Citation Nr: 1313477	
Decision Date: 04/23/13    Archive Date: 05/03/13

DOCKET NO.  10-01 981	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to service connection for right ear hearing loss.

2.  Entitlement to an initial compensable rating for service-connected left ear hearing loss.


REPRESENTATION

Appellant represented by:	Tennessee Department of Veterans' Affairs


WITNESS AT HEARING ON APPEAL

Appellant




ATTORNEY FOR THE BOARD

John Kitlas, Counsel


INTRODUCTION

The Veteran served on active duty from January 1967 to January 1969.

This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

The Veteran provided testimony at a hearing before the undersigned Acting Veterans Law Judge (AVLJ) in March 2011.  A transcript of this hearing has been associated with the Veteran's VA claims folder.  Further, the Veteran submitted additional evidence at this hearing accompanied by a waiver of having this evidence initially adjudicated by the agency of original jurisdiction (AOJ) in accord with 38 C.F.R. § 20.1304 (2012).

For the reasons addressed in the REMAND portion of the decision below, the Board finds that further development is required with respect to the Veteran's claim for an initial compensable rating for service-connected hearing loss.  Accordingly, this claim is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

The competent and credible evidence of record reflects it is at least as likely as not that the Veteran's right ear hearing loss disability developed as a result of his active service.


CONCLUSION OF LAW

The criteria for a grant of service connection for hearing loss disability of the right ear are met.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board notes at the outset that VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  

In this case, and for the reasons stated below, the Board finds that service connection is warranted for the Veteran's right ear hearing loss.  As this represents a complete grant of the benefit sought on appeal regarding this claim, no further discussion of VA's duties to notify and assist is necessary as any deficiency has been rendered moot.

The Board notes that it has thoroughly reviewed the record in conjunction with this case.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence).  Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims.  See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant).  

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. § 5107(b).  When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant.  Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102.  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).  

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  

For the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 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.  Further, the Court has indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.  Hensley, 5 Vet. App. at 160.  

The Veteran essentially contends that he developed hearing loss in both ears as a result of in-service acoustic/noise trauma, and has provided details thereof.  He is competent, as a lay person, to describe such exposure.  Further, he is already service-connected for a hearing loss disability of the left ear based upon such exposure.

Inasmuch as specific medical testing is required to determine if one has a hearing loss disability as defined by 38 C.F.R. § 3.385, or evidence of hearing loss pursuant to Hensley, supra, the Board finds that competent medical evidence is required to diagnosed this disability.  Further, as detailed below, the record indicates that the Veteran's hearing loss disability of the right ear was first demonstrated years after his separation from service.  Therefore, competent medical evidence is required to determine whether the current disability is etiologically linked to service.

Here, nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion.  Consequently, his contentions cannot constitute competent medical evidence.  38 C.F.R. § 3.159(a)(1).

The Board observes that the evidence of record confirms the Veteran has a hearing loss disability of the right ear as defined by 38 C.F.R. § 3.385.  For example, an August 2009 VA audiological examination revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
Average
RIGHT
15
10
15
45
55
31.25
LEFT
15
15
40
65
80
50

Speech recognition scores were 80 percent for both ears.

The Board also observes that the Veteran's service treatment records do not indicate he had any such disability, or evidence of hearing loss pursuant to Hensley, supra, at the time of his entry into active duty.  Specifically, audiological evaluation conducted in conjunction with a September 1965 pre-induction examination revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
-5
5
5
--
5
LEFT
-5
5
5
--
5

Audiological evaluation conducted in conjunction with the Veteran's January 1967 induction examination revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
-5
-10
--
0
LEFT
5
-5
0
--
5

No audiological evaluation as conducted as part of the Veteran's October 1968 separation examination.  Whispered voice testing was conducted, which was 15/15 for both ears.  

The Board further notes that the results of private hearing evaluations conducted as part of the Veteran's post-service employment are of record beginning in February 1969.  The February 1969 evaluation indicated pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
6000
RIGHT
10
10
5
10
10
10
LEFT
10
10
5
15
30
30

As such, there was evidence of hearing loss for the left ear pursuant to Hensley, supra, but not the right.

There was also no indication of a hearing loss disability as defined by 38 C.F.R. § 3.385 for the right ear, or Hensley hearing loss, on the next employment evaluation from November 1970.  Specifically, this evaluation indicated pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
6000
RIGHT
5
5
5
5
10
10
LEFT
15
5
0
15
45
40

The results from the next employment evaluation in October 1974 showed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
6000
RIGHT
5
0
0
0
30
40
LEFT
5
0
0
35
50
45

As such, this appears to be the first indication of hearing loss for the right ear pursuant to Hensley, supra.  Thereafter, the next employment evaluation in January 1978 did show a hearing loss disability of the right ear pursuant to 38 C.F.R. § 3.385.  Specifically, pure tone thresholds, in decibels, was as follows:




HERTZ



500
1000
2000
3000
4000
6000
RIGHT
5
5
5
10
40
30
LEFT
5
5
5
55
50
50

All subsequent employment evaluations, which are noted through July 1993, contain either evidence of a hearing loss disability pursuant to 38 C.F.R. § 3.385 or Hensley hearing loss for both ears.

The Court has indicated that the absence of any medical records of a diagnosis or treatment for many years after service can serve as probative evidence against the claim.  See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (Affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.).  Nevertheless, the Board does find it significant that even though the February 1969 post-service, employment evaluation did not show hearing loss for the right ear pursuant to Hensley, supra, it did indicate a threshold shift demonstrating a decrease in hearing acuity from the time of the January 1967 induction examination.

In this case, there are competent medical opinions which both support and refute a finding that the Veteran's hearing loss disability of the right ear is etiologically linked to his active service.  For example, the August 2009 VA audio examiner found, in essence, that the left ear hearing loss was due to military service but not the right.  In support of this opinion, the examiner noted that it was clear from the pre-induction and induction audiograms that the Veteran had normal hearing upon entering military service; that no valid hearing test was performed upon separation from service; the whispered voice test was not frequency specific, ear specific, or calibrated for intensity, and was therefore not valid for ratings purposes.  Therefore, it was not known whether the Veteran had hearing loss upon leaving the military in January 1969.  However one month later in February 1969, a hearing test performed by his employer indicated mild hearing loss in the left ear, and the right ear had normal hearing.

Conversely, a March 2011 private audiologist's opinion noted the Veteran's account of military noise exposure; and that current testing showed, in part, speech discrimination scores of 88 percent for the right ear, and 82 percent for the left ear.  Based on the foregoing, the audiologist opined that it was at least as likely as not that the documented hearing loss had been contributed to by the Veteran's military service.

In short, there is evidence that the Veteran's hearing in the right ear decreased during his period of military service, based upon the results of audiological evaluation conducted as part of his January 1967 induction examination and that of the February 1969 post-service hearing test.  Granted, there was no evidence of hearing loss as defined by either 38 C.F.R. § 3.385 or Hensley, supra, until years after his separation from service.  Nevertheless, the results on file do indicate a threshold shift from the time of entry to separation from service.  Further, there does not appear to be any dispute as to his account of in-service noise exposure.  

The Board acknowledges that there are conflicting medical opinions from what is presumed to be two clinicians who are competent to render an opinion on this matter.  However, even though the August 2009 VA examiner did base her opinion on the post-service employment hearing results, she did not specifically address the threshold shift that was demonstrated from the time of the January 1967 induction examination to the February 1969 test.  Thus, these opinions are at least in equipoise.  In Alemany v. Brown, 9 Vet. App. 518 (1996), the Court held that in light of the benefit of the doubt provisions of 38 U.S.C.A. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology."  Further, in Gilbert, supra, the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  In Gilbert the Court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence.  Under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the appellant prevails.  See also 38 C.F.R. § 3.102.

Resolving all reasonable doubt in favor of the Veteran, the Board finds that the competent and credible evidence of record reflects it is at least as likely as not that the Veteran's right ear hearing loss disability developed as a result of his active service.  Therefore, service connection is warranted for this disability.



ORDER

Service connection for a hearing loss disability of the right ear is granted.


REMAND

Inasmuch as the Board has determined that service connection is warranted for the right ear hearing loss, the claim of entitlement to an initial compensable rating for left ear hearing loss now involves the appropriate rating for bilateral hearing loss.  The criteria for evaluating hearing disabilities are different when both ears are service connected as opposed to only one ear being service connected.  See 38 C.F.R. § 4.85(f).  As such, it would appear that a remand is required in order for this matter to be addressed in the first instance below.

The Board further finds that there are other matters which warrant a remand in this case.  For example, the March 2011 private audiologist's opinion included a copy of an audiogram conducted that same month.  However, the results are in graphical form only.  Further, it is not clear from this report whether the speech discrimination scores were conducted pursuant to the Maryland CNC test as mandated by 38 C.F.R. § 4.85(a).

In Kelly v. Brown, 7 Vet. App. 471 (1995), the Court determined that the Court, itself, could not interpret the results of an audiograph because interpretation required a factual finding, which is not the role of the Court in the first instance.  Kelly, 7 Vet. App. at 474.  The Board, however, is empowered to make factual findings in the first instance and to remand uninterpreted audiograms for interpretation.  As a result, the Board finds that clarification from the private audiologist who performed that March 2011 audiological testing is necessary, to include clarification of whether the Maryland CNC test was used during that examination.  See Savage v. Shinseki, 24 Vet. App. 259 (2010) (When a private examination report is "unclear" or "not suitable for rating purposes" and the information "reasonably contained in the report otherwise cannot be obtained," VA has a duty to ask the private examiner to clarify the report, request that the claimant obtain the necessary information to clarify the report, or explain why such clarification was not needed.)

The Board further notes that the Veteran indicated at the March 2011 Board hearing that his hearing loss had increased in severity since the last VA audio examination of August 2009.  See Transcript p. 4.  VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate.  VAOPGCPREC 11-95 (April 7, 1995); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1995); Green v. Derwinski, 1 Vet. App. 121, 124 (1991).  Consequently, the Board concludes that a contemporaneous examination is needed in order to adequately evaluate his current level of disability for his service-connected hearing loss.  See Allday v. Brown, 7 Vet. App. 517, 526 (1995) (Where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination - particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (When the medical evidence of record is insufficient, in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions.).  

Accordingly, the case is REMANDED for the following action:

1.  The AMC/RO should obtain the names and addresses of all medical care providers who have treated the Veteran for his hearing loss since August 2009.  After securing any necessary release, the AMC/RO should obtain those records not on file.

In particular, contact the private audiologist who performed the March 2011 audiological testing and request that he identify the speech discrimination test utilized during that hearing evaluation, especially insofar as whether it was done using the Maryland CNC.  Also ask that he preferably provide the pure tone threshold findings in numerical (not just graphical) form to better correlate these results with 38 C.F.R. § 4.85 in terms of the amount of hearing loss (threshold losses) in the specified frequencies of 1,000, 2,000, 3,000, and 4,000 Hz.

Since these records are not in the custody of a Federal department or agency, the attempts to obtain them are governed by 3.159(c)(1).  If, for whatever reason, this examiner is no longer available or does not respond to this request, make a notation of this in the record and notify the Veteran in accordance with 38 C.F.R. 
§ 3.159(e). 

2.  After obtaining any additional records to the extent possible, the Veteran should be afforded a new examination to evaluate the current nature and severity of his service-connected bilateral hearing loss.  The claims folder should be made available to the examiner for review before the examination.

3.  Thereafter, the AMC/RO should review the claims folder to ensure that the foregoing requested development has been completed.  In particular, the AMC/RO should review the examination report to ensure that it is responsive to and in compliance with the directives of this remand and if not, the AMC/RO should implement corrective procedures.  See Stegall v. West, 11 Vet. App. 268 (1998).

4.  After completing any additional development deemed necessary, the AMC/RO should readjudicate the issue on appeal in light of any additional evidence added to the records assembled for appellate review.  

If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC), which addresses all of the evidence obtained after the issuance of the December 2009 SOC, and provides an opportunity to respond.  The case should then be returned to the Board for further appellate consideration, if in order.  By this remand, the Board intimates no opinion as to any final outcome warranted.

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).




______________________________________________
M. N. HYLAND
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs