Citation Nr: 1320804 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 07-22 703 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for bilateral sensorineural hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran served on active duty from July 1979 to July 1982, with subsequent periods of active duty for training. This matter comes before the Board of Veterans' Appeals (Board) from a March 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The claims on appeal were previously remanded by the Board in January 2011 in order for additional evidentiary development to be conducted. In a subsequent April 2012 determination, the Board denied entitlement to service connection for bilateral hearing loss and tinnitus and remanded the Veteran's TDIU claim for additional development. The Veteran appealed the Board's April 2012 decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2012 Order, the Court vacated, in relevant part, the April 2012 decision of the Board with respect to the Board's denial of the issues of entitlement to service connection for bilateral hearing loss and tinnitus, pursuant to the recommendation of a contemporaneous Joint Motion for Remand (JMR), and remanded the matter for readjudication. The April 2012 Board determination also referred the issues of entitlement to service connection for organic heart disorder, hypertensive vascular disease, and left ventricular hypertrophy to the RO. As the remanded claim was in the possession of the Appeals Management Center (AMC) there is no evidence or indication that the RO has acted on the referred claims. Indeed, the last notation of record is a June 2012 notation from the AMC referring the claims to the RO. As such, the Board again refers the claims to the RO for consideration, development, and adjudication. The issue of entitlement to TDIU 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. There is an approximate balance of positive and negative evidence as to whether the Veteran's current bilateral sensorineural hearing loss disability is related to his military service. 2. There is an approximate balance of positive and negative evidence as to whether the Veteran's current tinnitus is related to his military service. CONCLUSIONS OF LAW 1. Resolving doubt in favor of the Veteran, his bilateral sensorineural hearing loss disability was incurred as a result of his military service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2012). 2. Resolving doubt in favor of the Veteran, his tinnitus was incurred as a result of his military service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 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 light of the favorable decision herein as to the issues on appeal, the Board finds that any deficiencies in notice were not prejudicial to the Veteran. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012). Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred in line of duty. 38 U.S.C.A. § 101(21) and (24) (West 2002 & Supp. 2012); 38 C.F.R. § 3.6(a) (2012). Active military, naval, or air service also includes any period of inactive duty training (INACDUTRA) duty in which the individual concerned was disabled from injury incurred in the line of duty. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1131 (West 2002 & Supp. 2012). ACDUTRA includes full time duty performed by members of the National Guard of any state or the reservists. 38 C.F.R. § 3.6(c). INACDUTRA includes duty other than full time duty performed by a member of the Reserves or the National Guard of any state. 38 C.F.R. § 3.6(d). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including hearing loss, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). In the instant case, there is no presumed service connection because hearing loss was not medically diagnosed within one year of discharge; indeed, it was not diagnosed until decades after service. In the absence of presumptive service connection, to establish a right to compensation for a present disability on a direct basis, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). With respect to claims for service connection for hearing loss, the United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court further opined that 38 C.F.R. § 3.385, discussed below, then operates to establish when a hearing loss disability can be service connected. Id at 159. For the 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 is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 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. The Veteran alleges that he has a bilateral sensorineural hearing loss disability and tinnitus as the result of his active duty service. Specifically, the Veteran has asserted that he worked as a cannon crewmember in the heavy field artillery, which required that he set fuses and charges on projectiles, load, drive, operate, and fire Howitzers and machine guns, and fire rifles. The Veteran has reported that his military duties constantly exposed him to excessive noise levels, which he believes resulted in his current hearing loss and tinnitus disabilities. In that regard, the Veteran's DD Form 214 reflects that his military occupational specialty (MOS) was, indeed, a cannon crewman; therefore, for the purposes of this decision, his military noise exposure is conceded. The Board notes that the service treatment records (STRs) do not contain any complaints or treatment related to hearing loss. However, in support of his claim the Veteran submitted an undated service treatment record (from some time after 1980) that