Citation Nr: 1306349 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 10-38 008 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD C. Fields, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1968 to February 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran and his wife testified before the undersigned via a videoconference hearing at the RO in January 2012, and a transcript of that hearing is associated with the claims file. To date, all pertinent records in the Veteran's Virtual VA file (a highly secure electronic storage system) are also in the paper claims file. 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 Upon review of the record, the Board finds that further development is required in this case. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record, so that every possible consideration is given for the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Veteran contends that he currently has bilateral hearing loss and tinnitus as a result of hazardous noise exposure through his duties as an aircraft mechanic on the flight line from during service from August 1968 to February 1972. His June 1968 service entrance examination showed a bilateral hearing loss disability for VA purposes. Although the pure tone thresholds were within normal limits at the 500 to 2000 Hertz levels bilaterally (with 0 decibels in the right ear and from -10 to 0 decibels in the left ear), the thresholds were 40 decibels in each ear at the 4000 Hertz level. See 38 C.F.R. § 3.385 (2012). As such, the presumption of soundness upon entry into service does not apply. See 38 C.F.R. § 3.304(b). The Veteran contends, however, that his preexisting bilateral hearing loss was permanently worsened in severity (aggravated) by the noise exposure during service. A preexisting injury or disease will be considered to have been aggravated by active 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 a disease. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence in the 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(a)&(b); see also Paulson v. Brown, 7 Vet. App. 466, 468 (1995); Falzone v. Brown, 8 Vet. App. 398, 402 (1995) The Veteran's military occupational specialty of aircraft mechanic has been noted to involve a high probability of hazardous noise exposure, and he states that he did not wear hearing protection during service. He was also treated for otitis externa in the left ear in April 1970 and June 1971, although there were no specific complaints of hearing loss or symptoms of tinnitus. During his February 1972 separation examination, the Veteran had pure tone thresholds of 40 decibels in the left ear and 45 decibels in the right ear at the 4000 Hertz level. The thresholds ranged from 0 to 5 decibels in the left ear and from 10 to 15 decibels in the right ear at the 500 to 2000 Hertz levels. The Board notes that service department records dated October 31, 1967, or earlier are presumed to be in ASA units and must be converted to ISO (ANSI) units to be compared to other readings. In this case, the Veteran's readings during service were all after this date. Additionally, the readings during service are not the only relevant information to determine whether his current hearing loss was aggravated during service, or whether tinnitus was caused by service. Rather, VA must also consider the lay testimony from the Veteran and his wife as to continuity of symptomatology. In this regard, the Veteran and his wife testified during the January 2012 Board hearing that they both noticed that he had significant hearing loss in the mid- to late-1970s, or shortly after service. The Veteran also testified that he did not have ringing in the ears prior to service, but that he did have ringing in the ears (or tinnitus) shortly after service. There is no reason to doubt these reports based on the available evidence. The Veteran has reported working as a farmer starting shortly after service and throughout his life, including using combines and tractors with well-insulated inside cabs. The tractors were also known for their lower decibel output. Thus, the Veteran did not attribute his hearing loss to his work as a farmer. The Veteran also reported hunting ducks a few times 3-4 years after service without ear plugs, and that he is a right-handed shooter. Additionally, he reported working part-time as a truck driver during the last few years at the July 2009 VA examination. The Veteran has submitted private records dated in 2007 and 2008, which generally show a bilateral hearing loss disability, as well as treatment for ear infections and blockage of the ears. He has not identified any VA or other treatment after service and prior to that time. As noted above, the Veteran was also treated for otitis externa during service. He states that the daily noise from jet engines and helicopters in service was the loudest noise he has ever experienced. The Veteran was afforded a VA examination in September 2009. The examiner noted the Veteran's service and post-service noise exposure as summarized above, but not the reports of continuity of symptomatology since the mid-to-late 1970s as subsequently reported by the Veteran and his wife during the Board hearing. The examiner opined that the Veteran's hearing loss was less likely than not aggravated by service. She reasoned that there was no significant threshold shift in the pure tone thresholds at the Veteran's entrance and exit into service when converting from ASA to ISO units. As noted above, the Veteran's tests were conducted after the presumed date at which service department records are presumed to be in ASA units, so this conversion appears to have been unnecessary. The examiner stated that the Veteran currently has a significant decline in hearing since service, but the etiology of this decline is ambiguous. Concerning tinnitus, the examiner stated that she could not resolve the issue of whether such disability was incurred as a result of noise exposure during service because the hearing loss was not aggravated in service and the Veteran reported tinnitus sometime in the 1970s after the time when he reported duck hunting a few times without hearing protection. In summary, the Veteran has a history of bilateral hearing loss that preexisted service, multiple sources of noise exposure during and after service (although the Veteran states that the noise exposure during service without hearing protection was by far the loudest), and treatment for ear infections and blockage during and after service. He and his wife have also testified to continuity of symptomatology of hearing loss and tinnitus since the 1970s, which does not appear to have been considered by the VA examiner in offering the medical opinions. Under these circumstances, the Board finds that an addendum report is necessary with consideration of all pertinent evidence. Accordingly, the case is REMANDED for the following action: 1. Forward the entire claims file, including a copy of this remand, to the September 2009 VA examiner for an addendum opinion as to the etiology of the Veteran's current hearing loss and tinnitus. (If that examiner is not available, the file should be forwarded to another appropriate individual for an opinion. A new VA examination should be scheduled only if deemed necessary by the examiner.) Review of the claims file should be noted in the addendum report. The examiner should respond to the following: (a) Was the Veteran's preexisting hearing loss disability aggravated (permanently worsened) as result of service beyond the natural progress of the disease, to include due to hazardous noise exposure or treatment for otitis externa? There must be clear and unmistakable evidence that the condition was not aggravated beyond its normal progression by service. The examiner is advised that the conversion from ASA to ISO units for the service audiometric reasons does not appear to be necessary. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence and also by lay statements from the Veteran (and his wife) as to the nature, severity, and frequency of his observable symptoms over time. (b) Is it at least as likely as not (probability of 50 percent or more) that the Veteran's current tinnitus was incurred as a result of military service, to include due to hazardous noise exposure or treatment for otitis externa? Please note that he is competent to report tinnitus by its observable symptoms. A complete rationale should be provided for any opinion offered, which should reflect consideration of all evidence of record. The statements by the Veteran and his wife as to the onset and continuity of his observable symptoms should be considered along with the other evidence. If any requested opinion cannot be offered without resorting to speculation, the examiner should indicate such in the report and explain why a non-speculative opinion cannot be offered. 2. After completing the requested actions, and any additional notification and/or development warranted, the RO/AMC should readjudicate the claim based on all lay and medical evidence of record. If the claims remain denied, provide a supplemental statement of the case (SSOC) to the Veteran and his representative, which addresses all relevant law and all evidence associated with the claims file since the last SSOC. Allow an appropriate period of time for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The purpose of this REMAND is to ensure compliance with due process considerations. 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. All claims 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). _________________________________________________ ERIC S. LEBOFF 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).