Citation Nr: 1313814	
Decision Date: 04/25/13    Archive Date: 05/03/13

DOCKET NO.  11-00 332	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

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

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

3.  Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

M. Peters, Associate Counsel



INTRODUCTION

The Veteran had active duty service from February 1970 to February 1972 and from December 1990 to May 1991.  He had additional service in the Texas Army National Guard.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied service connection for hearing loss and tinnitus.  The Veteran timely appealed that decision.

The Veteran initially requested a hearing before a Veterans Law Judge in his December 2010 substantive appeal, VA Form 9.  However, in a January 2011 correspondence, the Veteran withdrew his request for a hearing.  The Board therefore proceeds to adjudicate this case on the evidence of record and without a benefit of hearing, as requested by the Veteran.

The issues of service connection for right ear hearing loss and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

The Veteran has left ear hearing loss that had its onset during active military service.


CONCLUSION OF LAW

The Veteran's left ear hearing loss was incurred in active military service.  38 U.S.C.A. §§ 1110, 1111 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.385 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012).  

Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. 

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, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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 (2012).  

A Veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service, except for any disease or injury noted at the time of enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before enrollment and was not aggravated by such service.  38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b). 

The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions."  Id. at (b)(1); 38 U.S.C.A. §§ 1111, 1137.  

Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and a chronic disease, such as sensorineural hearing loss, becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012).

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word "chronic."  When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b). 

Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d). 

In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  "[L]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").  

The Board notes that the Veteran's second period of active service began in December 1990, and specifically on December 6, 1990.  There is no entrance examination of record for the Veteran's second period of service.  Thus, the Board finds that the Veteran is presumed to have been in sound condition with respect to his hearing for his second period of active service.  See 38 U.S.C.A. § 1111.

Five days later, on December 11, 1990, the Veteran was given an audiologic examination, which revealed the following results:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
10
15
20
LEFT
10
10
10
20
50

The Veteran was given a hearing loss profile of H2, and was noted that he was routinely exposed to hazardous noise.  The noted 50 decibels of loss in the left ear at 4000 Hz on the December 11, 1990 audiogram reveals that the Veteran has a noted hearing loss in his left ear during active service as well as the diagnosis of hearing loss regarding the profile.

The fact that left ear hearing loss was shown only five days into the Veteran's second period of active service gives rise to the question of whether his left ear hearing loss preexisted that period of service.  However, the high burden of clear and unmistakable evidence is required to rebut the presumption of soundness.  In this case, the evidence is not clear and unmistakable that left ear hearing loss preexisted the second period of active service; thus, the presumption of soundness is not rebutted.

The evidence shows that the Veteran has currently been diagnosed with sensorineural hearing loss of the left ear in his most recent VA examination in July 2010.  As noted previously, sensorineural hearing loss is considered a chronic disease under 38 C.F.R. § 3.309(a) as an "other organic disease of the nervous system."  The evidence also shows that the Veteran's left ear hearing loss continued during service as a May 1991 audiogram again shows 50 decibels of loss at 4000 Hz.  This information and evidence tends to show that the Veteran's left ear hearing loss was chronic during service.  Because the left ear hearing loss was chronic during service, any subsequent manifestation, no matter how remote, is service connected, unless clearly attributable to an intercurrent cause.  A showing of continuity of symptomatology is not necessary.  Here, there is no intercurrent cause to which the Veteran's current left ear hearing loss can be clearly attributed.  Therefore, service connection is warranted for left ear hearing loss.  See 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.385.


ORDER

Service connection for left ear hearing loss is granted.


REMAND

With regard to the Veteran's right ear hearing loss and tinnitus claims, unlike his left ear hearing loss, the Board notes that the Veteran's right ear does not demonstrate a hearing loss disability under 38 C.F.R. § 3.385 during either period of service or within one year of separation for either period of service at this time.  However, the Veteran is currently diagnosed with right ear sensorineural hearing loss.

The Veteran underwent a VA audiologic examination in July 2010, at which time the examiner opined that the Veteran's hearing loss was not related to service because there was no hearing loss evident from his first period of service and no changes in hearing were noted during his second period of service; the examiner additionally noted that there were no "significant threshold shifts . . . while on active duty" with regards to the Veteran's audiometric data.

