Citation Nr: 1317633 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 13-03 724 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a lumbar spine disorder. REPRESENTATION Appellant represented by: Fleet Reserve Association WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active military service from November 1948 to September 1969. This matter comes to the Board of Veterans' Appeals (Board) from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine, that, in pertinent part, denied the Veteran's claims for service connection for arthritis and bilateral hearing loss. He submitted a timely notice of disagreement as to this determination in June 2012, and asserted that he had cold injuries due to a 1949 incident in service. In a January 2013 rating decision, the RO granted service connection for residuals of cold injuries to the Veteran's bilateral hands and feet. In April 2013, the Veteran, sitting at the RO, testified during a hearing conducted via videoconference with the undersigned Veterans Law Judge, sitting at the Board's main office in Washington, D.C. During his hearing, the Veteran testified to experiencing nightmares, panic attacks, and claustrophobia, related to a 1949 incident in service during which the ship to which he was assigned ran aground in frigid waters off the coast of Labrador. See Board hearing transcript at pages 12-13. The matter of entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD) has, thus, been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 seeks service connection for bilateral hearing loss that he asserts is due to exposure to acoustic trauma during his military service aboard the USS SIMON NEWCOMB, a minesweeper, including when it ran aground during a harsh storm in 1949 near Labrador. He testified that his bunk was close to engineering space, and near diesel engines, and he worked without hearing protection in areas in which teletype machines were used. See Board hearing transcript at age 2. The Veteran said he performed clerical duties in a repair shop in his first tour that was very noisy and experienced ringing in his ears. Id. at 8. He reported that, in approximately 1991, his wife noticed his difficulty hearing conversational speech, although he noticed the difficulty earlier but did not think much of it. Id. at 9. Hearing loss disability is defined by regulation. 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 (Hz) is 40 decibels (db) or greater; or 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 (2012). In Hensley v. Brown, 5 Vet. App. 155 (1993), the United States Court of Appeals for Veterans Claims (Court) stated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. Id. at 159. The Court explained that, when audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, the veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is causally related to service. Id. at 160. The Court cited with approval a medical text, which states that the threshold for normal hearing is zero decibels to 20 decibels and higher threshold levels indicate some degree of hearing loss. Id. at 157. The Veteran is competent to describe his difficulty hearing over the years, which he can perceive, but hearing loss for the purpose of VA disability compensation is not a condition capable of lay observation because it relies upon audiometric testing. Savage v. Gober, 10 Vet. App. 488 (1997), Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Initially, the Board notes that, in October 2012, the RO conceded the Veteran's exposure to acoustic trauma while serving aboard the USS SIMON NEWCOMB. The Board has no reason to doubt the RO's conclusion. When examined for enlistment in 1948, a whisper voice test did not reflect hearing difficulty and the Veteran was found qualified for active service. Service treatment records show, on audiological evaluation in October 1963, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15(30) 15(25) 15(25) 15(20) LEFT 15(30) 15(25) 15(25) 15(20) (NOTE: Prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Those are the figures on the left in 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.) When examined for separation in July 1969, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 10 10 LEFT 15 10 20 25 In October 2011, a VA audiology examiner noted that available audiological data included results of a whisper test that failed to yield any frequency specific thresholds. The examiner stated that testing performed in 1963 documented hearing to be "within normal limits" and, audiological testing at separation also indicated that the Veteran's hearing was normal, with no clinically significant thresholds. The VA audiologist noted that hearing loss related to noise was not considered progressive in nature. The examiner opined that, with normal thresholds at discharge, no significant noise within service (by the Veteran's report), and with the hearing loss present within the past 10 years (by the Veteran's report), it was less likely than not that the Veteran's hearing loss was related to noise exposure incurred while performing his daily duties in service. In an October 2012 VA medical report, a VA audiologist opined that, while the Veteran brought forth evidence regarding noise exposure in service, "the primary evidence still does not support hearing loss incurred during [his] time in service." The audiologist explained that hearing loss, as related to noise exposure, was not considered to be progressive in nature (i.e., does not worsen once the offending noise ceased). The incident in question occurred in 1949, audiological testing performed in 1963, 14 years after the USS SIMON NEWCOMB ran ashore, revealed the Veteran's hearing to be within normal limits, bilaterally. Testing performed in 1969 was also consistent with these findings. Thus, the VA audiologist opined that the Veteran's hearing loss was less likely than not related to his military experience or his service aboard a minesweeper. The October 2011 and October 2012 VA examiners reported that the Veteran's hearing was within normal limits in 1963. However, neither VA examiner explained the elevated pure tone levels shown on the Veteran's 1963 audiogram and the apparent shift in hearing capacity. It is unclear if the audiologists considered the findings after converting them from ASA to ISO-ANSI units. Further clarification is needed prior to appellate consideration of the Veteran's claim. The Veteran also seeks service connection for a lumbar spine disorder, diagnosed as degenerative disc disease, degenerative joint disease, and spondylolisthesis. He maintains that his lumbar spine disorder is related to his immersion in frigid water and subsequent exposure to cold weather conditions when he served aboard the USS SIMEON NEWCOMB that ran aground in August 1949 near Labrador. The Veteran testified that he was asleep in his bunk when the ship ran aground and his sleeping area was flooded with cold water. He struggled to climb through a small opening to escape and was numb when he was brought land. See Board hearing transcript at pages 4.5. The Veteran believed his arthritis was due to unrecorded injuries incurred when he was thrown from the ship into the frigid water and tossed among rocks. He first noticed back pain in 1991 and sought chiropractic treatment Service treatment records do not discuss a lumbar spine disorder and, when examined for discharge in July 1969, the Veteran's spine was normal. Private medical records dated in November 2009 include complaints of low back pain. Radiographic studies performed at that time show spondylolisthesis, borderline spinal stenosis, and findings consistent with osteoarthritis. According to a July 2012 record, after verifying the Veteran's service aboard the USS SIMON NEWCOMB, the RO considered requesting morning reports and/or a VA opinion regarding the Veteran's claim. Morning reports were not requested and the Board believes efforts should be made to determine if any exist regarding the Veteran. In November 2012, a VA examiner reported the Veteran's history of falling on the ice in the 1980s and back pain that started in 1991. In the 2000s, the Veteran was diagnosed with degenerative disc disease and degenerative joint disease. The examiner knew of no medical evidence that would support the contention that the Veteran's lumbar spine degenerative disc disease, degenerative joint disease, and spondylolisthesis would be caused by exposure to cold. The VA examiner commented that cold weather/water exposure did not cause these diagnosed spine conditions. However, the VA examiner does not appear to have considered the Veteran's report of being tossed and thrown among rocks along while immersed in frigid water. Further clarification of this medical opinion is needed prior to Board consideration of the Veteran's claim. Recent medical records from the VA medical center (VAMC) in Togus, Maine, dated since August 2011, should be obtained. Accordingly, the case is REMANDED for the following action: (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. Contact the National Personnel Records Center and any other appropriate federal agency, and request all morning reports regarding the Veteran's treatment for the period from August 9, 1949 to October 9, 1949. 2. Obtain all medical records regarding the Veteran's treatment at the VAMC in Togus, for the period from August 2011 to the present, and from any additional VA and non-VA medical provider identified by him. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) (West 2002 & Supp. 2012) and 38 C.F.R. § 3.159(e) (2012). 3. After accomplishing the development requested above, return the Veteran's claim file and a copy of this Remand to the VA examiner who provided the October 2012 audiological opinion (or another similarly qualified clinician). The examiner should review the file and is reminded that the Veteran's exposure to acoustic trauma is conceded. (A clinical evaluation should be scheduled only if deemed warranted by the examiner.) Then, the examiner is requested to clarify why pure tone findings in the Veteran's November 1963 service examination report are considered "within normal limits" (after the pure tone findings are properly converted from ASA to IOS-ANSI units). The examiner is further requested to address the apparent shift in the Veteran's audiogram findings from November 1963 to July 1969. 4. Return the Veteran's claim file and a copy of this Remand to a VA neurosurgeon, orthopedic surgeon, or other similarly qualified physician. The examiner should review the file and is reminded that the Veteran's immersion in frigid water and subsequent exposure to cold weather conditions while aboard the USS SIMEON NEWCOMB in 1949 is conceded. (A clinical evaluation should be scheduled only if deemed warranted by the examiner.) Then, the examiner is requested to address the following. a. For any low back disorder diagnosed, the examining physician is requested to render an opinion as to whether it is at least as likely as not (a 50 percent or higher degree of probability) that the disorder had its clinical onset during the Veteran's period of service, or is it otherwise related to such period of service. b. All opinions and conclusions expressed must be supported by a complete rationale. The examiner should reconcile any opinions with the service treatment records, post-service medical evidence, and lay statements of the Veteran, to include his competent reports of symptomatology during and after service and report of immersion in frigid water and being thrown around rocks near Labrador in 1949. 5. After completion of the above, review the expanded record and readjudicate the issues of entitlement to service connection for bilateral hearing loss and a lumbar spine disorder. If any of the benefits sought are not granted in full, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). 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). _________________________________________________ ERIC S. LEBOFF 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).