Citation Nr: 1316489 Decision Date: 05/20/13 Archive Date: 05/29/13 DOCKET NO. 06-16 358 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to a total disability rating based on individual unemployability for the period prior to May 1, 2008. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran served on active duty from June 1960 to June 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office in Detroit, Michigan (RO). During the pendency of this appeal, in an August 2008 rating decision, the RO assigned a 100 percent evaluation for the Veteran's service-connected adenocarcinoma of the prostate, effective May 1, 2008. As such, the Veteran's combined evaluation has remained 100 percent since May 1, 2008. Accordingly, the Board's review of the issue of entitlement to a total disability rating based on individual unemployability (TDIU) will be limited to the period prior to May 1, 2008. Accordingly, such issue on the title page of this decision has been amended to reflect these facts. In December 2010 and August 2012, the Board remanded the case for additional development. While there has been substantial compliance with the remand directives, further development is necessary regarding the issue of entitlement to a TDIU for the period prior to May 1, 2008. The issue of entitlement to a TDIU for the period prior to May 1, 2008 is remanded to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. The Veteran's current bilateral hearing loss is related to his active duty service. 2. The Veteran's current tinnitus is related to his active duty service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012). 2. Tinnitus was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issues of entitlement to service connection for bilateral hearing loss and entitlement to service connection for tinnitus. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326 (2012). This is so because the Board is taking action favorable to the Veteran by granting such claims. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49, 747 (1992). Service Connection Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Hearing impairment is considered to be a disability when the auditory threshold level 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. 38 CFR § 3.385. The requirements for service connection for hearing loss need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted. A claimant is not prevented from establishing service connection on the basis of post-service evidence of hearing loss related to service when there were no audiometric scores reported at separation from service. Ledford v. Derwinski, 3 Vet App. 87, 89 (1992). Service connection is not precluded simply because the regulation's requirements were first met after service. Bilateral Hearing Loss and Tinnitus The Veteran contends that his current bilateral hearing loss and tinnitus disorders had their onset during service due to noise exposure. Specifically, in a May 2006 statement, the Veteran reported that while serving in Vietnam from January 1967 to February 1968, he was exposed to noise from small arms, mortar, and artillery fire, as well as helicopter noise. He also stated that he experienced decrease in hearing acuity and ringing in his ears for many years since he returned from Vietnam. In this regard, the Veteran's Form DD 214 notes his service in Vietnam from January 1967 to February 1968, and his service personnel records demonstrate his military occupational specialty as a chief clerk during such service. The Veteran's service treatment records include the report of a June 1960 induction physical examination, which was negative for complaints, treatment, or a diagnosis of any kind of hearing disorder. The examination report demonstrates that the Veteran's hearing, bilaterally, was evaluated as normal upon entry into service, as shown by the results of the whispered voice test, which reveals 15/15. The report of a June 1966 reenlistment physical examination was negative for a diagnosis of any kind of hearing disorder; the report of medical history is not of record. The examination report demonstrates the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) -5 (5) -5 (5) 0 (10) 15 (20) LEFT -5 (10) -5 (5) -5 (5) 5 (15) 25(30) (Note: The June 1966 audiometric test results were reported in standards set forth by the American Standards Association (ASA). The ASA results are the figures on the left of each column and are not in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses.). The report of a June 1972 separation physical examination was negative for a diagnosis of any kind of hearing disorder; the report of medical history is not of record. The examination report demonstrates that the Veteran's hearing, bilaterally, was evaluated as normal upon discharge from service, as shown by the results of the whispered voice test, which reveals 15/15. The Veteran was afforded a VA examination in June 2005, during which he reported a history of post-service occupational noise exposure due to working in the woods, to include cutting wood and construction. He further reported that his current tinnitus had its onset "sometime" ago. Upon examination and review of the Veteran's claims files, the examiner diagnosed moderate sensorineural hearing loss in the right ear, moderate to severe sensorineural hearing loss in the left ear, and bilateral tinnitus. The examiner opined that without any confirmatory evidence of hearing loss or tinnitus at discharge or within one year of discharge from service, it was mere conjecture to attribute the causation of the Veteran's current hearing impairment and tinnitus to his noise exposure during service. In providing the opinion, the examiner explained that the absence of service treatment records demonstrating hearing loss and tinnitus precluded him from attributing the etiology of the Veteran's current hearing loss and tinnitus to service versus other non-military causes, such as post-service occupational noise exposure. The examiner concluded that military noise exposure could not be conceded based on the fact that the Veteran's service in Vietnam was in a non-combat role as a clerk. The Veteran was afforded a VA examination in January 2011, during which he reported a history of military noise exposure, as well as post-service occupational and recreational noise exposure due to logging and seasonal hunting, respectively. He further reported that his current tinnitus had its onset during service. Upon examination and review of the Veteran's claims files, the examiner diagnosed mild to severe sensorineural bilateral hearing loss and tinnitus. The examiner opined that the Veteran's current bilateral hearing loss and tinnitus were "less likely than not" caused by or a result of his military service. In providing the opinion, the examiner noted that no new or relevant information was provided upon examination to show evidence of acoustic trauma during service. The examiner reiterated the June 2005 VA examiner's conclusion that military noise exposure could not be conceded based on the fact that the Veteran's service in Vietnam was in a non-combat role as a clerk. The examiner further noted that the absence of service treatment records demonstrating hearing loss and tinnitus precluded him from attributing the etiology of the Veteran's current hearing loss and tinnitus to service versus other non-military causes. The Veteran was afforded a VA examination in September 2012, during which he reported that his tinnitus had been present since the 1960's, and as per the examiner's report, recalled several blast explosions where tinnitus would later be present. The Veteran described his tinnitus as constant which sounded like wind rushing, a telephone ringing, and "a guy beating on an anvil." Upon examination and review of the Veteran's claims files, the examiner diagnosed bilateral sensorineural hearing loss and tinnitus. The examiner opined that the Veteran's hearing loss was "at least as likely as not" caused by or a result of his service. In providing the opinion, the examiner noted that the Veteran's 1960 induction examination report demonstrates a whispered voice test, which suggested that the Veteran's hearing was within normal limits. The examiner noted that the 1966 audiometric examination report shows a slight decrease at 4000 Hertz in the left ear, but overall, hearing was within normal limits, bilaterally. The examiner noted the 1972 separation examination report indicates that a whispered voice test was performed, and explained that such a test did not test frequencies individually, thus, a high frequency hearing loss could be missed. The examiner noted the Veteran's post-service occupational noise exposure due to cutting down trees, serving as a telephone lineman, and working in a casino as a security guard. The examiner concluded that while it was possible that the Veteran's occupational noise exposure contributed to his overall hearing loss, because there was no way to say what his thresholds were at separation in comparison to his reenlistment audiogram, it was "as likely as not" that the Veteran's hearing loss was due to noise exposure in service. Regarding the Veteran's current tinnitus, the examiner indicated that such disorder was "at least as likely as not" caused by or a result of military noise exposure. In proving the opinion, the examiner noted that the Veteran had hearing loss which was "as likely as not" related to noise exposure in service, and explained that tinnitus was a symptom associated with hearing loss. The examiner concluded that because tinnitus was due to noise exposure, it could also be said that the Veteran's tinnitus was related to such in-service exposure. The Board finds that the evidence of record supports a finding of service connection for bilateral hearing loss and tinnitus. Post-service VA examination reports dated in June 2005, January 2011, and September 2012 indicate current diagnoses of a bilateral hearing loss disability for VA purposes. 38 C.F.R. § 3.385. These examination reports also show current diagnoses of tinnitus. Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). The June 2005 VA examiner determined that it was mere conjecture to attribute the causation of the Veteran's current hearing impairment and tinnitus to his noise exposure during service; however, the examiner failed to provide an adequate rationale for such opinion. Specifically, the examiner concluded that military noise exposure could not be conceded based on the fact that the Veteran's service in Vietnam was in a non-combat role as a clerk. The examiner, however, failed to acknowledge the lay assertions of record regarding the Veteran's in-service noise exposure and ringing in his ears since he returned from Vietnam. Such statements, as detailed above, are competent evidence regarding his in-service noise exposure and observable symptoms that he experienced ever since military service. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Charles v. Principi, 16 Vet. App. 370 (2002). Moreover, the examiner in significant part, based his opinion on the lack of service treatment records documenting hearing loss or tinnitus. Although the Veteran's service treatment records are silent for any complaints, treatment or diagnoses of bilateral hearing loss or tinnitus, the Board cannot reject lay evidence simply because it is not accompanied by contemporaneous medical evidence. See Buchanan, 451 F.3d 1331 (Fed. Cir. 2006); Jandreau, 492 F.3d 1371 (Fed. Cir. 2007). Finally, regarding hearing loss, the examiner noted a lack of confirmatory evidence of such disorder upon the Veteran's discharge; however, service connection is not precluded simply because the regulation's requirements were first met after service. Ledford, 3 Vet App. 87, 89 (1992); see also Hensley v. Brown, 5 Vet. App. 155 (1993). Accordingly, the June 2005 VA examination report is of no probative value. The January 2011 VA examiner offered a negative opinion, indicating that the Veteran's current bilateral hearing loss and tinnitus were "less likely than not" related to his service; however, the examiner failed to provide an adequate rationale for such opinion. The examiner stated that no new or relevant information was provided upon examination to show evidence of acoustic trauma during service. The examiner reiterated the June 2005 VA examiner's conclusion that military noise exposure could not be conceded based on the fact that the Veteran's service in Vietnam was in a non-combat role as a clerk, and likewise, failed to consider the Veteran's competent lay statements of record regarding his in-service noise exposure and ringing in his ears since returning from Vietnam. Moreover, similar to the June 2005 VA examiner, the January 2011 VA examiner also relied on an absence of service treatment records documenting hearing loss or tinnitus. Accordingly, the January 2011 VA examination report is of no probative value. The September 2012 VA examiner noted the Veteran's past history of noise exposure in service, as well as his post-service occupational and recreational noise exposure. The examiner provided a thorough discussion of the Veteran's service treatment records. The examiner concluded that while it was possible that the Veteran's occupational noise exposure contributed to his overall hearing loss, because there was no way to say what his thresholds were at discharge in comparison to his induction audiogram, it was "as likely as not" that the Veteran's current hearing loss was due to noise exposure in service. In addition, the examiner noted the Veteran's complaints of tinnitus since the 1960's, and noted that the Veteran recalled several blast explosions which tinnitus would result. The examiner determined that the Veteran's current tinnitus was due to the in-service noise exposure, which resulted in the Veteran's current bilateral hearing loss. The opinion considered the Veteran's lay statements regarding his exposure to noise during service, as well his post-service occupational noise exposure. Further, the opinion included an explanation of the medical principles that support the opinion that the Veteran's current hearing loss is the result of noise exposure during his service, noting that the Veteran's service-connected tinnitus was also due to the same noise exposure. The Board finds the September 2012 VA opinion highly probative evidence. The opinion included a rationale and discussion of all of the pertinent lay evidence, as well as a discussion of the medical principles underlying the opinion. Moreover, the history the Veteran provided about noise exposure in service, where he was exposed to noise from small arms, mortar, and artillery fire, as well as helicopter noise while serving in Vietnam from January 1967 to February 1968, is consistent, competent, and credible. See Jandreau, 492 F.3d at 1376-77. Accordingly, service connection for bilateral hearing loss and tinnitus is warranted. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. REMAND As noted in the most recent Board remand, the issue of entitlement to a TDIU is inextricably intertwined with the pending claims for entitlement to service connection. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Service connection for bilateral hearing loss and tinnitus are granted herein, thus, the TDIU claim will be addressed below. Generally, VA will award when the evidence shows that a veteran is precluded, by reason of his service-connected disability or disabilities, from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). TDIU benefits are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retention of substantially gainful employment. 38 C.F.R. § 4.16(a). The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran can perform the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service-connected, and prior unemployability status must be disregarded when determining whether a veteran currently is unemployable. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A total disability rating may be assigned, where the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). During the course of treatment for several service-connected disorders, the Veteran reported that he stopped working in 2004 due to multiple health problems, to include problems with his heart and his posttraumatic stress disorder. In this regard, as of December 3, 2004, service connection is in effect for adenocarcinoma of the prostate, rated as 60 percent disabling; angina and coronary artery disease, rated as 30 percent disabling; and posttraumatic stress disorder, rated as 30 percent disabling. Although ratings have not been assigned for the service-connected bilateral hearing loss and tinnitus, the aforementioned assigned ratings meet the schedular percentage requirements. See Id. Thus, on remand, a VA opinion that addresses the effect of the Veteran's service-connected disabilities on his ability to work is necessary. Friscia v. Brown, 7 Vet. App. 294 (1994). As discussed above, entitlement to a TDIU will be limited to the period prior to May 1, 2008, as the RO assigned a 100 percent evaluation for the Veteran's adenocarcinoma of the prostate effective on such date, and a TDIU is only available when "the schedular rating is less than total." See 38 C.F.R. § 4.16(a). Thus, the VA examiner must consider the effect of the Veteran's service-connected disabilities on his ability to work for the period prior to May 1, 2008. Additionally, clarification from the Veteran is needed with respect to his post-service employment history. As such, the Board finds that the RO must attempt to obtain a detailed, post-service work history from the Veteran. Accordingly, the case is remanded for the following actions: 1. The RO must provide the Veteran a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, for him to complete, with instructions to return the form to the RO, for the purpose of obtaining a detailed, post-service work history. 2. A VA examiner must provide an opinion on the effects of the Veteran's service-connected adenocarcinoma of the prostate, angina and coronary artery disease, posttraumatic stress disorder, bilateral hearing loss, and tinnitus on his ability to obtain and maintain employment consistent with his education and occupational experience, prior to May 1, 2008. The claims files and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims files and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Based on a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether the Veteran's service-connected disabilities, namely, adenocarcinoma of the prostate; angina and coronary artery disease; posttraumatic stress disorder; bilateral hearing loss; and tinnitus precluded him from securing and following substantially gainful employment consistent with his education and occupational experience prior to May 1, 2008. This opinion must be provided without consideration of his nonservice-connected disabilities, or age. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report must be typed. 3. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claim on appeal must be readjudicated. If the issue on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs