Citation Nr: 1311499 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 10-25 997 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida 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 perforated ear drum. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran had active service from April 1967 to April 1969 and July 1971 to July 1974, including service in the Republic of Vietnam. His decorations include the Combat Infantry Badge. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before a Veterans Law Judge (VLJ) seated at the RO in June 2012. A transcript of that hearing is associated with the claims file. In a February 2013 letter, the Board informed the Veteran that the VLJ who conducted the hearing was no longer employed by the Board, and indicated that he was entitled to another hearing. In March 2013 the Veteran responded in a signed statement that he did not wish to attend a second Board hearing. Accordingly, the Board will proceed with the consideration of his case. The Board notes that the Veteran's original claim application dated July 2008 identifies a perforated left ear drum. An August 1968 service treatment record shows a perforated right ear drum. The United States Court of Appeals for Veterans Claims (Court) held that a claimant's identification of the benefit sought does not require any technical precision. See Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007) ("It is the pro se claimant who knows that symptoms he is experiencing and that are causing him disability...[and] it is the Secretary who knows the provisions of title 38 and can evaluate whether there is a potential under the law to compensate an averred disability based on a sympathetic reading of the material in a pro se submission.") Additionally, a claimant may satisfy this requirement by referring to a body part or system that is disabled or by describing symptoms of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). Therefore, the Board has recharacterized the claim on appeal as listed on the cover page. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they do not contain any additional evidence relevant to the issue on appeal. The issue of entitlement to service connection for residuals of perforated ear drum is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. Resolving all doubt in favor of the Veteran, current bilateral hearing loss is related to service. 2. Resolving all doubt in favor of the Veteran, current tinnitus is related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2012). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants service connection for bilateral hearing loss and tinnitus. As this represents a complete grant of the benefits sought on appeal, no discussion of VA's duty to notify and assist is necessary. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). A. Bilateral hearing loss The Veteran alleges by lay statement and hearing testimony that his bilateral hearing loss originally manifested in service and has continued to the present day. After service, he worked at a loading dock for a trucking company and denies any occupational noise exposure. In documents of record and at his hearing, the Veteran contends that he developed his currently diagnosed bilateral hearing loss during active service, as the result of exposure to excessive noise. The Veteran was a combat infantryman in Vietnam and participated in many operations in "free fire zones" where he was exposed to weapons fire almost daily. In July 1968, during a fire fight a grenade exploded just a few feet from the Veteran. He stated he lost his hearing completely and was taken immediately to sick call. Service treatment records confirm this event, showing a small central perforation of the right ear drum in August 1968. The Veteran testified by lay statements and at his hearing that his hearing loss has continued since the day of the grenade blast. He testified that he was given ear plugs in training, but in the reality of combat no hearing protection was used because it would prevent them from hearing orders that were called. As a result, he had no hearing protection while he was in combat. In addition to his combat noise exposure, the Veteran served as the NCIC of a rifle range where he taught boot camp personnel how to fire an M16 rifle. He was exposed daily to rifle fire at least eight hours per day, five days a week. At any given time, 200 to 250 recruits were shooting weapons on the rifle range, resulting in constant impulse noise. The Veteran is competent to report a history of in-service noise exposure. See 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). His assertions are considered credible as they are consistent with his documented service and with his military occupational specialties. Accordingly, the Board finds that the Veteran was exposed to excessive noise in service. The service treatment records (STRs) contain five audiograms dated between October 1966 and April 1974, none of which show auditory thresholds that meet the criteria for hearing loss for VA purposes. The STRs do not document any complaints or findings of hearing loss in service. However, the Court of Appeals for Veterans Claims (Court) has held that VA regulations do not preclude service connection for hearing loss which first met VA's definition of disability after service, if evidence is received showing that a current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran has been diagnosed with current bilateral hearing loss disability for VA adjudication purposes. For 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; when the auditory thresholds for at least three of the above 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 threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Id. The record contains a private audiogram conducted in June 2008 by a private state-licensed audiologist. Although the audiogram is in graph form, it appears that puretone threshold levels, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 35 55 65 LEFT 25 20 45 60 75 Speech discrimination scores were 100 percent in the right ear and 88 percent in the left ear using the Maryland CNC Test. In both ears, at least one of the auditory thresholds was 40 decibels or more. Therefore, during the appeal period the Veteran had hearing loss disability for VA purposes in both ears. The private audiologist noted that based on his audiogram and an interview with the Veteran, it is more likely than not that the Veteran has post-deployment noise-induced hearing loss, "especially in absence of any other significant noise exposure or other otologic history." He provided a thorough history of the Veteran's noise exposure, including M60 machine gun fire and anti-tank weapons, the grenade blast, and absence of post-service noise exposure. He stated that the Veteran's hearing is normal in the low frequencies, sloping to a severe loss in the high frequencies bilaterally. This type and degree of hearing impairment was likely to result in difficulty understanding speech in noisy environments. The audiologist recommended a trial period with amplification, annual hearing evaluations, and wearing hearing protection during future noise exposure. The Board finds that this medical opinion is probative, as it is supported by a sufficient rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Only one VA treatment record in the claims file addresses the Veteran's hearing. An August 2008 audiology consult states that the Veteran passed a preventive hearing screening and that an audiological evaluation was not indicated. There is no explanation of what the screening entailed. The Veteran was afforded a VA examination in March 2009. The examiner conceded noise exposure in service but was unable to obtain reliable tests results suitable for rating purposes. The examiner stated that he could not determine the etiology of the Veteran's hearing loss, but still opined that it was less likely than not related to military noise exposure. He relied on the normal audiograms in the STRs and stated that studies show hearing loss does not have delayed onset. He felt some of the hearing loss might be non-organic or related to aging or occupational noise. In summary, the Veteran was clearly exposed to significant noise in service and probative evidence indicates he has current hearing loss disability for VA purposes. There are competent medical opinions both in favor of and against the claim. Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). Thus, with resolution of reasonable doubt in the Veteran's favor, service connection is warranted for bilateral hearing loss. B. Tinnitus As discussed in the previous section, the Board has found that the Veteran was exposed to excessive noise during service. The record also reflects current diagnoses of tinnitus. Specifically, in July 2008 a private audiologist noted the Veteran's report of constant tinnitus bilaterally. The March 2009 VA examiner noted complaint of constant rushing or ringing tinnitus in the left ear. Moreover, tinnitus is a disorder that is readily observable by laypersons and does not require medical expertise to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). Therefore, the remaining inquiry is whether the Veteran's current tinnitus is related to his in-service noise exposure. Notably, an STR dated August 1968 shows a complaint of tinnitus following a grenade blast in July 1968. The Veteran consistently testified by lay statements and at his hearing that his tinnitus has continued since the day of the grenade blast. The Veteran is competent to report a history of tinnitus symptoms. Layno, supra. Moreover, the Board finds his assertions are credible as they are consistent and supported by the STR showing a complaint of tinnitus in service. The July 2008 letter from the private audiologist stated that it is more likely than not that the Veteran's tinnitus results from post-deployment noise, "especially in absence of any other significant noise exposure or other otologic history." The Board finds that this medical opinion is probative, as it is based on an interview with the Veteran and supported by a sufficient rationale. Prejean, supra. The Veteran was afforded a VA examination in March 2009. The examiner acknowledged tinnitus in the left ear but could not determine whether there was tinnitus in the right ear. The examiner stated that he could not determine the etiology of the Veteran's tinnitus, but still opined that it was less likely than not related to military noise exposure. He felt the Veteran's current tinnitus was not the same as that seen during active duty, because only seldom does noise cause a permanent tinnitus without also causing hearing loss. In this case, the Veteran has competently and credibly testified that he has suffered from tinnitus since service, and his STRs confirm he reported tinnitus at that time. There are competent medical opinions both in favor of and against the claim. Thus, a state of relative equipoise has been reached in this case, and the benefit-of-the-doubt rule will therefore be applied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Accordingly, service connection for tinnitus is established. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. REMAND The Veteran also seeks service connection for residuals of perforated ear drum. For the reasons that follow, his claim must be remanded. An August 1968 STR shows that the Veteran had a small central perforation of the right ear drum in service. However, it is unclear whether he has a current disability related to that perforation. The 2009 VA audiological examiner stated that there were no residuals today from that perforation but did not explain how he arrived at that finding. At his hearing the Veteran indicated that several different doctors have examined his ears over the years, and that his ears were examined shortly after separation from service. Accordingly, remand is necessary to attempt to obtain any outstanding relevant treatment records. VA's duty to assist includes a duty to provide a medical examination or to obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board finds that a new VA ear examination is necessary to determine whether the Veteran has a current disability in either ear related to the 1968 ear drum perforation. Accordingly, the case is REMANDED for the following actions: 1. Obtain any VA treatment records from the Daytona Beach outpatient clinic that are relevant to the Veteran's ears. If there are no relevant records, the claims file should be annotated to reflect such. 2. Request that the Veteran identify all sources of private and VA treatment and evaluation for his ears. After securing any necessary release, request any relevant records identified which are not duplicates of those contained in the claims file. If any requested records are not available, the Veteran should be notified of such. 3. After the above has been completed, the Veteran should be afforded a VA ear examination in order to determine whether the Veteran suffers from any residual of the in-service ear perforation. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. Any necessary tests should be conducted. After examining the Veteran and reviewing the claims file, the examiner should a) Specifically note whether there are any visible residuals of an ear drum perforation in either ear, to include scarring of the drum. b) If so, the examiner should an opinion as to whether any current perforation residual is at least as likely as not (50 percent probability or greater) related to his active service, to include the 1968 ear drum perforation. The examiner must provide the reasoning for the conclusions reached. 4. The RO/AMC should then readjudicate the Veteran's claim. If the benefits sought on appeal remain denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran 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 or by the Court 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). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs