Citation Nr: 1303261	
Decision Date: 01/31/13    Archive Date: 02/05/13

DOCKET NO.  10-31 348	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Entitlement to service connection for a bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and C. W.


ATTORNEY FOR THE BOARD

C. Fetty
INTRODUCTION

The Veteran served active military service from June 1961 to May 1964.  This appeal arises to the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.

The claim of entitlement to service connection for tinnitus is remanded to the RO via the Appeals Management Center in Washington, DC.


FINDING OF FACT

The Veteran's current bilateral hearing loss cannot be reasonably disassociated from his military service.

CONCLUSION OF LAW

Bilateral hearing loss was incurred in active duty service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue involving the Veteran's claim to of entitlement to service connection for bilateral hearing loss.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012).  This is so because the Board is taking action favorable to the Veteran by granting this claim.  As such, this decision poses no risk of prejudice to the Veteran.  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49, 747 (1992). 

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  In addition, service connection may be granted for any 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).  

The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate a degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)).  For service connection claims for hearing loss or impairment, VA has specifically defined what is meant by a "disability" for the purposes of service connection.  38 C.F.R. § 3.385.  Impaired hearing will be considered 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.  Id.  

The Veteran's service treatment records indicate that on entry into active duty service, audiometry equipment was not used to test the Veteran's hearing acuity.  Rather, a whispered voice test was provided.  His separation examination in March 1964 included an audiological evaluation.  This evaluation demonstrated that his puretone thresholds, in decibels, were as follows.  




HERTZ



500
1000
2000
3000
4000
RIGHT
5 (20)
0 (10)
5 (15)
/
0 (5)
LEFT
5 (20)
10 (20)
5 (15)
/
5 (10)

(NOTE: Prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA).  Those are the figures on the left and are not in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)- American National Standards Institute (ANSI).  In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses.)

In July 2010, a private audiologist provided diagnoses of binaural hearing loss and tinnitus.  The Veteran reported that both hearing loss and tinnitus began during his active duty service.  He related several sources of loud noise or acoustic trauma to which he was exposed during his military service.  He reported that he had no post-service acoustic trauma.  Based on this information, the private audiologist concluded that it was "at least as likely as not" that the Veteran's current hearing loss and tinnitus were related to active military service.  The rationale for this opinion was that the type of hearing loss found was produced by loud noise exposure, which the Veteran experienced during active service, and no intermediate causation was shown.  

In April 2011, a VA audiological examination found puretone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
45
50
65
70
65
LEFT
40
45
60
60
65

Speech audiometry revealed speech recognition ability of 76 percent in the right ear and 76 percent in the left ear.  The diagnoses were mild to severe sensorineural hearing loss in the right ear and mild to moderately severe sensorineural hearing loss in the left ear.  The VA audiologist concluded that it was "less likely as not" that the current bilateral hearing loss was related to active military service.  The rationale provided by the examiner was that on service separation testing there was normal hearing, and although a whispered test was given at entry into service, there was no significant upward shift in hearing thresholds during active service.  The audiologist reported that there could be no significant upward shift because all the puretone thresholds on the service separation examination were "zero, 5, or one is 10 [decibels]."  However, the April 2011 audiologist failed to convert the ASA standards to ISO-ANSI standards when making this determination.  The conclusion that no upward shift occurred during active service is based on an inaccurate factual premise.  Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (finding that a medical opinion based upon an inaccurate factual premise has no probative value).  Moreover, the fact that the Veteran had normal hearing on service connection is not fatal to his claim.  38 C.F.R. § 3.303(d); Hensley, 5 Vet. App. 155 at 157.  

The evidence of record shows that a current diagnosis of a bilateral hearing disability for VA purposes.  38 C.F.R. § 3.385.  His statements and testimony concerning such noise exposure are competent and credible, as they are consistent with his service record.  Jandreau v. Nicholson, 492 F.3d 1327, 1327 (Fed. Cir. 2007); Caluza v. Brown, 7 Vet. App. 498, 506 (1995).  The probative medical evidence of record links the Veteran's current bilateral hearing loss disability to the Veteran's noise exposure in service.  Accordingly, service connection for bilateral hearing loss is granted. 

ORDER

Service connection for a bilateral hearing loss is granted.


REMAND

In November 2009, the Veteran submitted a notice of disagreement with the November 2009 rating decision that denied service connection for hearing loss and tinnitus.  In this statement, he stated that , "[t]his condition started with the noise I was exposed to while on active duty."  Attached with his notice of disagreement, was a private medical report that noted occasional tinnitus.  In the Veteran's substantive appeal to the Board, he noted that he would send a report from his private audiologist concerning his hearing loss and tinnitus.  However, a statement of the case has not been issued addressing service connection for tinnitus.  While it is true that the Veteran has not submitted a timely substantive appeal, the Board is obligated to remand this issue to the RO for the issuance of a statement of the case and notification of appellate rights.  Manlincon v. West, 12 Vet. App. 238 (1999).   

Accordingly, this issue is remanded for the following action:

Issuance of a statement of the case and notification of the Veteran's appellate rights on the issue of entitlement to service connection for tinnitus, is necessary.  38 C.F.R. § 19.26 (2012).  The Veteran and his representative are reminded that to vest the Board with jurisdiction over this issue, a timely substantive appeal to the November 2009 rating decision denying this claim must be filed.  38 C.F.R. § 20.202 (2012).  If the Veteran perfects the appeal as to this issue, the case must be returned to the Board for appellate review.  

No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO.  Kutscherousky v. West, 12 Vet. App. 369 (1999).



______________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs