Citation Nr: 1317932	
Decision Date: 06/03/13    Archive Date: 06/11/13

DOCKET NO.  10-01 455	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

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

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

3.  Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Colorado Division of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

Thomas H. O'Shay, Counsel


INTRODUCTION

The Veteran had active service from November 1975 to August 1979.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.  The Veteran testified before the undersigned at a videoconference hearing held in July 2012.  He submitted additional evidence at that time, along with a waiver of initial RO consideration of that evidence.

The Board notes that the Veteran has raised issues concerning the proper rating assignable for his right knee disability, and concerning service connection for left knee and lower back disorders.  The record shows that those issues are currently under active consideration by the RO.

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


FINDINGS OF FACT

1.  The Veteran does not have right ear hearing loss for VA purposes.

2.  The Veteran's tinnitus originated in service.




CONCLUSIONS OF LAW

1.  The Veteran does not have right ear hearing loss that is the result of disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. 
§ 1131 (West 2002); 38 C.F.R. § 3.385 (2012).

2.  The Veteran's tinnitus is the result of disease or injury incurred in active military service.  38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.385 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Under the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations, VA is required to provide claimants with notice and assistance in substantiating a claim.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  Proper notice must inform the claimant of any information and evidence not in the record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002).  Notice should be provided to the claimant prior to the initial unfavorable decision on the claim.  Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). 

These notice requirements apply to all five elements of a service connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

As will be discussed in further detail below, service connection for tinnitus is warranted; consequently any notice or assistance deficiencies as to that claim are moot.  With respect to right ear hearing loss, the Veteran was properly notified in November 2008, prior to the initial unfavorable decision, of the evidence and information necessary to substantiate his claim and to establish a disability rating and effective date.

Concerning the duty to assist, the Veteran's service treatment records and a recent VA audiological examination have been obtained and considered, as well as private records identified by the veteran.  There is no indication of any pertinent, outstanding records.  The Board has reviewed the April 2009 examination report and finds that it is adequate for the purpose of adjudicating the right ear hearing loss claim.  The Veteran has indicated that he did not recall undergoing speech discrimination testing at the examination.  Given that the examination report does include the results of speech discrimination testing, and absent an allegation that the examiner did in fact fail to perform such testing, the Board finds that the examiner performed the testing recorded in the report.  The Board notes that the examination results are consistent with the results of private audiometric testing.

The Board notes that the Veteran at his hearing indicated that he believed he underwent a second VA examination at some point in 2011.  The record reflects that when VA last surveyed the Veteran's electronic Virtual VA records, no such examination report existed.  That survey did, however, reveal that his hearing was examined for treatment purposes in February 2010, and those records are on file.  Given the vagueness of his recollection of the date of the second examination, and in the absence of any indication in VA treatment records through 2012 of the existence of a 2011 VA compensation and pension examination, the Board finds that the Veteran likely was referring to the February 2010 evaluation when he expressed the belief he was examined in 2011.

In light of the above, the Board finds that VA has fulfilled its duties to notify and assist the Veteran in the current appeal.

Factual background

The Veteran's service treatment records show that audiometric testing at enlistment revealed pure tone thresholds, in decibels, to be as follows:







HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
5
NT
5
LEFT
10
10
5
NT
20


On a January 1977 reference audiogram, testing revealed pure tone thresholds, in decibels, to be as follows:





HERTZ



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

A December 1977 entry noted complaints of clogged ears, which were attributed to an upper respiratory infection.

An undated audiogram revealed pure tone thresholds, in decibels, to be as follows:




HERTZ



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


An August 1979 entry noted complaints of a left ear ache, which was attributed to an ear infection.  

The Veteran's discharge audiometric testing revealed pure tone thresholds, in decibels, to be as follows:





HERTZ



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


The Veteran's service personnel records show he was trained as a "mineman."

Private medical records for 2008 document that in August of that year, the Veteran reported noticing sudden hearing loss and pressure in the left ear, as well as tinnitus.  Audiometric testing was performed, and was interpreted to show normal hearing in the right ear, and sensorineural hearing loss in the left ear, with excellent speech discrimination in the right ear, and good speech discrimination in the left ear.  The actual audiogram report shows that for the right ear, the Veteran demonstrated pure tone thresholds of 20 or less in the 500 through 4000 hertz ranges.  For the left ear and in the same hertz ranges, the audiogram showed pure tone thresholds of 30 in two of the hertz ranges.  Word discrimination testing using "WDS" was 100 percent for the right ear, and 84 percent for the left ear.  Other private records on file document diagnoses of hearing loss and tinnitus.

The Veteran attended a VA examination in April 2009.  The Veteran reported experiencing hearing loss and tinnitus; he noted that both had begun in service, and that during service he worked in underwater demolition.  On audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
5
10
10
LEFT
20
20
30
35
30

Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 96 percent in the left ear.  The examiner concluded that hearing sensitivity was normal in the right ear.  As to the left ear and tinnitus, the examiner concluded that hearing tests in service did not demonstrate any hearing damage.  He concluded that the hearing loss and tinnitus therefore were less likely as not caused by or a result of noise exposure while in service.

VA treatment records in the Veteran's Virtual VA file show that in February 2010, the Veteran reported experiencing decreased hearing in his left ear, as well as tinnitus.  Physical examination disclosed the presence of cerumen in the right ear.  Audiometric testing at the time disclosed pure tone thresholds, in decibels, as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
10
15
10
LEFT
15
20
25
30
25

Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 96 percent in the left ear. 

The VA treatment records show that in December 2010, the Veteran presented with complaints of a one-week history of hearing loss in his "good ear."  Following the use of over-the-counter drops and irrigation of the ear, however, a large amount of wax was dislodged, resulting in the return of hearing in the ear to normal.  

In a June 2012 statement, Dr. Little noted that he evaluated the Veteran the same day.  He explained that the Veteran reported experiencing left ear hearing loss and tinnitus, and that the Veteran first noticed tinnitus immediately following his working with underwater demolitions in service.  Dr. Little noted that the audiogram in August 2008 showed normal hearing in the right ear, and hearing loss in the left ear.  He concluded that the Veteran's left ear hearing loss could be related to excessive noise exposure in service, but that it was difficult to determine the exact etiology.

At his July 2012 Board hearing, the Veteran testified that in service, he performed maintenance on underwater explosives.  He indicated that he used pneumatic tools and other loud equipment for that purpose.  He also testified that he would occasionally work on a flight deck ensuring the proper loading of ordnance, during which time he was not issued hearing protection.  The Veteran testified that he first noticed tinnitus while in service, but that he first noticed his hearing loss after discharge.  He explained that after service he worked as a service technician for an alarm company, and then eventually worked on office copiers; he noted that his noise exposure after service was minimal.  


Analysis

Service connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.A. 
§ 1131; 38 C.F.R. § 3.303(a).  

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).  For the purposes of 38 C.F.R. § 3.303(b), a "chronic" disease is limited to those listed in 38 U.S.C.A. § 1101 and 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

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).

Where a veteran develops certain chronic diseases, such as an organic disease of the nervous system, to a degree of 10 percent or more within one year from separation from service, such diseases may 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.  See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309.

When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  See also Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 

For VA purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz 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). 


I.  Right ear hearing loss

The Court has held that in a case where the law is dispositive of the claim, the claim should be denied because of the absence of legal merit or lack of entitlement under the law.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  Although the Veteran contends that he has hearing loss in the right ear, his service treatment records and discharge examination report contain audiologic findings demonstrating that he does not have a hearing loss disability in that ear for VA compensation purposes, and there is otherwise no competent evidence on file since service, VA or private demonstrating the presence of right ear hearing loss for VA compensation purposes.  The Board notes that his one mention to medical providers of clearly diminished auditory acuity in the ear resolved once the apparent wax build up in the ear was removed.

Since audiologic findings of record do not demonstrate right ear hearing loss disability for VA compensation purposes, and as there is otherwise no competent evidence on file demonstrating the presence of such hearing loss, the claim must be denied. 


II.  Tinnitus

Given the training the Veteran underwent in service and the duties he performed, the Board finds that his account of exposure to acoustic trauma is consistent with the places, types and circumstances of his service.  The Board consequently finds he was exposed to acoustic trauma in service as claimed.

The Veteran has indicated that he first noticed tinnitus in service, and that the same symptoms continued since service.  The Board finds that his statements and testimony in this regard are credible, and has no reason to doubt the accuracy of his recollections.  Given this, and as tinnitus is one of the few disorders particularly susceptible to lay observation as to symptoms, see Charles v. Principi, 16 Vet. App. 370 (2002) and Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), the Board finds that the Veteran is competent to establish that his tinnitus originated in service and is etiologically related to his current tinnitus.  The Board has considered the opinion of the April 2009 examiner, but notes that the examiner did not provide an intelligible rationale for the opinion.  The Veteran's opinion concerning the origin of his tinnitus is based on his observations of the onset of tinnitus in service and the continued presence of symptoms since that time.  

In short, the Board finds that the evidence is at least in equipoise as to whether the Veteran's tinnitus originated in service.  Consequently, service connection for tinnitus is warranted.  38 C.F.R. §§ 3.102, 3.303(d) (2012).


ORDER

Entitlement to service connection for right ear hearing loss is denied.

Entitlement to service connection for tinnitus is granted.


REMAND

With respect to the left ear hearing loss, the post-service audiograms demonstrate that he does have hearing loss in that ear for VA compensation purposes.  As already discussed in connection with the disposition of the tinnitus claim, the Veteran has a history of exposure in service to acoustic trauma.  The remaining question is whether the current left ear hearing loss is related to that acoustic trauma.

The April 2009 VA examiner concluded that the left ear hearing loss was not related to service, apparently on the rationale that the audiometric findings in service did not demonstrate any hearing damage.  The Board does not find the rationale persuasive, as the absence of "hearing loss" on examinations in service does not categorically lead to the conclusion that the injury involved (namely, acoustic trauma) did not result in hearing loss that only became clinically identifiable after service.  See generally, Hensley v. Brown, 5 Vet. App. 155 (1993).  The Board finds that the examiner's rationale renders the examination inadequate.

The Board notes that Dr. Little concluded only that the Veteran's left ear hearing loss could be related to excessive noise exposure in service.  Under the circumstances, the Board finds that Dr. Little's opinion does not, at this point, reasonably establish that service connection is warranted.

Accordingly, the case is REMANDED for the following actions:

1.  The Veteran should be scheduled for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of the Veteran's left ear hearing loss.  All indicated studies should be performed.  The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's left ear hearing loss originated in service or within one year of discharge therefrom, or is otherwise etiologically related to service (to include from acoustic trauma as claimed).  A detailed rationale for any medical opinion offered must be provided.

2.  The Veteran must be advised of the importance of reporting to the scheduled VA examination and of the possible adverse consequences, to include the denial of his claim, of failing, without good cause, to so report.  See 38 C.F.R. § 3.655 (2012).  A copy of the notification letter sent to the Veteran advising him of the time, date, and location of the scheduled examination must be included in the claims folder and must reflect that it was sent to his last known address of record.  If he fails to report to the examination, the claims folder must indicate whether the notification letter was returned as undeliverable.

3.  Thereafter, the RO/AMC should readjudicate the claim on appeal.  If the benefit sought on appeal is not granted in full, the RO/AMC must issue a supplemental statement of the case, and provide the Veteran and his representative an opportunity to respond.

After the Veteran and his representative have been given an opportunity to respond to the supplemental statement of the case and the period for submission of additional information or evidence set forth in 38 U.S.C.A. § 5103(b) (West 2002) has expired, if applicable, the case should be returned to the Board for further appellate consideration, if otherwise in order.  By this remand, the Board intimates no opinion as to any final outcome warranted.  The appellant and his representative have the right to submit additional evidence and argument on the matter the Board has remanded to the RO/AMC.  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).


______________________________________________
L. M. BARNARD
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs