Citation Nr: 1313076 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 11-14 824 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active military service from November 1954 to January 1959. These matters come to the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, that denied entitlement to a TDIU, and from an October 2008 rating decision of the VARO in Jackson, Mississippi that denied service connection for left ear hearing loss and for tinnitus. Jurisdiction of these matters is with the RO in Jackson, Mississippi. The Veteran was scheduled for a hearing before RO personnel; however, in March 2010, the Veteran cancelled his request for a hearing and requested that a decision be made based on the evidence of record. The Board notes that in November 2012, the American Legion submitted a VA form 646, statement of accredited representative, on the Veteran's behalf. However, a VA Form 21-22 associated with the claims file shows that the Mississippi Veterans Affairs Commission represents the Veteran and such representation had not been revoked. The American Legion contacted the Veteran for clarification as to who he had appointed as his representative. In a March 2013 written memorandum, the American Legion reported that the Veteran denied signing a VA form 21-22 in favor of them. Therefore, the Mississippi Veterans Affairs Commission is properly identified as representing the Veteran. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 The Veteran asserts that he has left ear hearing loss and tinnitus due to noise exposure in service or as a result of a head injury sustained during service. Specifically, the Veteran states that he was exposed to acoustic trauma during service from gun fire and from depth charges. Service records confirm that the Veteran was in an accident in which he suffered trauma to the head and is service-connected for various residual disabilities. VA has conceded exposure to acoustic trauma during military service. The Veteran's enlistment physical examination in November 1954 only shows that whispered voice testing was performed, resulting in 15/15. Service treatment records show that the Veteran was involved in a motor vehicle accident and suffered, among other things, a contusion to the brain, scalp laceration, and injury to the jaw. A separation examination is not of record. However, in May 1959, the Veteran underwent a VA audiometric examination. The Board notes that VA audiometric tests prior to June 30, 1966 were in American Standards Association (ASA) units and must be converted to International Standard Organization (ISO) units. The May 1959 VA audiological evaluation of the Veteran (bone conduction study) revealed pure tone thresholds, in decibels, were reported as follows (with converted ISO units in parentheses): HERTZ 500 1000 2000 3000 4000 RIGHT LEFT 10(25) 10(20) 15(25) - 20(25) A May 1959 VA ENT clinic report reflects that the Veteran was diagnosed with inspissated cerumen, bilateral, more marked left. It was noted that the audiograph indicated normal hearing. In an April 2009 VA traumatic brain injury examination report, it was noted that the Veteran related his left ear hearing loss to his brain trauma in service. The Veteran was afforded a VA audiology examination in April 2010 in connection with his claim for service connection for left ear hearing loss and tinnitus. The audiometric results revealed that the Veteran had a left ear hearing loss disability by VA standards pursuant to 38 C.F.R. § 3.385. The Veteran reported tinnitus that is recurrent and has been present as long as he can remember. Noting that there were no audiograms in the file to indicate the status of the Veteran's hearing when he entered or exited service, the examiner stated that she could not opine whether the Veteran's hearing loss and/or tinnitus were the result of the head injury sustained in service without resorting to mere speculation. The Veteran was seen by an ENT in June 2010 who found that the Veteran had ear pain related to temporomandibular joint dysfunction, but no opinion was provided as to the Veteran's left ear hearing loss or his tinnitus. The claims file was returned to the April 2010 VA audiology examiner who provided an addendum in March 2011, noting that she reviewed the claims file thoroughly. She noted that a May 1959 hearing examination showed that the Veteran had normal hearing in both ears at all frequencies and that it was her opinion that the Veteran's hearing loss was not the result of military noise exposure or head injury that occurred during service. Likewise, since there are no complaints of tinnitus anywhere in the medical records during service, it was her opinion that the Veteran's tinnitus was not likely due to military noise exposure or head trauma. The Board acknowledges that the Veteran's service treatment records do not show a left ear hearing loss disability or tinnitus during service. However, the absence of a hearing disability during service is not always fatal to a service connection claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Service connection for a left ear hearing loss disability may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service, as opposed to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155 (1993). That also applies to tinnitus. In light of the above, the Board finds that VA examiner's opinion provided in March 2011 is inadequate. Furthermore, as it is not clear that the VA examiner considered the conversion of the May 1959 audiometric findings from ASA to ISO-ANSI standards, the Board accords the March 2011 VA examiner's opinion of little probative value. Therefore, the Board finds that another VA medical examination and opinion is necessary to determine the etiology of the Veteran's left ear hearing loss and tinnitus. In addition, all outstanding VA medical records pertaining to treatment for hearing loss and tinnitus should be associated with the claims file, to include all audiometric results. A December 2005 VA record notes that the Veteran was seen for a hearing evaluation and that an audiogram was performed. However, there is no copy of the audiometric results associated with the claims file. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Regarding the Veteran's claim for entitlement to TDIU, the Board determines that additional development is also necessary prior to adjudication. The Veteran is service connected for chronic brain syndrome, rated as 50 percent disabling; the residuals of a left condylectomy, rated as 30 percent disabling; impairment of the left trigeminal nerve, rated as 30 percent disabling; paralysis of the left facial nerve, rated as 10 percent disabling; and, impairment of the left valgus nerve, fractures of the left 12th rib and right mandible, and scars of the left hand and right arm, each rated as noncompensable. He was afforded a series of examinations to assess how the aforementioned service connected disabilities effected his employability. While the four opinions address the individual effect of the Veteran's service-connected disabilities, none of the opinions consider how his disabilities may together affect his overall disability picture. A fifth (general medical) examination only assessed the Veteran's non-service connected disorders. However, as per 38 C.F.R. § 4.16, entitlement to TDIU is determined based on how the Veteran's service-connected disabilities collectively impact his employability. An opinion is necessary in order to determine whether the Veteran's service-connected disabilities, when viewed collectively as opposed to individually, cause him to be unemployable. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain all outstanding VA medical records pertaining to the treatment of hearing loss and tinnitus from May 1959 to the present, to include all copies of audiograms. 2. Thereafter, schedule the Veteran for an appropriate VA examination to determine the etiology of his left ear hearing loss and tinnitus. The examiner must review the claims file and must note that review in the report. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. The examiner should opine whether it is at least as likely as not (50 percent probability or higher) that any current left ear hearing loss disability and/or tinnitus is causally related to service or any incident of service, including exposure to acoustic trauma or a residual of the accident during service. If it is determined that there is another likely etiology for any left ear hearing loss or tinnitus found, that should be stated. The VA examiner is asked to comment on the clinical significance of the audiometric findings recorded in the May 1959 VA audiogram, within a year of discharge from service, noting the conversion from ASA standards to ISO-ANSI. The examiner should note that the absence of in-service evidence of a hearing disability or tinnitus during service is not always fatal to a service connection claim. A rationale for the requested opinion shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Schedule the Veteran for VA examination to determine the effects of his service-connected disabilities (dental, neurologic, and psychiatric) on his ability to maintain employment consistent with his education and occupational experience. The claims file and a complete copy of this Remand must be made available to the VA examiner for review in conjunction with the employment examination. All necessary special studies or tests are to be accomplished. The VA examiner must elicit from the Veteran and record for clinical purposes a full work and educational history. The examiner should also record and consider the Veteran's statements regarding how his disorders combine to affect his employability. Based on a review of the case and the claims file, the VA examiner must provide an opinion as to whether the Veteran's service-connected disabilities collectively preclude him from securing and following substantially gainful employment consistent with his education and occupational experience. All opinions must be accompanied by a sufficiently thorough reasons and bases, and should specifically consider and discuss the Veteran's statements regarding the impact of his disabilities on his ability to maintain employment. If the examiner is unable to provide an opinion without resorting to speculation, a reasons and basis must be provided as to why such an opinion cannot be provided. Examples of such a reasons and basis include, but are not limited to, limitations in the examiner's training or unavailability of pertinent evidence. 4. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with an appropriate Supplemental Statement of the Case, to include the appropriate laws and regulations, and should be given an opportunity to respond. 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). _________________________________________________ MICHAEL A. HERMAN 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).