loss disability was shown at the time of that examination. As to the opinion related to the left ear, the examiner's statements are internally inconsistent. In particular, the examiner reported that upon entry into service, the Veteran had "a mild hearing loss at 500Hz," which was indicated by the pure tone threshold of 35 at that level. The examiner then reported that the Veteran's left ear hearing loss was again shown at 500 Hz in April 1991, and noted at this was "normal" for VA purposes. The Board notes that the 35 at entry was also "normal" for VA purposes as defined by section 3.385, and so it is unclear why the examiner deemed one hearing loss and one not and then determined that the Veteran had left ear hearing loss that existed prior to service and was not aggravated by military service. The 2008 VA examiner also failed to discuss that the puretone thresholds at entry at 500 Hz were 35, and decreased to 30 by April 1991, yet the puretone thresholds at entry at 3000 Hz were 15 and increased to 20 by April 1991. The significance of a decrease at 500 Hz, but an increase at 3000 Hz is not explained. There is, in fact, no discussion of the slight threshold shift during service, other than a notation by the examiner that "a significant threshold shift was not noted." The relevance of this fact was not discussed whatsoever. Finally, as to the Veteran's tinnitus, the examiner diagnosed constant unilateral tinnitus in the left ear and noted that there were no complaints of tinnitus shown in the service treatment records, then concluding that tinnitus was less likely as not caused by or a result of military noise exposure. The rationale for this opinion is not included in the examiner's report, to include an explanation as to why a diagnosis of tinnitus in 1999, eight years after service, could not be related to the confirmed in-service noise exposure. Each of these factors should have been thoroughly discussed in the VA medical opinion related to determining the likelihood that hearing loss and tinnitus were caused by noise exposure or acoustic trauma in service as opposed to some other cause. In addition, because the Veteran's right ear hearing loss disability has since been confirmed to currently exist, there must be an adequate opinion related to bilateral hearing loss, rather than only left ear hearing loss. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Based on the foregoing, the Board finds that a clarifying medical opinion is necessary to determine the cause of the Veteran's bilateral hearing loss and tinnitus disabilities. Furthermore, since right ear hearing loss was not demonstrated at the time of the 2008 VA examination but is shown in later clinical records, the Board finds that a new examination, rather than a mere addendum opinion, is necessary in this case. The Board also recognizes that additional evidence has been added to the claims file since the January 2008 examination, which should be considered by the examiner. In private records received by VA in February 2008, there is an indication that the Veteran sought treatment in April 2003 after falling from an all terrain vehicle and hitting the right side of his head, after which he experienced right sided hearing loss. In May 2008 VA outpatient records, ringing in the "ears" is reported, which is an indication that the Veteran's tinnitus has not always been limited to his left ear; however, at his April 2012 hearing, he again reported that it was only in his left ear. Finally, in April 2012, the Veteran submitted into the record a private audiology report, which includes a handwritten note that there is a "high probability of hearing issues due to hazardous noise conditions in military." This examiner did not provide a rationale for this opinion, indicate any review of records, or specify which "hearing issues" were being referred to, and therefore the Board does not accept this alone as adequate evidence to establish the causal connection needed to grant the Veteran's claims. However, this record, as well as the others, should be considered by the VA examiner. Finally, the Board recognizes that the most recent VA outpatient treatment records associated with the Veteran's claims file are dated in September 2011, and the most recent audiological record is dated in March 2010. These records are from the Colorado Springs Community Based Outpatient Clinic (CBOC). During the course of this appeal, he has also received treatment from the Denver VA Medical Center (VAMC), and at his April 2012 hearing, he reported receiving VA treatment at the "Spruce Clinic." On remand, all relevant ongoing VA medical records also should be obtained and associated with the record. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain current VA treatment records related to the Veteran's hearing loss and tinnitus dating since March 2010 from the Colorado Springs CBOC, Denver VAMC, Spruce Clinic, or any other VA treatment facility in which the Veteran received treatment for his bilateral hearing loss and/or tinnitus. Associate all records obtained with the Veteran's claims file. 2. The RO/AMC should forward the Veteran's claims file to a qualified VA audiologist for a new VA audiological examination and opinion. An examination is necessary to assess the current nature of any right and left ear hearing loss, as well as right and left ear tinnitus. Left ear hearing loss and tinnitus, according to the record, has existed throughout the course of this claim and appeal. If a current examination reveals otherwise, the examination report should include an explanation as to when any left sided tinnitus or hearing loss resolved. As to the right ear, the VA examiner should conduct appropriate examination and testing and assess whether a current right ear hearing loss disability and/or right ear tinnitus exists. If either or both do not currently exist, the examiner should discuss whether a right hearing loss disability and right ear tinnitus has existed at any time since the Veteran's August 2007 claim for service connection. Once the current nature of the Veteran's hearing loss and tinnitus disabilities is confirmed, for any hearing loss and tinnitus disability that has existed at any time during the course of this claim and appeal, the examiner should thoroughly address the cause, including whether it is likely, unlikely, or at least as likely as not, that the right and/or left ear hearing loss and tinnitus was caused by the conceded in-service noise exposure. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) The examination report should include responses to the following inquiries: * What is the significance of the slight shift in the Veteran's puretone threshold readings during his service, and can such a shift be indicative of an in-service incurrence of sensorineural hearing loss due to noise exposure? If not, why not? * What is the significance of the slight shift downward of puretone threshold readings at 500Hz, but the slight shift upward at 3000Hz, when comparing the 1988 entrance examination report and the 1991 reference audiogram shortly prior to the Veteran's discharge from service? * How does hearing loss resulting from noise exposure or acoustic trauma generally present or develop in most cases, and how can that be distinguished from hearing loss that develops from other causes? The examiner should also discuss the November 2007 and April 2012 private physcians' notes indicating a possible relationship between the Veteran's hearing loss and his in-service noise exposure. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1 (2012), copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, including a copy of this REMAND, must be made available to the examiner for review. 3. After the above development has been completed, the RO/AMC should readjudicate the issues of entitlement to service connection for bilateral hearing loss and tinnitus. If any benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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 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. 2012). _________________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2012).