Citation Nr: 1324305 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 10-04 303 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a gastrointestinal disorder, other than irritable bowel syndrome (IBS), to include as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is also the appellant, had active service from February 1970 to February 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Cleveland, Ohio. Subsequently, the New Orleans, Louisiana, RO assumed jurisdiction. The issue of entitlement to service connection for a gastrointestinal disorder other than IBS, to include as secondary to service-connected PTSD, is remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. Preexisting right ear hearing loss was noted on the February 1970 service entrance examination. 2. The preexisting right ear hearing loss permanently increased in severity during service. 3. The Veteran's current left ear hearing loss is of service origin. CONCLUSIONS OF LAW 1. The Veteran's right ear hearing loss preexisted service. 38 U.S.C.A. §§ 1110, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.385 (2012). 2. Resolving all reasonable doubt in the Veteran's favor, the preexisting right ear hearing loss was aggravated by service. 38 U.S.C.A. §§ 1110, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.385 (2012). 3. Resolving all reasonable doubt in the Veteran's favor, left ear hearing loss was incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist 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). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). As the Board is granting the full benefit sought on appeal as it relates to the claims of service connection for bilateral hearing loss, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (VA Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Service Connection Legal Authority 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. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, 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). 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, or 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 threshold for normal hearing is between 0 and 20 decibels, and higher threshold shows some degree of hearing loss. The provisions of 38 C.F.R. § 3.385 do not require that hearing loss be shown as defined in that regulation at the time of separation from service, if there is sufficient evidence to demonstrate a relationship between the veteran's service and his current disability. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The disability at issue, namely hearing loss, sensorineural in nature, has been determined a policy matter by VA to be a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303(b) apply. 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). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as sensorineural hearing loss (an organic disease of the nervous system), 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 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. A veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at the time of examination, acceptance, enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304 (2012). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. §§ 3.304, 3.306. In explaining the meaning of an increase in disability, the Court has held that "temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened." Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002) (explaining that, for non-combat veterans, a temporary worsening of symptoms due to flare ups is not evidence of an increase in disability). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). Of note is that the burdens and evidentiary standard to determine whether conditions noted at entrance into service were aggravated by service are different than the burdens and evidentiary standard to determine whether conditions not noted at entrance into service were aggravated. If a preexisting condition noted at entrance into service is not shown to have as likely as not increased in severity during service, the analysis stops. Only if such condition is shown by an as likely as not standard to have increased in severity during service does the analysis continue. In such cases, the increase is presumed to have been due to service unless there is clear and unmistakable evidence that the increase during service was not beyond the natural progression of the condition. See 38 C.F.R. § 3.306. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection for Right Ear Hearing Loss The Veteran maintains that the acoustic trauma that he was exposed to in service resulted in his current right ear hearing loss. In his January 2010 substantive appeal, the Veteran indicated that he was exposed to many of the fire bases while they were in operation. He stated that he was never provided with hearing protection by the Army or the personnel at the fire bases. He stated that there were times that he left the fire base and could not hear for days. The Veteran stated that his hearing had never been the same since Vietnam. As it relates to the right ear, the service entrance examination is positive for a diagnosis of right ear hearing loss. The February 1970 active duty entrance examination recorded puretone thresholds at the test frequencies of 500, 1000, 2000, and 4000 Hertz in the right ear of 0, 0, 5, and 35 decibels, respectively. This entrance examination "notes" pre-existing bilateral hearing loss of 35 decibels at 4000 Hertz that is not within the normal ranges. See Hensley, 5 Vet. App. at 157 (recognizing medical authority that threshold for normal hearing is between 0 and 20 decibels). Because preexisting right ear hearing loss was "noted" at the service entrance examination, the Veteran is not entitled to the presumption of soundness regarding his right ear hearing loss at service entrance. 38 U.S.C.A. § 1111. The Board does note that at the Veteran's January 1973 service separation examination the reported decibel level readings were 0, 0, 0, and 0 in the right ear at 500, 1000, 2000, and 4000 Hertz. While this would appear to show an improvement in the Veteran's hearing, the Board finds these results of no probative value. Given the audiometric findings at entrance, the acoustic trauma to which he was exposed to in service (which the Board notes led to the granting of service connection for tinnitus), and the Veteran's credibly reported history of onset of hearing loss symptoms in service, it is highly unlikely that the Veteran's right ear hearing loss would have actually improved during his period of service; hence, the Board will address this issue as though there was no probative audiological evaluation performed at service separation. See Ledford v. Derwinski, 3 Vet App. 87, 89 (1992) (holding that a claimant is not prevented from establishing service connection on the basis of post-service evidence of hearing loss related to service when there were no audiometric scores reported at separation from service). In conjunction with his claim, the Veteran was afforded a VA audiological examination in March 2012. Audiological evaluation performed at that time revealed decibel level readings of 25, 25, 45, 75, and 85 at 500, 1000, 2000, 3000, and 4000 Hertz. Speech recognition testing was 88 percent in the right ear. The Veteran was diagnosed as having sensorineural hearing loss in the right ear. Such results, on both audiometric thresholds and speech recognition scores, show current right ear hearing loss "disability" as defined for VA disability compensation purposes at 38 C.F.R. § 3.385. Following examination, the VA examiner in March 2012 rendered an opinion that the Veteran's right ear sensorineural hearing loss was not aggravated beyond normal progression in the military. In support of the opinion, the examiner referenced the audiometric findings at entrance and separation; however, as noted above, the Board has found the audiometric findings at the time of the January 1973 separation examination to be of no probative value and akin to that of there having been no audiometric examination performed at the time of service separation. Thus, the rationale which was used to support the opinion is also of no probative value as it is based on a factually inaccurate assumption that the Veteran had no hearing loss at all, even within normal ranges, at the time of service separation. Such an opinion based on a factually inaccurate history or assumption is of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based upon an inaccurate factual premise has no probative value). The Board does note that with regard to the question of whether it was at least as likely as not that the Veteran's tinnitus was related to his period of service, in addition to checking the box noting that it was at least as likely as not that the Veteran's tinnitus was caused by or a result of military noise exposure as the Veteran was exposed to artillery fire in battle, the VA examiner in March 2012 also checked the box indicating that the Veteran's tinnitus was at least as likely as not a symptom associated with his hearing, as tinnitus was known to be a symptom associated with hearing loss. In this case, the Board finds that the evidence is in equipoise on the question of whether the Veteran's preexisting right ear hearing loss, which was noted at service entrance, permanently increased in severity during service. The Veteran experienced acoustic trauma in service, as evidenced by the grant of service connection for tinnitus based in part upon his exposure to artillery fire in battle. The Veteran has also reported continuous post-service right ear hearing loss symptoms, which the Board finds credible, and the VA examination audiogram reflects that the Veteran's right ear hearing loss has continued to worsen from his period of service. Moreover, the VA examiner indicated that the Veteran's tinnitus was at least as likely as not in part related to his hearing loss, which demonstrates at least a relationship between the service-connected tinnitus and the Veteran's hearing loss. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for right ear hearing loss, as aggravated in service, have been met. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Service Connection for Left Ear Hearing Loss The Veteran maintains that the acoustic trauma that he was exposed to in service resulted in his current left ear hearing loss. In his January 2010 substantive appeal, as noted above, the Veteran reported the in-service noise exposure he sustained and indicated that his hearing had never been the same since Vietnam. As it relates to the left ear, the February 1970 active duty service entrance examination recorded puretone thresholds at the test frequencies of 500, 1000, 2000, and 4000 Hertz of 0, 0, 0, and 20 decibels, respectively. As noted above, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 20 decibels or greater. Thus, the Veteran was shown to have normal hearing in the left ear at the time of his entrance into service. Although the Veteran was shown to have decibel level readings of 0, 0, 0, and 0 at 500, 1000, 2000, and 4000 Hertz at the time of the January 1973 service separation examination, as explained above, the Board has found these results to be of no probative value. For this reason, the Board will address the claim as though the Veteran was not afforded an audiological evaluation at the time of separation from service. At the time of the March 2012 VA audiological examination, testing revealed decibel level readings of 25, 25, 50, 75, and 85 at 500, 1000, 2000, 3000, and 4000 Hertz for the left ear. Speech recognition testing was 84 percent in the left ear, with the examiner rendering a diagnosis of sensorineural hearing loss in the left ear. Following examination, the VA examiner in March 2012 rendered an opinion that the Veteran's left ear hearing loss was not as likely as not caused by or a result of an event in military service. In support of the opinion, the examiner referenced the audiometric findings at entrance and separation; however, as noted above, the Board has found the audiometric findings at the time of the January 1973 separation examination to be of no probative value and akin to that of there having been no audiometric examination performed at that time. For this reason, the rationale which was used to support the opinion is inaccurate, rendering the opinion of no probative value. While the Board notes that the VA examiner also indicated that the Veteran's left ear hearing loss preexisted service, the reported decibel level readings between 0 and 20 demonstrate that the Veteran had normal hearing, as defined by the Court in Hensley, at the time of entrance into service. Thus, the presumption of soundness at service entrance attached. In this case, the Board finds that the evidence is in equipoise on the question of whether the Veteran's left ear hearing loss is related to his period of active service. The Veteran experienced acoustic trauma in service, as evidenced by the grant of service connection for tinnitus based, in part, upon his exposure to artillery fire in battle. The Veteran has also reported continuous post-service left ear hearing loss symptoms, which the Board finds credible, and the VA examination audiogram reflects that the Veteran's left ear hearing loss has continued to worsen from his period of service. Moreover, the VA examiner indicated that the Veteran's service-connected tinnitus was at least as likely as not, in part, related to his hearing loss, which demonstrates at least a relationship between the service-connected tinnitus and the Veteran's left ear hearing loss. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for left ear hearing loss have been met. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss is granted. REMAND With regard to the claim of service connection for a gastrointestinal disorder, the Board notes that service connection is currently in effect for IBS; therefore, such symptoms of IBS may not be considered on the issue of service connection for a gastrointestinal disorder. See 38 C.F.R. § 4.14 (2012). In disability compensation (service connection) claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (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 the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, service treatment records reveal that the Veteran was seen with complaints of numerous gastrointestinal problems in service. Private treatment records associated with the claim folder, in addition to containing diagnoses of IBS, also reveal other gastrointestinal diagnoses, to include colitis, acute gastroenteritis, peptic duodenitis, acute gastritis, duodenitis, intractable epigastric pain, gastroesophageal reflux disease (GERD), and chronic gastritis. The Veteran has asserted that such disorders are associated with the complaints or findings in service. There is otherwise not sufficient medical evidence of record to decide this question. In conjunction with this claim, the Veteran was afforded a VA examination in March 2012 by a VA nurse practitioner. At the time of the examination, in addition to rendering a diagnosis of IBS, the examiner also rendered a diagnosis of an undiagnosed digestive condition. Following examination of the Veteran, the examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner reasoned that the Veteran had no current diagnosis of a gastrointestinal disability other than IBS. She opined that, in the absence of definitive diagnosis of GI disability other than IBS, it was less likely as not (less than 50 percent) that the undiagnosed digestive condition was caused by, or represented a progression of, the multiple gastrointestinal complaints in service. She noted that, similarly, in the absence of a definitive diagnosis of GI disability other than IBS, it was less likely as not that the undiagnosed digestive condition was caused by or represented a progression of his service-connected PTSD. While the VA examiner in March 2012 rendered the above opinions, an upper GI series was also performed in conjunction with the examination. The physician who performed the study indicated that it revealed mild prominence of the gastric rugal folds. He stated that, while this might be due to underdistention, gastritis could appear similar. No gastric ulcerations were identified. The physician indicated that a gastroenterological consultation was advised. The Board notes that the gastroenterological consult, as was advised, was not performed. The Veteran's representative, in a May 2013 written argument, noted the findings on the upper GI series and the physician's recommendation that the Veteran be afforded a GI consultation. He requested that the matter be remanded for the consultation. Where the Board makes a decision based on an examination report that does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App. 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). Accordingly, the issue of service connection for a gastrointestinal disorder (other than IBS), including as secondary to PTSD, is REMANDED for the following action: 1. Schedule the Veteran for a VA examination by a gastroenterologist to assist in determining the nature and etiology of any current gastrointestinal disorder (other than IBS). All indicated tests and studies should be performed and all findings must be reported in detail. The relevant documents in the claims file should be made available to, and reviewed by, the examiner in conjunction with the examination. If any gastrointestinal disorder is found other than IBS, the examiner is requested to render the following opinions: A) Is it as likely as not (50 percent probability or greater) that the current gastrointestinal disorder other than IBS had its onset in service or is otherwise related to the Veteran's period of service? B) If not, is it as likely as not (50 percent probability or greater) that any gastrointestinal disorder other than IBS is caused or aggravated (permanently worsened in severity beyond a normal progression) by the service-connected PTSD? Complete detailed rationale should be provided for any opinion that is rendered. 2. After undertaking any other development deemed appropriate, the AMC/RO should readjudicate the issue of service connection for a gastrointestinal disorder (other than IBS), including as secondary to PTSD. If the benefit sought is not granted, the Veteran and representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for future review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2012). 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 Department of Veterans Affairs