included an audiogram showing some degree of hearing loss as prescribed by the Court in Hensley, but not to the extent that it would be considered a right or left ear hearing loss disability for VA purposes pursuant to 38 C.F.R. § 3.385. Perhaps significantly, despite the findings in the audiogram the undated service treatment record explicitly did not put the Veteran on a physical profile for decreased hearing acuity. Moreover, the Board notes that there is evidence of record that shows the Veteran manifested decreased hearing acuity (15/20 bilaterally) in August 1985, during a period of active duty for training. While this evidence shows that the Veteran manifested decreased hearing during a period of active duty, the Board notes that, because the decreased hearing shown at that time was not based upon an audiogram, a determination cannot be made as to whether the Veteran's decreased hearing met the criteria for hearing loss, as defined by 38 C.F.R. § 3.385, at that time. Thus, there is some evidence of hearing loss, though not a hearing loss disability for VA purposes, during military service. The Board accepts, based on the evidence proffered, that the Veteran has current bilateral hearing loss and tinnitus disabilities. Multiple VA and private treatment records have noted diagnoses of bilateral hearing loss and tinnitus. Furthermore, the reported audiological results met the requirements of 38 C.F.R. § 3.385 for establishing a current bilateral hearing loss disability. As to whether the current bilateral hearing loss and tinnitus disabilities are related to noise exposure in service, the Board notes that there are potentially conflicting medical opinions of record. First, a February 2006 note from a private physician diagnosed bilateral sensorineural hearing loss and tinnitus that was likely secondary to on-duty exposure to loud noises. The note itself does not provide a rationale for the opinion expressed; however, an earlier February 2006 private audiological evaluation report from a different facility discussed the Veteran's personal and family history, which included reported noise exposure and no family history of hearing loss. The recommendation of the February 2006 audiological evaluation was a medical evaluation by the subsequent February 2006 physician who provided the opinion linking the Veteran's in-service noise exposure and current bilateral hearing loss and tinnitus. In light of the foregoing, the Board finds it reasonable to conclude that the February 2006 opinion provider considered the results and reported history of the February 2006 audiological evaluation report and that a rationale for the physician's opinion can be imputed to the reported history and medical findings made therein. Second, a January 2011 letter from another private physician discussed the Veteran's reported complaints, the diagnosed bilateral sensorineural hearing loss, and provided the opinion that the bilateral hearing loss was linked to the Veteran's military service as a "cannoner" in the heavy field artillery. The opinion did not provide a specific rationale for the conclusions reached. In addition, the Veteran was afforded a VA audiological examination in June 2011. The examiner reviewed the claims file and medical records, interviewed the Veteran, and conducted an examination. Based on the foregoing, the examiner diagnosed bilateral sensorineural hearing loss and tinnitus, but concluded that she was unable to reach a conclusion as to etiology without resort to speculation. As to the reason for her inability to reach a conclusion as to etiology, she noted that there was no audiological examination at separation from service, that there were no complaints of hearing loss or tinnitus in service, the Veteran had a documented pattern of inconsistent responses in audiometric testing, and that at the time of examination the Veteran reported onset of left ear tinnitus in 2005. The Board finds the June 2011 VA examination report of limited probative value based on the examiner's inability to reach a conclusion as to the etiology of the Veteran's hearing loss and tinnitus disabilities. In addition, the Board finds that the January 2011 private physician's opinion is of limited probative value because the opinion provided no rationale or basis for the conclusions expressed. By contrast, while the February 2006 private physician's opinion did not expressly provide any rationale for the opinion reached, as the Veteran was referred to the physician as a result of his February 2006 audiogram showing bilateral hearing loss it is reasonable to infer that the February 2006 opinion was based on the Veteran's reported history, current complaints, and the examination of record. In addition, there is contradictory lay evidence as to the time of onset of decreased hearing acuity. In multiple statements, the Veteran and his wife have indicated that the onset of decreased hearing or reports of the same began in 2005 or 2006. In other statements, however, the Veteran has reported ongoing decreased hearing acuity from service. In support of that assertion, a February 2013 statement from a fellow service member related that during service the Veteran had complained about the excessive noise produced by rifles, machine guns, and heavy field artillery fire and noted difficulty hearing in both ears. Given these contradictory assertions, the Board is wary of using these statements as a basis for granting entitlement to service connection for bilateral hearing loss or tinnitus. Moreover, in light of the complexity of otherwise relating current hearing loss or tinnitus to events occurring many years prior to the onset of problems is beyond the lay competency of the Veteran, his wife, and his representative. The above notwithstanding, the Board notes that lay continuity of symptomatology is not imperative for granting entitlement to service connection for hearing loss or tinnitus. In that regard, evidence of a current hearing loss or tinnitus disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In light of the multiple private physicians suggesting a link between hearing loss and tinnitus and military service, the speculative or nonspecific nature of the June 2011 VA examination report, and the credible evidence of in-service noise exposure, the Board concludes that the evidence is at least in relative equipoise as to whether his current bilateral hearing loss and tinnitus had their onset in service or are otherwise directly related to noise exposure therein. When the totality of the evidence supports the Veteran's claim or is in relative equipoise, the Veteran prevails on his claim. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, having resolved reasonable doubt in favor of the Veteran, the Board concludes service connection is warranted for bilateral hearing loss and tinnitus. ORDER Entitlement to service connection for bilateral sensorineural hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMAND As noted above, the Board's April 2012 determination remanded the issue of entitlement to TDIU to the AMC. The remand directed that the AMC determine whether the Veteran's service-connected status post right femoral hernia repair and/or left epididymal cyst scar, status post excision, rendered him unemployable. The April 2012 determination also granted entitlement to service connection for erectile dysfunction and, as such, this service-connected disability was implicitly included in consideration of entitlement to TDIU. Subsequently, in a June 2012 rating decision the AMC granted entitlement to service connection for depressive disorder, not otherwise specified, and assigned a 100 percent disability rating effective from January 27, 2006. Based on the 100 percent rating assigned, the AMC concluded that the claim for entitlement to TDIU was moot. The Board recognizes that in a 1999 precedent opinion, VA's General Counsel concluded that a claim for TDIU could not be considered for a time period when a schedular 100 percent rating was already in effect for a service-connected disability. See VAOPGCPREC 6-99 (June 7, 1999). That is, the issue was essentially moot. However, the opinion was withdrawn in November 2009 after the Court determined that there was an exception to the opinion when it decided Bradley v. Peake, 22 Vet. App. 280 (2008). In that case, the Court held that there could be a situation where a veteran had a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability or disabilities in order to qualify for special monthly compensation (SMC) under 38 U.S.C. § 1114(s) by having an "additional" disability of 60 percent or more ("housebound" rate). See 38 U.S.C.A. § 1114(s) (West 2002 & Supp. 2012); see also Buie v. Shinseki, 24 Vet. App. 242, 250 (2011) (discussing VA's "well-established" duty to maximize a claimant's benefits). The Board is obligated by law to ensure that the RO (or AMC) complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). In this case, the Veteran is not in receipt of SMC benefits under the provisions of 38 U.S.C. § 1114(s). Consequently, the issue of entitlement to TDIU is not moot and must be adjudicated by the AMC as directed in the Board's April 2012 remand. Specifically, the AMC must determine whether the Veteran's service-connected status post right femoral hernia repair; erectile dysfunction; and/or left epididymal cyst scar, status post excision, and now bilateral hearing loss and tinnitus, render him unable to secure or maintain substantially gainful employment. That is, a determination as to entitlement to TDIU must be made without consideration of his service-connected depressive disorder. VA examinations were afforded the Veteran in April 2012 and a Social and Industrial Survey was obtained in May 2012, as directed by the April 2012 Board remand. As the development ordered by the April 2012 Board remand has otherwise been completed, it remains only for the AMC to readjudicate the issue of entitlement to TDIU in light of the above evidence and discussion. Accordingly, the case is REMANDED for the following action: 1. Issue an SSOC on the issue of entitlement to TDIU, based on whether the Veteran's service-connected status post right femoral hernia repair; erectile dysfunction; left epididymal cyst scar, status post excision, bilateral hearing loss, and tinnitus alone render him unable to secure or maintain substantially gainful employment. Again, determination of entitlement to TDIU should not include consideration of the Veteran's service-connected depressive disorder, not otherwise specified. 2. If entitlement to TDIU is warranted based on the foregoing considerations, entitlement to SMC benefits under the provisions of 38 U.S.C. § 1114(s) also would be warranted pursuant to the Court's holding in Bradley v. Peake, 22 Vet. App. 280 (2008). 3. If the claim for entitlement to TDIU remains denied, the Veteran and his representative should be afforded appropriate time to respond to the SSOC before the claim is returned to the Board. 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). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs