Citation Nr: 1309225 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 10-11 273 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for left ear hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran had active military service from March 1966 to March 1968. The Veteran's personnel records indicate he was awarded the Combat Medical Badge, the Sharpshooter Rifle, the Vietnam Service Medical with one Bronze Service Star, and the Army Commendation Medal with V Device among others. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran testified at a videoconference hearing before the undersigned in February 2012. A transcript of that hearing has been reviewed and associated with the claims file. 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 Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a) 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012). The Board notes that service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2012). With chronic diseases shown in service, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected. See 38 C.F.R. § 3.303(b) (2012). In addition, certain chronic diseases, such as sensorineural hearing loss, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. See 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Hearing loss disability is defined by regulation. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three 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. See 38 C.F.R. § 3.385 (2012). The United States Court of Appeals for Veterans Claims (Court) has held that "the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss." See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court, in Hensley, 5 Vet. App. 155 (1993), indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. The Board notes that the Court's directives in Hensley are consistent with 38 C.F.R. § 3.303(d) which provides that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2012). The Board further notes that every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C.A. §§ 1111, 1132, 1137; 38 C.F.R. § 3.304(b). Notwithstanding the provisions of 38 U.S.C.A. § 1132, the wartime provisions of 38 U.S.C.A § 1111 shall be applicable in the case of any Veteran who served in the active military, naval, or air service after December 31, 1946, including peacetime Veterans. 3 8 U.S.C.A. § 1137. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b) (2012). Under 38 U.S.C.A. § 1111, the presumption of soundness may be rebutted by clear and unmistakable evidence that a disease or injury existed prior to service and was not aggravated therein. The burden of proof is upon VA to rebut the presumption by producing that clear and unmistakable evidence. See Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). If a preexisting disability is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disability, but the Veteran may bring a claim for service-connected aggravation of that disability. In that case, § 1153 applies and the burden falls on the Veteran to establish that an increase in severity of the disability occurred in service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). A preexisting injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). The presumption of aggravation applies only when pre-service disability increases in severity during service. Beverly v. Brown, 9 Vet. App. 402, 405 (1996). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306 - 07 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). However, if an increase is shown, the presumption of aggravation may be rebutted only by clear and unmistakable evidence that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a), (b). According to the Veteran's service treatment records, the January 1966 Report of Medical History at entrance noted the Veteran had an ear injury resulting from being hit with a rock at the age of 17. A Report of Medical Examination at entrance noted impairment of hearing loss in the left ear. The right ear was within normal limits. In the March 1968 Report of Medical History at separation from service, the Veteran reported he had ear trouble and hearing loss. The Veteran also reported on the pre-service history of a blow to the head. The Veteran indicated that at that time he sustained a 75 percent loss of hearing in the left ear. The March 1968 Report of Medical Examination did not report any audiological findings. The Veteran underwent a QTC audiologic examination in March 2009 where he reported his left ear hearing loss started when he was 15 years old and he noticed right ear hearing loss sometime in the 1970's. He also reported that his tinnitus also started when he sustained a head injury when he was 15 years old. He stated the tinnitus was constant in only the left ear. The Veteran reported a history of noise exposure from artillery, mortar, improvised explosive devices, rocket-propelled grenades, small weapons, and aircraft/jet engines. He stated he was not provided with hearing protection during this time. Post-service, the Veteran was employed as a logger for 43 years and did not begin using hearing protection until the late 1980s/ early 1990s. Upon review of the claims file and an examination, the audiologist opined that given the Veteran's history "that by far the largest dose of unprotected noise exposure was following military service, where he was employed as a logger for approximately 43 years" the Veteran's bilateral hearing loss and left ear tinnitus were not the result of acoustic trauma during service. The Board finds, however, that the March 2009 audiologic examination is inadequate. Regarding the left ear hearing loss and tinnitus, the audiologist did not consider the question of preexistence or aggravation but rather addressed the issue solely on the basis of service incurrence. Therefore, remand for an addendum and readjudication as to the questions of preexistence and aggravation, if applicable, regarding the Veteran's claimed left ear hearing loss and tinnitus is found to be in order. In addition, regarding the right ear hearing loss, the Veteran has repeatedly stated that he sustained acoustic trauma while he was stationed in Vietnam as a Medical Specialist. The Board is cognizant that the examiner did not discuss the impact of the Veteran's acoustic trauma during his military service in combat. In this regard, the examiner should comment on the significance, if any, of this in-service noise exposure. Lastly, at the Board hearing, the Veteran appeared to indicate that in connection with his employment in the logging industry, he underwent hearing tests. The Veteran should be requested to identify the places of employment and an attempt to obtain any hearing tests conducted in connection with his employment, should be procured. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify the relevant information concerning the hearing tests he testified about receiving throughout the years as part of his employment in the logging industry after his military service. If the Veteran responds make reasonable efforts to obtain these records and notify the Veteran of any responses received and what further steps VA will make regarding the claim in accordance with 38 C.F.R. § 3.159(c)(1) (records not in the custody of a Federal department or agency), (e) (duty to notify claimant of inability to obtain records). 2. Thereafter, the claims file should be returned to the examiner who conducted the March 2009 audiologic examination (or other suitable examiner if unavailable). In an addendum, the examiner is to accept as fact that the Veteran was exposed to combat noise during service and is asked to address the following questions, offering a complete rationale for each opinion provided: (a) In regard to the left ear, is it at least as likely as not (50 percent probability or greater) that the Veteran's pre-existing hearing loss underwent an increase in severity in service (i.e., a permanent worsening of the underlying disease as distinguished from a temporary or intermittent flare-up) including as the result of combat noise exposure? If YES, is the increase in severity of the hearing loss clearly and unmistakably (i.e., highest degree of medical certainty) due to the natural progress of the disorder? (b) In regard to the right ear, is it at least as likely as not (50 percent probability or greater) that any current hearing loss is etiologically related to the Veteran's period of active service, including combat noise exposure? (c) In regard to tinnitus, is it clear and unmistakable (i.e., highest degree of medical certainty) that the Veteran entered service with a pre-existing tinnitus disorder? If (YES) the Veteran entered service with pre-existing tinnitus, is it clear and unmistakable (i.e., highest degree of medical certainty) that the tinnitus WAS NOT aggravated beyond the natural progress of the disorder by his service including as the result of combat noise exposure? IF (NO) the Veteran did not enter service with pre-existing tinnitus, is it at least as likely as not (50 percent probability or greater) that any current tinnitus is etiologically related to the Veteran's period of active service, including combat noise exposure? If it is the opinion of the examiner that the Veteran's current hearing disorder is the result of aging, post-service noise exposure, or any other process not related to in-service acoustic trauma, a rationale must be provided to fully explain why the Veteran's current symptomatology is not consistent with in-service noise exposure or why such exposure is not at least a "contributing factor" to any current hearing loss. If no opinion can be rendered without resorting to pure speculation, the examiner should explain why this is not possible. 3. Upon completion of the addendum, review the examiner's report to ensure substantial compliance with the Board's directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Take any necessary corrective action. 38 C.F.R. § 4.2. 4. Following the completion of the foregoing, the AMC should readjudicate the Veteran's claims, considering all applicable laws and regulations. The AMC should provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. 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). _________________________________________________ TANYA A. SMITH 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).