Citation Nr: 1318604	
Decision Date: 06/07/13    Archive Date: 06/11/13

DOCKET NO.  09-20 082	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


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

R. Casadei, Associate Counsel





INTRODUCTION

The Veteran, who is the appellant in this case, served on active duty from January 1985 to September 1986.

This matter comes on appeal before the Board of Veterans' Appeals (Board) from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which denied service connection for bilateral hearing loss and tinnitus.  
	
The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC.  


REMAND

A remand is required in this case to assist the Veteran by ensuring that there is a complete record upon which to decide the Veteran's claim.  VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2012).

Generally, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996).   

A hearing loss disorder for VA compensation purposes is established when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; 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 (controlled speech discrimination) test are less than 94 percent.  38 C.F.R. § 3.385 (2012).  See also Hensley v. Brown,             5 Vet. App. 155, 157 (1993) (holding that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss).

The Veteran contends that his current bilateral hearing loss may be associated with noise exposure during service while working as a tank driver.  The Veteran has been diagnosed with bilateral sensorineural hearing loss and has bilateral hearing loss (both audiometric test scores and speech recognition test scores) that meets the standards for VA disability compensation under 38 C.F.R. § 3.385.  See January 2009 statement from Nevada County Hearing Aid Center and January 2008 VA examination report.  Further, based on the Veteran's assertions in an August 2007 VA treatment note, the Board finds that the Veteran has a current disability of tinnitus.  See Charles v. Principi, 16 Vet. App. 370 (2002) (stating that a lay person is capable of reporting symptoms of tinnitus).

On the question of in-service injury, disease, or event, the Veteran was exposed to loud noise during service.  The Veteran's military occupational specialty was armor crewman (tank driver).  See DD Form 214.  During a January 2008 VA examination, Veteran testified that he was exposed to military tank noise during service.  The Veteran is competent to report noise exposure.  See Bennett v. Brown, 10 Vet. App. 178 (1997) (the Board may rely upon lay testimony as to observable facts).  The Duty MOS Noise Exposure Listing referenced in DVA Fast Letter 10-35 for Modifying the Development Process in Claims for Hearing Loss and/or Tinnitus shows that exposure to hazardous noise for veterans with a duty MOS of armor crewman as "highly probable."  

The service entrance audiometric examination in December 1984 reflects hearing within normal limits (20 decibels or less) at service entrance as follows:






HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
10
0
20
LEFT
10
5
0
0
0

In-service audiometric testing reflected some level of hearing impairment during service that is outside the normal ranges.  For example, on the authorized audiological evaluation during service in March 1985, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
5
5
30
LEFT
10
10
5
10
25

The March 1985 in-service audiological evaluation reflects some level of hearing impairment (i.e., 30 decibels in 4000 Hertz in the right ear and 25 decibels in 4000 Hertz in the left ear).  See Hensley, 5 Vet. App. at 157 (citing CURRENT MEDICAL DIAGNOSIS & TREATMENT 110- 11 (Stephen A. Schroeder et. Al. ed., 1988)).

On the authorized audiological evaluation during service in March 1986, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
15
5
10
30
LEFT
15
10
10
15
20

The March 1986 in-service audiological evaluation demonstrates some level of hearing impairment in the right ear of 25 decibels at 500 Hertz and 30 decibels at 4000 Hertz.  See Hensley at 157.  

On the June 1986 service separation examination, pure tone thresholds, in decibels, were as follows: 




HERTZ



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

The June 1986 service separation audiological report demonstrates some level of hearing impairment that is not within the normal range (i.e., 25 decibels in 500 Hertz in the left ear).  See Hensley at 157.  According to the Court's decision in Hensley, the service treatment record audiometric test results discussed above show "hearing loss" during service and at service separation that is not within the normal ranges. 

The Board finds a January 2008 VA opinion regarding the relationship of hearing loss and tinnitus to service to be inadequate for rating purposes as the examiner relied upon an inaccurate factual assumption that the Veteran's hearing was within normal limits at the time of separation from service.  The VA examiner stated that the service separation examination dated June 1986 showed "normal hearing levels bilaterally from 500 to 6000 hertz."  Instead, various in-service audiometric testings during service (March 1985, March 1986, and June 1986) reflect hearing loss outside the normal ranges.  As well, the June 1986 service separation examination report revealed 25 decibels in 500 Hertz in the left ear which, as discussed above, surpasses the threshold for normal hearing.  See Hensley at 157 (threshold for normal hearing is from 0 to 20 decibels). As the January 2008 VA examiner's opinion was based on a factually inaccurate assumption of bilateral hearing loss within normal limits at service separation in June 1986, the opinion is of no probative value.  Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis).  For these reasons, a new VA audiological opinion is needed in this case.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (stating that, once VA undertakes to provide an examination, it is obligated to insure that the examination is adequate). 

In Savage v. Shinseki, 24 Vet. App. 124 (2010), the U.S. Court of Appeals for Veterans Claims (Court) held that, in some circumstances, VA has a duty to return for clarification unclear or insufficient examination reports even when they do not originate from VA medical personnel.  Such clarification should be obtained where the missing evidence bears greatly on the probative value of the examination report.  In this Veteran's claim for service connection for bilateral hearing loss, clarification of the January 2009 statement from the Nevada County Hearing Aid Center is required.  In the January 2007 correspondence, hearing audiologist A. K. stated that the Veteran had mild to severe bilateral sensorineural hearing loss.  According to 
A. K., the Veteran's hearing loss was due to "exposure to loud noises resulting in cochlea nerve damage."  It is unclear from the January 2007 correspondence whether the "exposure to loud noises" indicated occurred during or after service separation.  As such, clarification from the private audiologist must be undertaken on remand.

Accordingly, the case is REMANDED for the following action:

1.  The RO/AMC should contact the audiologist who conducted the January 2009 private audiogram for purposes of clarifying his opinion relating the Veteran's bilateral hearing loss to exposure to loud noises.  The audiologist should be asked to clarify the following:

(a)  Is the Veteran's bilateral sensorineural hearing loss at least as likely as not (probability 50 percent or greater) due to exposure to loud noises during service?  
The audiologist should discuss the role of both in-service noise exposure (from January 1985 to September 1986) and post-service noise exposure (September 1986 to present) in causing the Veteran's bilateral hearing loss disability.  

(b)  Is the Veteran's self-reported tinnitus at least as likely as not (probability of 50 percent or greater) due to exposure to loud noises during service?  The audiologist should discuss the role of both in-service noise exposure (from January 1985 to September 1986) and post-service noise exposure (September 1986 to present) in causing the Veteran's current tinnitus.  

The term "at least as likely as not" does not mean "within the realm of medical possibility."  Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it.

2.  Thereafter, schedule the Veteran for a VA audiological examination to assist in determining the nature and etiology of his bilateral hearing loss and tinnitus.  The VA examiner is requested to offer the following opinions:

A) Is it at least as likely as not (probability greater than 50 percent) that the Veteran's current bilateral hearing loss is a result of noise exposure during military service?

B) Is it at least as likely as not (probability greater than 50 percent) that the Veteran's current tinnitus is a result of noise exposure during military service?

For the purposes of the opinions regarding both hearing loss and tinnitus, the examiner should accept the following facts or discuss the following:
o The Veteran was exposed to loud noise (acoustic trauma) in service of military tank noise as an armor crewman (tank driver).
o Discuss the audiological examination reports which reveal some hearing loss impairment during service and at service separation that were outside the limits of normal hearing.  See service audiological evaluations dated in March 1985, March 1986, and June 1986.
o The Veteran had post-service noise exposure.  
o If obtained, the examiner should review and discuss the clarifying medical opinion from the Nevada County Hearing Aid Center.

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.

3.  After all development has been completed, the RO/AMC should readjudicate the issues of service connection for bilateral hearing loss and tinnitus.  If the benefits sought remain denied, the Veteran and his representative should be furnished a supplemental statement of the case, and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration.

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).