Citation Nr: 1321965 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 09-29 384 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from June 1966 to October 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision that, in pertinent part, denied service connection for bilateral hearing loss. The Veteran timely appealed. This is the only issue that has been perfected on appeal. In February 2009, the Veteran testified during a hearing before RO personnel. In December 2012, the Veteran testified during a hearing before the undersigned at the RO. Lastly, in addition to reviewing the Veteran's paper claims file, the Board has surveyed the contents of his Virtual VA file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran and his representative when further action is required. REMAND Records While a copy of the Veteran's Form DD214 is in the claims file, his record of assignments (DA Form 2-1) and combat history have not been associated with the claims file (paper or electronic). Service personnel records that document exposure to acoustic trauma or participation in combat are relevant to the Veteran's claim for service connection for bilateral hearing loss. VA is obliged to assist the Veteran to obtain evidence pertinent to his claim. See 38 U.S.C.A. § 5103A (West 2002). Lay Evidence VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a) (2012); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran contends that service connection for bilateral hearing loss is warranted on the basis that he was exposed to acoustic trauma from an artillery unit firing over a bunker in active service in 1968 during the Vietnam Conflict. He testified that his unit supplied and took over duties of the 1st Infantry, when the 1st Infantry was out in the field. The Veteran testified that, during the Tet Offensive, he was on bunker guard with five other men when the perimeter was being overrun. Those in the bunker started rapid firing M-16's; two men in the bunker were killed. The artillery unit pulled a tank up behind the bunker, and shot over the bunker. The Veteran testified that it sounded like an airplane coming in the bunker, and dirt was knocking down on them. After seven or eight rounds over the bunker, the tank was moved away. The Veteran testified that, the next morning, none of the men who were in the bunker could hear. He testified that their ears rang and buzzed for a couple of days. He testified that he did not worry when his hearing loss became worse over the years, until he had a stroke and required hearing aids. The Veteran also testified that he lost a couple of employment opportunities in the late 1970's and early 1980's because he could not pass a hearing test. He is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Audiometric testing in service at enlistment in May 1966 revealed that the Veteran's hearing was 15/15, bilaterally, for whispered and spoken voice. Pure tone thresholds, in decibels (ASA units converted to ISO units), for each ear were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 20 20 - 10 LEFT 30 25 25 - 20 (The Board notes that in cases where American Standards Association (ASA) units have been recorded, they are converted to International Standards Organization (ISO) units for proper comparison.) On a "Report of Medical History" completed by the Veteran in April 1969 and again in October 1969, he checked "no" in response to whether he ever had or now had hearing loss. Audiometric testing at the time of the Veteran's separation examination in October 1969 revealed normal hearing, bilaterally. Pure tone thresholds, in decibels, for each ear were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 15 - 15 LEFT 15 15 5 - 20 VA audiometric test results in May 2007 revealed data most consistent with bilateral, moderately-severe sensorineural hearing loss. At that time the Veteran reported having a hearing loss in both ears, and a constant, bilateral buzzing tinnitus since 1970. He reported working around artillery in active service from 1966 to 1969, without hearing protection. Records show that the Veteran was considered a candidate for amplication, and was found eligible to receive VA hearing aid benefits. Evidence of a current hearing loss disability-i.e., one meeting the requirements of 38 C.F.R. § 3.385-and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In May 2008, a VA audiologist opined that the configuration of the Veteran's hearing loss was consistent with presbycusis, aging process. Records show that the claims file was not provided for review at the time, and no opinion had been requested. In December 2011, another VA audiologist opined that the Veteran's hearing loss was not at least as likely as not (50 percent probability or greater) caused by or a result of an event in active service. The audiologist had reviewed the claims file, and reasoned that both the enlistment physical and discharge physical indicated normal hearing; and that service connection for bilateral hearing loss had been denied in 2008, because no hearing loss was noted during active service or within the first post-service year. It is obvious that neither opinion of record included consideration of the Veteran's lay testimony of having been exposed to acoustic trauma from artillery units firing over a bunker in Vietnam, as described in the Veteran's December 2012 testimony. It is also unclear whether either audiologist considered the converted units of the May 1966 enlistment examination. Given the likelihood that the Veteran had significant in-service acoustic trauma as described in his December 2012 testimony, an examination is needed to determine whether the Veteran's current bilateral hearing loss either had its onset during service or is related to his active service-to specifically include in-service acoustic trauma from artillery units firing over a bunker in Vietnam, as alleged; or if the disability is otherwise related to his active service. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4) (2012). Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate action to obtain the Veteran's service personnel records, including his record of assignments and combat history. Please associate all records with the Veteran's claims folder (paper or electronic). 2. Afford the Veteran a VA audiology examination to identify all current disability underlying the Veteran's current complaints of bilateral hearing loss; and to obtain information as to the current nature and likely etiology of any current hearing loss of either ear. All appropriate tests and studies (to include audiometric testing) should be accomplished, and all clinical findings should be reported in detail. The examiner should specifically indicate whether the Veteran currently has hearing loss in either ear to an extent recognized as a disability for VA purposes (i.e., has an auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz of 40 decibels or greater; or an auditory threshold for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 hertz of 26 decibels or greater; or speech recognition scores using the Maryland CNC Test of less than 94 percent). Based on the examination and review of the record, the examiner should offer opinions as to whether it is at least as likely as not (50 percent probability or more) that any such hearing loss disability of either ear had its onset in service, or is the result of disease or injury incurred during service-to specifically include in-service acoustic trauma from artillery units firing over a bunker in Vietnam, as credibly reported by the Veteran. If other causes are more likely, those should be noted. The examiner's attention is directed to the service treatment records, including the converted units of the May 1966 enlistment examination (which are set forth below), and the Veteran's lay statements. HERTZ 500 1000 2000 3000 4000 RIGHT 35 20 20 - 10 LEFT 30 25 25 - 20 The examiner is asked to explain the reasons behind any opinions offered. The examiner is also reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The Veteran's claims file, to include a complete copy of this REMAND, must be provided to the examiner designated to examine the Veteran, and the examination report should note review of the file. 3. After ensuring that the requested actions are completed, the RO or AMC should re-adjudicate the claim on appeal. If the benefits sought are not fully granted, the RO or AMC must furnish a SSOC, before the claims file is returned to the Board, if otherwise in order. No action is required of the Veteran and his representative until they are notified by the RO or AMC; 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 Veteran 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 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).