Citation Nr: 1324425	
Decision Date: 08/01/13    Archive Date: 08/13/13

DOCKET NO.  09-20 046	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss. 

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to an initial rating excess of 10 percent for residuals of status post arthroscopy due to right rotator cuff tear (right shoulder disability). 


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

J. Andrew Ahlberg, Counsel



INTRODUCTION

The Veteran served on active duty from January 1968 to December 1969 and March 2003 to March 2004, with additional periods of National Guard duty. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied service connection for bilateral hearing loss and tinnitus, and granted service connection for residuals of status post arthroscopy due to right rotator cuff tear and assigned an initial rating of 10 percent, effective February 27, 2008.

The Veteran entered a notice of disagreement in March 2009 with respect to the denial of service connection for bilateral hearing loss and tinnitus and in May 2009 with respect to the propriety of the initially assigned rating for his right shoulder disability.  In May 2009 a statement of the case regarding all three issues was issued.  In his June 2009 substantive appeal (VA Form 9), the Veteran checked the box that read: "I want to appeal all of the issues listed on the statement of the case and any supplemental statements of the case that my local VA office sent to me."  The Board notes that the Veteran specifically referenced the service connection claims and only presented arguments on such issues.  However, the Board finds that the checked box indicates that the Veteran wanted to appeal all of the issues addressed by the May 2009 statement of the case, to include the propriety of the initially assigned rating for his right shoulder disability.  See Evans v. Shinseki, 25 Vet. App. 7 (2011).  Therefore, all three issues have been properly appealed and are before the Board. 

The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims.  A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal.

The issue of entitlement to an initial rating in excess of 10 percent for the Veteran's right shoulder disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C.


FINDINGS OF FACT

1.  Resolving all doubt in his favor, the Veteran's bilateral hearing loss is related to his in-service noise exposure. 

2.  Resolving all doubt in his favor, the Veteran's tinnitus is related to his in-service noise exposure. 
 

CONCLUSIONS OF LAW

1.  Bilateral hearing loss was incurred in service.  38 U.S.C.A. §§ 101, 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.385 (2012). 

2.  Tinnitus was incurred in service.  38 U.S.C.A. §§ 101, 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.102, 3.303 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

As the Board's decision to grant service connection for bilateral hearing gloss and tinnitus herein is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and implementing regulations.   

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110 1131; 38 C.F.R. § 3.303.  Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d). 

The term "active military, naval, or air service" includes: (1) active duty; (2) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty, or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training.  38 U.S.C.A. § 101(2), (24); 38 C.F.R. § 3.6(a).  

ACDUTRA includes full-time duty performed by members of the National Guard of any State or the Reserves. 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).

Service connection may be presumed for certain chronic diseases, such as sensorineural hearing loss as an organic disease of the nervous system, which develop to a compensable degree (10 percent for an organic disease of the nervous system) within a prescribed period after discharge from service (one year for an organic disease of the nervous system), although there is no evidence of such disease during the period of service.  This presumption is rebuttable by probative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. 
§§ 3.307, 3.309.  Presumptive periods do not apply to ACDUTRA or INACDUTRA.  Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991).    

With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes.  Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned.  When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b).  

The United States Court of Appeals for the Federal Circuit recently clarified that the law providing for awards of service connection on the basis of continuity of symptomatology is limited to "chronic" diseases (such as sensorineural hearing loss as an organic disease of the nervous system) listed under 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature.  Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features.  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms.  Charles v. Principi, 16 Vet. App 370, 374 (2002).  

When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).  Although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).  With respect to tinnitus, the Court has specifically found that this is a disorder capable of lay observation.  Charles, supra.  

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 laws and regulations do not require in service complaints of or treatment for hearing loss in order to establish service connection.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service.  Hensley v. Brown, 5 Vet. App. 155, 159 (1993).

When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail.  

The Veteran asserts that, as a result of exposure to acoustic trauma during service, to include working around tanks during his first period of active duty, serving in a field artillery unit in the National Guard from 1974 to 1995, and driving heavy duty trucks during his second period of active duty, he developed bilateral hearing loss and tinnitus.  The Veteran's DD Form 214 from his first period of active duty reflects a Military Occupational Specialty (MOS) of a heavy vehicle driver and that his last unit of assignment was with an armored unit.  His DD Form 214 from his second period of active duty reflects an MOS of a Motor Transport Operator and also denotes 33 years of prior inactive service.  Therefore, the Board finds that the Veteran was exposed to acoustic trauma during his military service.  

The service treatment reports from the Veteran's first period of active duty, to include the reports from the July 1969 separation examination and medical history collected at that time, are negative for hearing loss and tinnitus.  As noted above, however, this is not fatal to the claim.  Ledford, Hensley, supra.  

The Board notes that service department audiometric readings prior to October 31, 1967 must be converted from American Standards Association (ASA) units to International Standard Organization (ISO) units.  As such, audiometric readings at entrance to the first period of service recorded in August 1967, with conversion to ISO units, were as follows: 




HERTZ



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

At the July 1969 separation examination from the Veteran's first period of active duty, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
20
NR
20
LEFT
20
15
20
NR
15

The only pertinent clinical evidence from service of record (the claims file documents extensive efforts by the RO to obtain additional service treatment  reports, to include contacting the National Personnel Records Center in March 2008 and the Veteran's National Guard unit in March 2008 and June 2008) are reports from February 2008 audiometric testing at the Veteran's Reserves unit, which demonstrates pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
20
30
30
LEFT
15
25
15
50
25

With respect to the post-service clinical evidence, at an August 2008 VA audiometric examination, the Veteran reported a history of military noise exposure, to include heavy artillery and tanks, during his two period of active service, and a history of noise exposure while serving in the National Guard for  33 years.  He reported no history of significant recreational noise exposure with the only occasional recreational noise exposure from lawnmowers, weed trimmers, power tools, and chainsaws.  The Veteran also described a 10 to 12 years history of constant, bilateral tinnitus.  On audiological testing, pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
25
40
35
65
LEFT
20
25
35
50
55

Speech recognition scores, using the Maryland CNC test, were 92 percent bilaterally.  Normal to moderately severe sensorineural hearing loss bilaterally was diagnosed.  Moreover, such test results demonstrate a current diagnosis of bilateral hearing loss for VA purposes.  38 C.F.R. § 3.385.  Likewise, as indicated previously, tinnitus is a disorder capable of lay observation, and, as such, the Board finds that the Veteran also has a current diagnosis of tinnitus.  See Charles, supra. 

However, the August 2008 VA examiner concluded that it was less likely as not that the Veteran's bilateral hearing loss, and tinnitus, were the result of service.  The rationale for the opinion with respect to hearing loss was the normal hearing shown at separation from service in 1969; the lack of any frequency testing within one year after this period of active duty showing hearing loss had become manifest to a compensable degree; and the lack of any frequency testing from 1969 to 2003 or from shortly after separation from the Veteran's second period of active duty.  As for tinnitus, the rationale for the negative opinion was its reported time of onset.  

Weighed against the negative opinions rendered by the August 2008 VA examiner, which were rendered by an audiologist and not a physician, are positive opinions rendered by a Board-certified physician in otolaryngology, Dr. McQueen, in February 2009.  In this regard, Dr. McQueen noted the Veteran's report that, for the last 15 years, he had progressive worsening of his hearing and ringing in both ears.  Sensorineural hearing loss and tinnitus were diagnosed.  He also observed that the Veteran had a history of noise exposure in the past during his military service in that, for 36 years, he was in/around infantry or aircraft noise.  Dr. McQueen stated that the Veteran's hearing loss was in large part sensorineural and the ringing was likely due to such hearing loss.  He further opined that it was as likely as not that the Veteran's hearing loss and ringing in the ears are due to his years of military experience and noise exposure.    

With respect to the conflicting medical opinions, the adjudication of the Board includes the responsibility of determining the weight to be given to the evidence of record, and this responsibility includes the authority to favor one medical opinion over another.  See Cathell v. Brown, 8 Vet. App. 539, 543 (1996); Owens v. Brown, 7 Vet. App. 429, 433 (1995).  The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion.  See Guerrieri v. Brown, 4 Vet. App. 467 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993).  Factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the claimant's history, and the thoroughness and detail of the opinion.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  Further, a medical opinion is inadequate when it is unsupported by clinical evidence.  Black v. Brown, 5 Vet. App. 177, 180 (1995).  

Given the superior qualifications and training of the examiner who rendered the positive opinions in February 2009, who was identified as a Board-certified physician in otolaryngology, in contrast to those of the examiner who rendered the negative opinions in August 2008, an audiologist, and the fact that the negative opinions relied almost solely on the absence of evidence of in-service hearing loss or tinnitus, or the fact that the lack of in-service evidence does not preclude a grant of service connection for hearing loss (Ledford, Hensley, supra), the Board concludes that the probative weight of the positive and negative medical opinions as to whether the Veteran's current bilateral hearing loss disability and tinnitus related to his in-service noise exposure is in relative balance.  Cathell, Owens, supra; Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and relied on the absence of evidence in the Veteran's service medical records to provide a negative opinion).  Accordingly, the Board resolves all doubt in favor of the Veteran and finds that service connection for bilateral hearing loss and tinnitus is warranted.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra.

ORDER

Service connection for bilateral hearing loss is granted. 

Service connection for tinnitus is granted. 


REMAND

Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's initial rating claim so that he is afforded every possible consideration.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The Board finds that a remand is necessary in order to afford the Veteran a contemporaneous VA examination so as to determine the current nature and severity of his right shoulder disability.  In this regard, the Board observes that he was last examined by VA in August 2008.  Thereafter, in a May 2009 statement, the Veteran indicated that the condition was much worse and submitted a March 2009 private treatment record that reflects complaints of increasing pain in the shoulder and an assessment by his physician that his right shoulder disability presented a severe problem that would result in increasing disability.  Such also reflects atrophy of the infraspinatus and supraspinatus muscles, which was not addressed at the August 2008 VA examination.  Therefore, as the evidence suggests that the Veteran's right shoulder symptomatology may have increased in severity since the August 2008 VA examination and not all symptomatology was addressed at such examination, a remand is necessary in order to schedule him for an appropriate VA examination in order to assess the current nature and severity of such service-connected disability.  See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995).

Additionally, while on remand, the Veteran should be given an opportunity to identify any VA or non-VA healthcare provider who has treated him for his right shoulder disability.  Thereafter, all identified records should be obtained for consideration in his appeal.  

Accordingly, the case is REMANDED for the following action:

1.  The Veteran should be given an opportunity to identify any VA or non-VA healthcare provider who treated him for his right shoulder disability.  After securing any necessary authorization from him, obtain all identified treatment records.  All reasonable attempts should be made to obtain any identified records.  If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file.  The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e).

2.  After obtaining all outstanding treatment records, the Veteran should be afforded an appropriate VA examination in order to determine the current nature and severity of his right shoulder disability.  The claims file, to include a copy of this remand, must be made available to and be reviewed by the examiner.    Any indicated evaluations, studies, and tests should be conducted.

The examiner should identify the nature and severity of all current manifestations of the Veteran's service-connected right shoulder disability.  The examiner should also indicate whether such disability results in any muscle impairment and, if so, the degree of such impairment.  In this regard, the March 2009 private physician's treatment record showing a finding of atrophy of the infraspinatus and supraspinatus muscles should be addressed.  

All opinions offered should be accompanied by a rationale.

3.  After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence.  If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response.

Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations.

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).

This claim 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).



____________________________________________
A. JAEGER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs