Citation Nr: 1305207 Decision Date: 02/13/13 Archive Date: 02/21/13 DOCKET NO. 10-37 151 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for residuals of right elbow injury. 4. Entitlement to service connection for residuals of back injury, to include residuals of pilonidal cyst. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARINGS ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from October 1959 to January 1962. This matter comes to the Board of Veterans' Appeals (Board) from a June 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was filed in February 2008, a statement of the case was issued in June 2010, and a substantive appeal was received in August 2010. The Veteran testified at a RO hearing in August 2009 and at a Board hearing in January 2012; the transcripts are of record. At the hearing, the Veteran provided testimony pertaining to his claimed residuals of back injury, to include incurring a pilonidal cyst during service. Thus, the issue has been recharacterized hereinabove. 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 Bilateral hearing loss & tinnitus A November 1961 examination report conducted for separation purposes reflects normal audiometric results. In June 2010, the Veteran underwent a VA audiological examination. The examiner opined that due to the lack of documentation of an "OSHA-defined STS [standard threshold shift]" during service, his current hearing loss and tinnitus are not related to service. The record reflects that the Veteran did not undergo audiological testing when he entered service. While the audiological testing at service separation reportedly showed "0" decibel losses at all frequencies in both ears, it was not reported what standard was used or what those findings would convert to using modern standards. It is also not apparent from the examination report why the absence of an "OSHA-defined STS" would preclude a finding that current hearing loss or tinnitus was unrelated to service. The Veteran testified that he initially experienced tinnitus during service but was told by a physician that it would go away. (Board T. at 11-12.) He also testified that his ringing of the ears would go away at times and then would start back up again. (Board T. at 27.) The Veteran asserts that following service he sought private treatment for hearing loss; however, the records are unavailable as the physician is deceased. The Veteran's spouse testified that she and the Veteran married 6 months after his separation from service and she noticed a difference in his hearing in late January 1962. (Board T. at 28.) In light of the testimony of the Veteran and his spouse pertaining to his claimed tinnitus and hearing loss, and questions about the June 2010 opinion, another opinion is required. Residuals of right elbow injury The Veteran's October 1959 Report of Medical Examination and Report of Medical History reflect that the Veteran fractured his left arm in 1951 and fractured his left hand in 1953. The October 1959 Report of Medical Examination reflects a "1inch cs [cicatrix] posterior right elbow." No defects or diagnoses are noted on his November 1961 separation examination. A veteran is presumed to be in sound condition when examined, accepted, and enrolled for service; except for defects, infirmities or disorders noted or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C.A. § 1111 (West 2002). A preexisting injury or disease will be considered to have been aggravated by active military, naval or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306 (2012). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Moreover, temporary flare-ups during service of the symptoms of a disability, without overall worsening of the condition itself, do not constitute aggravation of the disability. See Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). The Veteran asserts that in or about April 1960 he was washing vehicles and slipped and fell on his right elbow. As a result, he incurred a dimple about the size of a quarter. He asserts an in-service doctor told him that the dimple would grow back out. The Veteran's spouse testified that following the Veteran's service she and their children noticed that he had a "funny elbow." In light of the testimony pertaining to the elbow, VA's duty to provide an examination is triggered. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Residuals of back injury, to include pilonidal cyst An April 22, 1960 service treatment record reflects that the Veteran injured his back in February 1960 during basic training. He experienced a recurrence of symptoms on April 21 of the same nature. The pain was in the midline at the sacral tip and was made worse by cough and getting up from a seated position. A drained pilonidal cyst was referenced. The Veteran also asserts that at the time of the April 1960 injury, he fell on his tailbone, injuring his back. In light of the Veteran's complaints documented during service and his competent reports, an examination is needed to assess whether any current disability is related to the in-service injury. Id. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA audiometric examination to ascertain whether any current bilateral hearing loss or tinnitus is related to service. It is imperative that the claims file be made available to and be reviewed by the examiner. The examiner should offer an opinion as to the following: a) whether it is at least as likely as not (a 50 percent or higher degree of probability) that bilateral hearing loss had its onset during his period of service or is otherwise related to the Veteran's period of service, including noise exposure; b) whether it is at least as likely as not (a 50 percent or higher degree of probability) that tinnitus had its clinical onset during his period of service or is otherwise related to the Veteran's period of service; c) what standard was most likely used to conduct the Veteran's audiology examination in November 1961 (e.g. A.S.A or I.S.O) and what would the result be, if converted to current standards; d) if the service separation examination did not show hearing loss or a significant threshold shift, whether the Veteran's current hearing loss, as likely as not, was a delayed response to in-service noise exposure. The examiner must provide reasons for these opinions. The examiner is advised that the Veteran is competent to report his symptoms and history; and that his spouse is competent to report her observations dating back to 1962; and that their reports must be considered in formulating the requested opinions. If the examiner rejects the reports of the Veteran and his spouse, the examiner must provide reasons for doing so; the mere absence of supporting clinical evidence is an insufficient reason; by itself for rejecting their reports. If any requested opinions cannot be provided without resort to speculation, the examiner should explain why this is so; and whether the inability to provide the necessary opinion is due to the limits of medical and scientific knowledge or is due to the absence of specific evidence. The examiner should reconcile any opinion with the service treatment records, lay statements of noise exposure during his period of active duty and post-service lay statements of the Veteran and his spouse pertaining to hearing loss symptomatology, and any post-service medical findings of bilateral hearing loss and tinnitus. 2. Schedule the Veteran for a VA examination with a physician to ascertain whether he has current right elbow or back disability, or pilonidal cyst residuals; and whether any such disability is the result of a disease or injury in service. It is imperative that the claims file be made available to and be reviewed by the examiner. The examiner should identify all disabilities of the right elbow and back. The examiner should offer an opinion as to the following: a) whether it is at least as likely as not (a 50 percent or higher degree of probability) that a disability of the right elbow had its onset during his period of service or is otherwise related to the Veteran's period of service; b) whether any pre-existing right elbow disability, as evidenced by the scar on the induction examination and records of pre-service injury, undergo no an increase in disability during active service beyond natural progress; and whether any current right elbow disability is otherwise the result of a disease or injury in service; c) whether it is at least as likely as not (a 50 percent or higher degree of probability) that a disability of the back had its clinical onset during his period of service or is otherwise related to the Veteran's period of service; d) whether it is at least as likely as not (a 50 percent or higher degree of probability) that the Veteran has residuals of pilonidal cyst that had its clinical onset during his period of service or is otherwise related to the Veteran's period of service. The examiner must provide reasons for these opinions. The examiner is advised that the Veteran is competent to report his symptoms and history; and that his spouse is competent to report her observations dating back to 1962; and that their reports must be considered in formulating the requested opinions. If the examiner rejects the reports of the Veteran and his spouse, the examiner must provide reasons for doing so; the mere absence of supporting clinical evidence is an insufficient reason; by itself for rejecting their reports. If any requested opinions cannot be provided without resort to speculation, the examiner should explain why this is so; and whether the inability to provide the necessary opinion is due to the limits of medical and scientific knowledge or is due to the absence of specific evidence. The examiner should reconcile any opinion with the service treatment records, lay statements of injury and symptoms during his period of active duty and post-service lay statements of the Veteran and his spouse pertaining to elbow and back symptomatology, and any post-service medical findings of a back disability and right elbow disability. 3. If any of the benefits sought on appeal remain denied, issue a supplemental statement of the case; then return the case the Board, if otherwise in order. The Veteran and his representative have 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. 2011). _________________________________________________ Mark D. Hindin 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).