Citation Nr: 1303496 Decision Date: 02/01/13 Archive Date: 02/08/13 DOCKET NO. 10-34 016 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to July 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Des Moines, Iowa, Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2011, the Veteran was afforded a hearing before the undersigned. A transcript of the proceeding is of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran asserts that he is entitled to service connection for hearing loss, and tinnitus. He asserts that he has the claimed conditions due to exposure to loud noise during service, primarily during service in Vietnam, during which time he was exposed to noise from helicopters, artillery, and mortars, without use of hearing protection. In April 2008, the Veteran filed his claims for service connection for tinnitus and hearing loss. In October 2008, the RO denied the claims. The Veteran has appealed. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection may also be granted for an organic disease of the nervous system, such as a sensorineural hearing loss, when manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. It is appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and, therefore, a presumptive disability. See Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995. Applicable regulations provide that impaired hearing shall be considered a disability when the auditory thresholds in any of the frequencies of 500, 1,000, 2,000, 3,000, and 4,000 Hz are 40 decibels or greater; the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores are 94 percent or less. 38 C.F.R. § 3.385 (2012). Service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standard Organization (ISO) units. VA used ASA units prior to July 1966. However, in July 1966, VA adopted International Organization for Standardization (ISO) units, and the military followed suit in November 1967. The current definition for a hearing loss disability found at 38 C.F.R. § 3.385 is based on ISO units. The military audiogram in the instant case conducted in August 1966 must be converted from ASA to ISO units. Essentially, this means adding 10 decibels to the reported findings in most frequencies, the exceptions being adding 15 decibels at 250 and 500 Hertz and 5 decibels at 4000 Hertz. The Veteran's service treatment reports include an entrance examination report, dated in March 1966, which shows that the Veteran's ears and drums were clinically evaluated as normal. The report contains audiometric findings that revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT N/A 5 0 0 0 LEFT N/A 0 0 0 5 The Board further notes that at 6,000 Hz, the right ear had a decibel loss of 45, and the left ear had a decibel loss of 5. In an associated "report of medical history," the Veteran indicated that he had a history of hearing loss. There is also a notation of "hearing loss - 6-7 months ago sec[ondary] to [illegible]." The Veteran's separation examination report, dated in July 1968, shows that the Veteran's ears and drums were clinically evaluated as normal. The report contains audiometric findings that revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT N/A 15 10 BLANK 15 LEFT N/A 15 15 BLANK 20 In an associated "report of medical history," the Veteran indicated that he did not have a history of hearing loss. A VA opinion, dated in May 2010, shows that it is written by an audiologist, who stated that the Veteran's claims file had been reviewed. The audiologist compared the Veteran's audiometry results from the time of induction with those upon separation from service, and stated the following: at 500 Hz there was slight improvement on the right, and no change on the left; at 1,000 Hz there was no change on the right, and only a change of 5 on the left; at 2,000 Hz there was no change on the right, and only a change of 5 on the left; at 3,000 Hz hearing was normal at the time of entrance, and this frequency was not tested at separation; at 4,000 Hz there was a change of 10 on the right, and 5 on the left; at 6,000 Hz there was hearing loss at the time of entrance on the right, hearing was normal on the left, and this frequency was not tested upon separation. The audiologist concluded that there was no significant change ("20 or more decibels") between entrance and separation exams at any tested frequency. The audiologist noted that the Veteran had hearing loss at the right ear at 6,000 Hz upon entrance into service, without evidence of worsening during service. He stated that although testing at both 3,000 Hz and 6,000 Hz was not performed upon separation, the other frequencies that were tested did not have any significant threshold shifts, and that results showed no change whatsoever, or only changes of 5 or 10 decibels. The audiologist concluded that it was therefore more likely than not that there was no significant threshold shift at either 3,000 Hz or 6,000 Hz. He further concluded that the Veteran's current SNHL (sensorineural hearing loss) is not related to noise exposure during active military service since there was no significant threshold shift at any frequency between the entrance and separation pure tone audiometry. He stated that there was right ear hearing loss upon entrance into service and that there is no evidence that this was aggravated during service. Finally, the audiologist concluded that the Veteran's tinnitus is less likely than not related to noise exposure during active military service, and that it is more likely than not secondary to the SNHL which is the most common etiology for tinnitus. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Court has stated that a Veteran need not satisfy the threshold minimum requirements of 38 C.F.R. § 3.385 while in service, including at time of discharge, and that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. See Hensley v. Brown, 5 Vet. App. 155 (1993); see also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The Board finds that a remand is warranted. The May 2010 VA audiologist's opinion states that the Veteran had right ear hearing loss prior to service, based on his hearing loss threshold at 6,000 Hz. However, right ear hearing loss, as defined for VA purposes, is not shown, see 38 C.F.R. § 3.385, and it is unclear why the audiologist included a discussion of hearing thresholds at 500 Hz and 6,000 Hz, as the applicable regulation does not utilize hearing thresholds at these frequencies in determining the existence of hearing loss. Id. In addition, given the Court's holdings in Hensley and Ledford, it appears that the rationale for the opinion in the May 2010 VA opinion is inadequate. In short, the failure to find a hearing loss disability in service is not fatal to a claim if there is otherwise evidence linking a current hearing loss disability to service. Finally, the issue of service connection for tinnitus appears to be potentially intertwined with the issue of service connection for hearing loss, such that a decision on this issue must be deferred. See Harris v. Derwinski, 1 Vet. App. 180 (1991). On remand, a supplemental opinion should be obtained, or, in the alternative, the Veteran should be afforded another examination for hearing loss and tinnitus, to include obtaining etiological opinions. The appellant is hereby notified that it is the appellant's responsibility to report for any examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158 and 3.655 (2012). Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify all sources of treatment relevant to his claims for hearing loss and tinnitus after 2010 (i.e., after the most current medical evidence currently of record). After obtaining all necessary authorizations, the RO/AMC should attempt to obtain all identified records and associate them with the Veteran's claims file. 2. After the development requested in the first paragraph of this remand has been completed, return the Veteran's claims file for review by the audiologist who authored the Veteran's May 2010 VA opinion, or, if he is unavailable, schedule the Veteran for a new VA examination. a) The audiologist should state whether it is at least as likely as not (i.e., a likelihood of 50 percent or greater) that any hearing loss, or tinnitus, found was caused by the Veteran's service, to include a discussion of whether any tinnitus has been caused or aggravated by hearing loss. In discussing his or her conclusions, the examiner should discuss the relevance, if any, of the Veteran's assertion that he did not use hearing protection while in service. b) If the audiologist cannot express any part of the requested opinions, the audiologist should explain the reasons therefor. c) The term "at least as likely as not" does not mean within the realm of medical possibility, but rather 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 that conclusion as it is to find against it. d) "Aggravation" means a chronic or permanent worsening of the underlying condition (versus a temporary flare-up of symptoms) beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent that is possible, the approximate level of disability before the onset of the aggravation. 3. Readjudicate the issues on appeal. If either of the determinations remains unfavorable to the appellant, he should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim for benefits, to include a summary of the evidence, and applicable law and regulations considered. The appellant and his representative should be given an opportunity to respond to the SSOC. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ MATTHEW D. TENNER Acting 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).