Citation Nr: 1303564 Decision Date: 02/01/13 Archive Date: 02/08/13 DOCKET NO. 12-34 549 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to an initial compensable rating for left ear hearing loss. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1954 to November 1958. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). That decision denied the claims for service connection for right ear hearing loss and tinnitus, but granted service connection for left ear hearing loss and assigned an initial noncompensable (0 percent) disability rating effective October 18, 2010. A notice of disagreement was received in February 2012, a statement of the case was issued in November 2012, and a substantive appeal was received in November 2012. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). In this decision the Board is granting the claim for service connection for right ear hearing loss, so the Veteran's service-connected hearing loss disability will in turn become bilateral, as opposed to just unilateral. As such, since bilateral hearing loss is rated differently than unilateral hearing loss, the Board is remanding this case partly to have the Veteran reexamined to rate his now bilateral hearing loss. Also the issue of service connection for tinnitus is being remanded. These claims are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT It is at least as likely as not the hearing loss in the Veteran's right ear, like that in his left ear, is the result of noise exposure during his military service. CONCLUSION OF LAW The Veteran's right ear hearing loss was incurred in active duty service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 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(a)(2012). 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 for entitlement to service connection for right ear 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 because the Board is taking action favorable to the Veteran by granting the issue at hand. 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). II. Entitlement to Service Connection for Right Ear Hearing Loss The Veteran contends his right ear hearing loss, just as his left ear hearing loss, is the result of his active duty service. Specifically, the Veteran asserts that his military occupational specialty (MOS) as a data processing machine operator required him to work around loud computers/machines, without hearing protection. Further, the Veteran stated he worked in a building located directly on the flight line where he was exposed to the loud noise of jet engine aircraft. The Board notes that it has reviewed all of the evidence in the Veteran's claims file, as well as in "Virtual VA" (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. Service connection may be granted for disability due to a disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran must show: evidence of a present disability; evidence of an in-service incurrence or aggravation of a disease or injury; and evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases (such as organic diseases of the nervous system, including sensorineural hearing loss) will be presumed to have been incurred in service if manifested to a compensable degree of at least 10 percent disabling within one year after service. 38 U.S.C.A. § 1101, 1112, 1113; 38 C.F.R. § 3.307, 3.309(a). Other diseases initially diagnosed after service may also be service connected if the evidence, including that pertinent to service, shows the diseases were incurred in service. 38 C.F.R. § 3.303(d). 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 3 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 Board notes that the lack of any evidence that the Veteran exhibited hearing loss during service is not fatal to his claim. The laws and regulations do not require in- service complaints of or treatment for hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). As noted by the Court: [W]here the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post- service test results meeting the criteria of 38 C.F.R. § 3.385 . . . . For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for disability under 38 C.F.R. § 3.385, and (b) post- service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a brief of the VA Secretary). An audiogram performed by a private audiologist in May 2009 established hearing loss in the Veteran's right ear sufficient to satisfy VA regulations. 38 C.F.R. § 3.385. Specifically, upon examination, the Veteran's pure tone thresholds in his right ear were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 55 50 45 35 40 At this time, the Veteran was diagnosed with bilateral mixed hearing loss. The Veteran's right ear hearing loss was again confirmed in a VA compensation examination from January 2012. The Veteran's pure tone thresholds in his right ear were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 60 45 40 35 30 His speech recognition score was 88 percent, which is less than the required 94 percent. The examiner diagnosed mixed hearing loss in the Veteran's right ear. Consequently, there is no disputing the Veteran has a ratable hearing loss disability as it concerns his right ear. 38 C.F.R. § 3.385. Therefore, the resolution of this claim ultimately turns instead on whether his right ear hearing loss is attributable to his military service, as he is alleging, and in particular to the type of noise exposure he states he experienced during his service, or is the result of other unrelated factors or causes. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). The Veteran's service treatment records have been determined to be unavailable due to a fire at the National Personnel Records Center. Accordingly, there is no contemporaneous evidence demonstrating that the Veteran received treatment for his right ear hearing loss while in service. The Veteran provided a statement in December 2011, in which he specified that he was never treated in-service for the condition (i.e.: right ear hearing loss). However, the Veteran also stated that he did go to sick-call several times while in-service for ear and nose treatment. Although the service treatment records are unavailable, the Board notes that the lack of any evidence that the Veteran exhibited hearing loss during service is not fatal to his claim. As discussed above, the laws and regulations do not require in-service complaints of or treatment for hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran's in-service noise exposure has been conceded. The Veteran's DD 214 is of record, and confirms the Veteran's MOS as a data processing machine operator. In determining the Veteran's claim for left ear hearing loss, the RO previously found the Veteran's MOS consistent with acoustic trauma in service and conceded in-service noise exposure. As stated above, the Veteran sought treatment with a private audiologist in 2007 and 2009 for complaints of hearing loss and tinnitus. Although the audiologist diagnosed bilateral mixed hearing loss, the audiologist provided no etiology with regard to the cause of the Veteran's hearing loss. In January 2012, the Veteran underwent a VA compensation examination. During the examination, the Veteran reported military noise exposure to large data processing machinery ("very loud compared to current equipment") and indirectly to aircraft/flight line operations, as the building he worked in was located next to the flight line. Hearing protection was not provided. The examiner noted a positive history of occasional civilian occupational noise exposure working in an industrial plant, and that hearing protection was worn during this employment. The examiner also noted recreational noise exposure, to include target shooting once a year, in which he also wears hearing protection. The examiner also noted that a VA Audio examination from October 2009 showed mixed hearing loss in the right ear, and that an examination from December 2009 gave medical clearance for a hearing aid of the right ear, indicating that the mixed-type right ear hearing loss required no medical intervention. In providing an opinion as to the etiology of the Veteran's left ear hearing loss, the examiner relied on the Veteran's MOS, history of military noise exposure, history of civilian noise exposure, and the configuration of the audiogram (consistent with noise exposure) in determining the Veteran's left ear hearing loss was "at least as likely" as not the result of in-service noise exposure. However, the examiner opined that the Veteran's right ear hearing loss was "less likely as not" the result of in-service noise exposure based "primarily on the nature and configuration of the right ear hearing loss, which is not consistent with acoustic trauma." The examiner did not provide any etiology for the Veteran's current right ear hearing loss. Here, there is acknowledged noise exposure in service as evidenced by the grant of service connection for left ear hearing loss. There also medical evidence of current right ear hearing loss as defined by regulation. It is troublesome in this case that hearing loss due to noise exposure during service has been found with regard to the left ear, but not the right. It would seem that the type of acoustic trauma associated with the Veteran's duties during service would impact hearing acuity in both ears, not just one (for example, by firing a rifle which would be held closer to one ear versus the other). The examiner cited to a configuration which was inconsistent with noise exposure in the right ear, but no further discussion or reference to audiometric results was furnished in support of the opinion. The evidence in this case does not compel a grant of service connection for right ear hearing loss, and further examination would perhaps better inform the Board. However, further delay for additional examination is not necessary in this case since the Board is able to find that the positive evidence is in a state of equipoise with the negative evidence. In other words, the evidence reasonably leads to a finding that it is at least as likely as not that the right ear hearing loss is also causally related to noise exposure during service. 38 U.S.C.A. §5107(b). ORDER Service connection for right ear hearing loss is warranted. To this extent, the appeal is granted, subject to the directives in the following remand section of this decision. REMAND As a result of the above grant of service connection for right ear hearing loss, the service-connected hearing loss is now viewed as bilateral and will be rated as such under applicable rating criteria. Appellate review of the claim involving the rating for the left ear hearing loss must therefore be deferred at this time. Further, the record reflects that the Veteran received treatment for hearing loss and tinnitus at the Pensacola, Florida VA Medical Center (VAMC). Treatment records from the VAMC have not been associated with the claims file. As VA medical records are constructively of record and must be obtained, the RO should obtain such records. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should obtain copies of all relevant VA treatment records from the Pensacola VAMC. 2. The Veteran should be scheduled for a VA audiological examination to determine the current severity of his service-connected bilateral hearing loss. It is imperative that the claims folder be reviewed in conjunction with the examination. In addition to reporting audiological findings to allow for application of VA rating criteria to the bilateral hearing loss, the examiner should also offer an opinion as to whether it is at least as likely as not (a 50% or higher probability) that the Veteran's claimed tinnitus is causally related to service, to include conceded noise exposure during service. 3. After completion of the above and any other development deemed necessary, the RO should review the record and assign a rating for bilateral hearing loss and determine whether service connection is warranted for tinnitus The Veteran, and his representative, should then be furnished an appropriate supplemental statement of the case as to both issues, and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate 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). These claims 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. 2012). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs