Citation Nr: 1317728	
Decision Date: 05/31/13    Archive Date: 06/06/13

DOCKET NO.  09-18 093	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

J. Schulman, Associate Counsel



INTRODUCTION

The Veteran, who is the appellant in this case, had active service from August 1965 to June 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an June 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection.  The Veteran appealed the denial of service connection on this decision, and the matter is now before the Board. 
 
A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal that are not already of record.

The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC.  


REMAND

Service Connection for Bilateral Hearing Loss and Tinnitus

The Veteran, who served in the US Air Force, is claiming entitlement to service connection for bilateral hearing loss and tinnitus.  Specifically the Veteran contends that exposure to loud noises during service constituted acoustic trauma and led to his current bilateral sensorineural hearing loss and tinnitus.

Service connection may be granted for disability or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012).  Service connection may also 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 addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as other organic disease of the nervous system (which VA has determined includes sensorineural hearing loss), become manifest to a degree of 10 percent or more within one year after the date of separation from 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.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012).  

The Veteran has been diagnosed with a "chronic disease" of other organic disease of the nervous system (sensorineural hearing loss) listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies to the claim of service connection for bilateral hearing loss.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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.  With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection.  38 C.F.R. § 3.303(b).

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the U.S. Court of Appeals for Veterans Claims (Court) provided further guidance directing that VA must provide a medical examination when there is: (1) competent evidence of a current disability or persistent recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with a veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA Secretary to make a decision on the claim.

After reviewing the entire claims file, the Board finds that a VA examination and medical opinion are needed in this case.  VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim.  See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  

On the question of current disability, the evidence shows that there is competent evidence of current disabilities of  hearing loss and tinnitus that meet the criteria for VA purposes.  38 C.F.R. § 3.385 (2012); Charles v. Principi, 16 Vet. App. 370 (2002) (stating that tinnitus is the type of disorder associated with symptoms capable of lay observation).  On VA audiometric evaluation in March 2008, the Veteran was diagnosed with bilateral sensorineural hearing loss.  Audiological evaluation showed pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
35
50
65
85
LEFT
35
35
50
70
90

Speech audiometry revealed speech recognition ability of 92 percent in both ears, and the Veteran endorsed tinnitus.  

On the question of in-service injury, disease, or event, the Veteran has reported that he was exposed to loud noises during service.  The Veteran's primary military occupational specialty was that of "administrative specialist."  He reported that his in-service duties included distributing documents throughout areas where he was subjected to loud noises.  These included machine shops, engine shops, and the "test cell," a facility used to test jet engines.  Additionally, the Veteran endorsed being present at live-fire test range for one week, once a year, and being taken to an "alert pad" where he and five other airmen removed ice and snow from the wheels of B-52 aircraft while other aircraft took-off nearby. 


The service treatment records do not include an enlistment examination, and it is unavailable for review.  The Board will not hold missing service records against the Veteran, in particular not for the purposes of considering the need for additional development or assistance under the VCAA.  When a veteran's records are lost or destroyed, VA has a heightened duty to assist, which includes searching for alternate records.  Washington v. Nicholson, 19 Vet. App. 362, 369-71 (2005); see also Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992).  VA has a heightened obligation to assist a veteran in the development of the claim.  O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992).

On service separation examination in April 1969, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
6000
RIGHT
10
0
0
5
5
5
LEFT
5
0
0
5
15
25

Presuming the condition of the Veteran's hearing was sound on enlistment, the foregoing audiometric data shows some change in the Veteran's hearing acuity during service, although the thresholds reflect hearing during service in both ears that is still within the normal range.  See Hensley  v. Brown, 5 Vet. App. 155, 157 (1993) (citing to medical treatise that the threshold for normal hearing is from zero to 20 dB decibels). 

The evidence does not show that the Veteran experienced any symptoms of tinnitus in service, chronic symptoms of hearing loss during service, any tinnitus for many years after service separation, or continuous symptoms of hearing loss after service.  The evidence shows that after service in January 1970 the Veteran filed a claim for service connection for other disorders, but did not claim or mention hearing loss or tinnitus.  A VA examination in February 1970 reflects findings of normal hears, no hearing loss, and normal nervous system.  The Veteran first filed a claim for service connection for hearing loss and tinnitus in March 2008.  

Although the Veteran did not experience symptoms of hearing loss or tinnitus during service or for many years after service, the Court has indicated 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.  Hensley, 5 Vet. App. 155; see also 38 C.F.R. § 3.303(d) (service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service).  

The record before the Board includes competent evidence of current sensorineural hearing loss and tinnitus, evidence of the event of some noise exposure during service with some threshold changes during service, and the Veteran's assertions that the current hearing loss and tinnitus may be associated with the in-service noise exposure.  The record does not reflect competent medical evidence on the question of relationship of current bilateral hearing loss and tinnitus to service, specifically to the noise exposure during service.  For these reasons, the Board finds that remand is warranted for a medical opinion on the questions of whether current hearing loss and tinnitus disabilities are related to the noise exposure during service.  McLendon, 20 Vet. App. 79.  

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a VA audiology examination for opinions to assist in determining the likely etiology of his bilateral hearing loss and tinnitus.  The relevant documents in the claims file should be made available to the VA examiner.  The examiner is to review all of the evidence of record; should assume that the Veteran's accounts of noise exposure in service are accurate, including exposures to noises in machine shops, engine shops, a jet engine test cell, live-fire test range, and at an alert pad while aircraft took off nearby.  The examiner should also assume that the Veteran did not experience any symptoms of tinnitus in service or for many years after service separation; and that the Veteran did not experience chronic symptoms of hearing loss during service or continuous symptoms of hearing loss after service until years after service.  Taking such facts into account, as well as any evidence or findings of record the examiner finds significant, the examiner should offer the following opinions:
 
a.  Is it at least as likely as not (i.e., to at least a 50-50 degree of probability) that the Veteran's in-service change in hearing thresholds, although still within normal limits, represents onset of the current sensorineural hearing loss?  

b.  Is it at least as likely as not (i.e., to at least a 50-50 degree of probability) that the Veteran's current bilateral hearing loss is causally or etiologically related to the noise exposure during service? 

c.  Is it at least as likely as not (i.e., to at least a 50-50 degree of probability) that the Veteran's current tinnitus is causally or etiologically related to the noise exposure during service?

Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but that the medical evidence for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it.  All opinions are to be accompanied by a rationale consistent with the evidence of record.  If the requested medical opinion cannot be given, the examiner should state the reason(s) why.  

2.  After completing all indicated development, the RO should readjudicate the claims in light of all the evidence of record.  If any benefit sought on appeal remains denied, a Supplemental Statement of the Case should be furnished to the Veteran and representative and they should be afforded a reasonable opportunity response.  

The Veteran 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 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).



_________________________________________________
J. PARKER
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).