The Board notes the following audiometric data which is of record:

February 1970 (Enlistment into First Period of Active Service):




HERTZ



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

January 1972 (Separation from First Period of Active Service):




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
-
0

July 1972 (Retention Examination for Texas Army National Guard):




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
15
-
25

November 1987 (Enlistment Examination for Army National Guard):




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
10
15
15


December 11, 1990 (Audiogram obtained during Second Period of Active Service):




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
10
15
20

Finally, May 7, 1991 (Three Weeks Prior to Separation from Second Period of Active Service):




HERTZ



500
1000
2000
3000
4000
RIGHT
25
15
10
10
10

After reviewing this data, the Board notes that the July 2010 examiner's opinion does not adequately discuss the available audiometric data.  First, the Board notes that while correct that there does not appear to be a significant threshold shift-or really any loss at all-during the first period of service, the Board finds it odd that all of the Veteran's audiometric readings were 0 decibels on separation.

Regardless, there does appear to be some objective loss at the 1000 and 2000 Hz levels from the February 1970 test compared to the January 1972 test.  Thus, the examiner's opinion incorrectly notes that there is no loss at all during the first period of active service.  Moreover, the examiner's opinion does not address the significant changes demonstrated in the July 1972 test, approximately 5 months after discharge from service and within one year of military service separation.  

Finally, the examiner's opinion again does not appreciate the objective change demonstrated at the 500 Hz level between the December 1990 and May 1991 tests during the Veteran's second period of service.  Moreover, under Hensley, as noted above, such a 25 decibel loss at the 500 Hz threshold in May 1991 demonstrates some degree of hearing loss during military service in the right ear.

Accordingly, for the above reasons and deficiencies, the Board finds that a new VA examination for the Veteran's hearing loss and tinnitus is necessary at this time; such should be afforded to the Veteran on remand.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). 

Ongoing private and VA treatment records should also be obtained as it appears that the Veteran receives regular treatment at the VA Medical Centers (VAMCs) in Shreveport, Louisiana, and Dallas, Texas.  See 38 U.S.C.A. § 5103A(b), (c) (West 2002); 38 C.F.R. § 3.159(b) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). 

Accordingly, these issues are REMANDED for the following actions:

1.  Obtain any relevant VA treatment records from the Dallas and Shreveport VAMCs, or any other VA medical facilities that may have treated the Veteran, since August 2010 and associate those documents with the claims file.

2.  Ask the Veteran to identify any private treatment that he may have had for his right ear hearing loss and tinnitus, which are not already of record.  After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file.  If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf.

3.  Thereafter, schedule the Veteran for a VA audiological examination in order to determine the nature and etiology of his right ear hearing loss and tinnitus.  The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination.  All tests deemed necessary should be conducted.

After review of the claims file and examination of the Veteran, the VA audiologist should opine whether the Veteran's right ear hearing loss is more likely, less likely, or at least as likely as not (50 percent or greater probability) the result of military service, to include any noise exposure therein.  

The examiner should specifically discuss the audiologic results noted above in the remand section of this opinion and address the deficiencies noted by the Board with regards to the July 2010 examination report.  

The audiologist should also state whether such noted right ear hearing loss in May 1991 are the initial manifestations of current right ear hearing loss, and if so, whether such has been chronic and continuous since discharge therefrom.

The Board notes that if the examiner does not find that the Veteran's right ear hearing loss is related to his first period of service, the examiner must take as conclusive fact that the Veteran's right ear hearing was sound on entrance into service in December 1990.

The examiner should also opine whether: 

(a) Whether his tinnitus is more likely, less likely or at least as likely as not due to his military service, to include any noise exposure therein;
(b) Whether his right ear hearing loss is more likely, less likely, or at least as likely as not due to his left ear hearing loss;
(c) Whether his right ear hearing loss is aggravated (i.e., permanently worsened beyond the normal progression of that disease) by his left ear hearing loss; 
(d) Whether his tinnitus is more likely, less likely, or at least as likely as not due to his left ear hearing loss; and,
(e) Whether his tinnitus is aggravated by his left ear hearing loss. 

All opinions must be accompanied by an explanation.  If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided.  

4.  Following the above development, the originating agency should review the claims file and re-adjudicate the Veteran's claims of service connection for right ear hearing loss and tinnitus.  If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond before the case is returned to the Board.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  This case must be afforded expeditious treatment.

The law requires that all claims that are remanded by the Board 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).



______________________________________________
RYAN T. KESSEL
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs