Citation Nr: 1307586	
Decision Date: 03/07/13    Archive Date: 03/11/13

DOCKET NO.  10-25 703	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for Meniere's disease.


REPRESENTATION

Appellant represented by:	Illinois Department of Veterans Affairs


ATTORNEY FOR THE BOARD

M. G. Mazzucchelli, Counsel


INTRODUCTION

The Veteran served on active duty from September 1965 to September 1967.   

This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

The issue of entitlement to service connection for Meniere's disease is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

Bilateral hearing loss is etiologically related to the Veteran's active service.  


CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss have been met.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Notice and Assistance

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  With respect to the claim decided herein, the Board is granting in full the benefit sought on appeal.  Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed.  

Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).  

Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163 (1995).

Certain chronic diseases, including sensorineural hearing loss, may be presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service.  38 C.F.R. §§ 3.307(a)(3); 3.309(a).  Moreover, the absence of evidence of hearing loss in service is not a bar to service connection for hearing loss.  See Hensley v. Brown, 5 Vet. App. 155, 160 (1993).

For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies 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 Veteran asserts that his currently diagnosed bilateral hearing loss results from acoustic trauma during service.  His DD Form 214 indicates that he earned the Combat Infantryman's Badge for his service in Vietnam, which is consistent with participation in combat.  A combat veteran's assertions of an event during combat are to be presumed true if consistent with the time, place and circumstances of such service.  See 38 U.S.C.A. § 1154(b); Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996).  Thus, the Veteran's statements that he was exposed to acoustic trauma during service are presumed true as they are consistent with his service.  38 U.S.C.A. § 1154(b).  

The service treatment records (STRs) include a pre-induction examination conducted in May 1965 that contains multiple, confusing, audiometry findings.  Hearing loss disability at that time is not shown based on these findings, as it is not possible to determine which readings are reliable.  There are no complaints of, or treatment for, bilateral hearing loss during service.  The separation audiogram does not show hearing loss in either ear.

A private audiogram conducted in April 1993 showed bilateral hearing loss.  The Veteran reported a history of noise exposure in the Armed services.  In May 1993 he underwent a hearing aids evaluation.  A January 2001 private treatment record noted that hearing aids were in place bilaterally.  On a private otolaryngology evaluation in October 2002, the Veteran reported a history of bad hearing for the past 20 years; the Veteran attributed this to being around artillery in Vietnam.

The Veteran filed his claim for service connection in March 2008.

On the authorized audiological evaluation in February 2010, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
105
105
90
95
105
LEFT
35
60
70
60
70

Speech audiometry revealed speech recognition ability of zero percent in the right ear and of 68 percent in the left ear.

The Veteran reported having noticed decreased hearing sensitivity in both ears in approximately 1973 or 1974.  He reported a history of noise exposure in service from his duty as a heavy weapons specialist, and specifically from .50 caliber machine guns, 60 mm and 80 mm mortars, helicopters, and artillery.  He reported that most of the time no hearing protection was available.  The Veteran also reported a post-service employment history as a carpenter, with use of hearing protection.  The Veteran had a history of Meniere's disease.  The examiner diagnosed mild to moderately severe sensorineural hearing loss in the left ear, and severe to profound sensorineural hearing loss in the right ear.  Citing the lack of hearing loss shown on the service separation examination, the examiner stated that it appears that claimed hearing impairment is not caused by or the result of noise exposure experiences while in the military.

In an addendum opinion dated in April 2010, the examiner noted that the Veteran's hearing loss was caused by a combination of noise-induced damage on both sides and Meniere's disease on the right side.

The Veteran has not asserted that he first observed symptoms of hearing loss during service.  Moreover, there follows a period of over two decades during which the Veteran did not seek any form of treatment or evaluation for hearing loss.  Nevertheless, the hearing loss diagnosed many years after service cannot be clearly disassociated from the Veteran's conceded in-service exposure to loud noise.  It is significant that when the Veteran first sought treatment for his hearing loss in the early 1990s, years before he filed his claim for service connection, he reported an onset of symptoms twenty years earlier that he attributed to his history of noise exposure in Vietnam.  His report of such exposure and onset of symptoms has been consistent over the years, both before and after his filing his claim for service connection, adding to his credibility.

The negative VA opinion is predicated upon the lack of documentation of hearing loss in the STRs, as well as the normal audiogram at separation in 1967.  However, an absence of findings of hearing loss during service is not a bar to service connection.  See Hensley, supra.  

The Board accepts that the Veteran had excessive noise exposure during service, based on not only his documented combat service in Vietnam but also on his credible statements, and finds that his report as to onset of hearing loss in the ears following such service, and a continuity of symptoms to the present, to be both competent and credible.  

The evidence is in at least equipoise.  Thus, resolving doubt in his favor, service connection for bilateral hearing loss is warranted.  


ORDER

Service connection for bilateral hearing loss is granted.


REMAND

The Veteran seeks service connection for Meniere's disease.  The record shows that he first complained of symptoms of dizziness in September 2002.  Meniere's disease was suspected the following month, and diagnosed by January 2003.  The VA examiner's addendum opinion dated in April 2010 stated that it was "not shown that noise can induce Meniere's disease to develop."  

The above grant of service connection for bilateral hearing loss raises the question of whether hearing loss (or tinnitus, which is also service connected) may cause or aggravate Meniere's disease.  Another VA examination with an opinion addressing this question is required.

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a VA examination to determine the current nature and likely etiology of the claimed Meniere's disease.  The entire claims file (i.e. both the paper claims file and any medical records contained in Virtual VA) is to be made available to and be reviewed by the examiner in conjunction with the examination.  If the examiner does not have access to Virtual VA, any treatment records contained in the Virtual VA file must be printed and associated with the paper claims file so they can be available to the examiner for review.  

Based on the examination and review of the record, the examiner is to address the following:  is at least as likely as not (a 50 percent or greater probability) that Meniere's disease was caused or aggravated by the Veteran's service-connected bilateral hearing loss and/or tinnitus?

The examiner is informed that "aggravation" is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression.  If aggravation is present, the clinician is to indicate, to the extent possible, the approximate level of disability present (i.e., a baseline) before the onset of the aggravation.

A complete rationale for all opinions expressed must be provided.  If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner is to state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training).

2.  Review the claims file to ensure that the foregoing development is completed, and arrange for any additional development indicated.  Then readjudicate the claim for service connection for Meniere's disease, to include on a secondary basis.  If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond.  The case should then be returned to the Board for further appellate review.

The appellant has the right to submit additional evidence and argument on the matter 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. 2010).



______________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs