Citation Nr: 1324570 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 09-37 030A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for right ear hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active duty from February 1966 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In August 2012, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge, sitting at the RO. A transcript of that hearing is of record. The instant matters were previously before the Board in December 2012, at which time there were remanded for further development. The claims were readjudicated by the agency of original jurisdiction (AOJ) via a June 2013 supplemental statement of the case (SSOC) and the Veteran requested that the matter be immediately returned to the Board. (The decision below addresses the issue of entitlement to service connection for left ear hearing loss. The issues of entitlement to service connection for right ear hearing loss and tinnitus are addressed in the remand that follows the Board's decision.) FINDING OF FACT The Veteran's left ear hearing loss pre-existed military service and did not chronically worsen therein. CONCLUSION OF LAW The Veteran does not have left ear hearing loss that is the result of disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO received the Veteran's claim from which this appeal stems in June 2007. In July 2007, the RO sent to him a letter notifying him of the evidence required to substantiate his claim. Specifically, the letter informed him that the evidence must show, among other things, that he suffered an injury in service or had a disease that began in service or was made worse during his military service. The letter advised the Veteran of the information already in VA's possession and the evidence that VA would obtain on his behalf, as well as of the evidence that he was responsible for providing to VA, to include private medical evidence. The RO further advised the Veteran on the types of evidence he could submit that would support his claim for service connection, such as evidence of medical treatment during service, statements from service personnel, and statements from those who knew of his disability during service. The letter also included the notice elements required by Dingess for how VA determines disability ratings and effective dates. The Veteran has not disputed the contents of the VCAA notice. Further, the Board finds that the July 2007 notice letter complies with the requirements of 38 U.S.C.A. § 5103(a), and afforded the Veteran a meaningful opportunity to participate in the development of his claim. Thus, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied. Regarding the duty to assist, the Board is satisfied that the duty to assist requirements under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c) were satisfied. All available evidence pertaining to the Veteran's claim has been obtained. The evidence includes his service treatment records (STRs), service personnel records, VA treatment records, VA examination reports, and statements from the Veteran. In this regard, the Board notes that the matter decided herein was previously remanded for the AOJ to obtain the Veteran's service personnel records, which he alleged should include a signed waiver document evidencing details and consideration of his hearing impairment at that time. Although the Veteran's service personnel records were obtained on remand, no such waiver is included among them. However, as the Veteran's entire personnel file was requested, the Board finds that the terms of its earlier remand have been complied with and that another remand is not warranted as it is indicated that all available records were supplied. Further, the Veteran has been afforded a VA examination in connection with the claim decided herein. A review of the examination reports reveals that the audiologist reviewed the claims folder and considered the relevant evidence of record before expressing an opinion regarding the Veteran's left-ear hearing loss. The Board thus finds that the Veteran has been afforded an adequate VA examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). II. Analysis It is well established that every veteran will be presumed to have been in sound condition when examined, accepted and enrolled for service except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto. 38 U.S.C.A. § 1111 (West 2002). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b) (2012). Here, the Veteran's January 1966 entrance examination report reflects that the Veteran entered active service with an identified left ear hearing loss per audiological testing during his entrance medical examination. In particular, the Veteran's auditory threshold at 4000 hertz in the left ear was recorded to be 65 decibels, when converted to an ISO standard. See 38 C.F.R. § 3.385 (2012) (providing that 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). Defective hearing was also listed under the summary of defects and diagnoses. Accordingly, the Board finds that it is noted that left ear hearing loss existed prior to acceptance and enrollment for active military service. See Crowe v. Brown, 7 Vet. App. 238, 245 (1994); 38 C.F.R. § 3.304. Therefore, the presumption of sound condition does not apply in this case. 38 U.S.C.A. § 1111. The Veteran may, however, seek service connection on the basis of aggravation of a pre-existing condition. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir 2004) (concluding that "if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder."). A pre-existing disease or injury will be considered to have been aggravated by military 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 (West 2002); 38 C.F.R. § 3.306(a) (2012). It is the veteran who bears the burden of establishing aggravation under 38 U.S.C.A. § 1153. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed.Cir.1994). In other words, the Veteran must submit, or the record must contain, some evidence demonstrating that the pre-existing disability increased in severity during service for the presumption of aggravation to attach. See Wagner, supra; Verdon v. Brown, 8 Vet. App. 529, 538 (1996) (stating that the question of whether a preexisting defect or injury underwent an increase in severity "must be answered in the affirmative before the presumption of aggravation attaches."). Once the presumption attaches, it may be rebutted only by clear and unmistakable evidence. See Cotant v. Principi, 17 Vet. App. 116, 123-30 (2003); 38 C.F.R. § 3.306(b). At the outset, the Board notes that the Veteran has testified that his pre-existing left ear hearing loss worsened in service. The Board does not question the competency of the Veteran to report on the severity of symptoms such as diminished hearing in service. See Barr, 21 Vet. App. at 307 (stating the "[l]ay testimony is competent . . . to establish the presence of observable symptomatology). Here, however, the relevant inquiry turns on whether there was chronic worsening of the Veteran's left ear hearing loss, "as distinguished from the mere recurrence of manifestations of the pre-service condition." See Davis v. Principi, 276 F.3d. 1341, 1346-46 (Fed. Cir. 2002) ("[E]vidence of temporary flare-ups symptomatic of an underlying preexisting condition, alone, is not sufficient for a non-combat veteran to show increased disability under 38 U.S.C.[A.] § 1153 unless the underlying condition is worsened."). The Board finds that whether the Veteran's left-ear hearing underwent a chronic worsening in service is a medical determination that the Veteran, as a lay person without the appropriate medical training and expertise, is not competent to render an opinion on. See Jandreau v. Nicholson, 492 F.3d 1372, 1374-75 (Fed. Cir 2007); Espiritu v. Derwinski, 2 Vet. App. 492 (1992); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Turning to the medical evidence of record, relevant audiological test results show an improvement in the Veteran's hearing acuity in his left ear during service. Indeed, the Veteran's April 1969 separation audiogram fails to evidence left-ear hearing loss for purposes of VA benefits and the Veteran's auditory threshold at 4000 hertz in the left ear was recorded to be 30 decibels at that time. Further, upon review of the Veteran's service treatment records, a VA examiner concluded that any in-service noise exposure did not exacerbate the Veteran's hearing loss, based upon the audiogram findings at separation. A review of the Veteran's post-service treatment records also fails to reveal any evidence that the Veteran experienced a chronic worsening during service of the underlying pre-existing left ear hearing loss. Upon a review of the medical evidence of record, the Board finds that there is no evidence demonstrating that the Veteran's pre-existing left-ear hearing loss chronically worsened (i.e., underwent a permanent increase in the underlying pathology beyond the natural progression) during his military service. Although the Veteran believes his hearing worsened during service, the evidence demonstrates otherwise. Accordingly, the Board finds that the evidence clearly and unmistakably shows that there was no aggravation of the underlying disability during service. Because the Veteran's left ear hearing loss was noted to have pre-existed his active military service, and was not aggravated therein, the Board finds that the Veteran's claim for service connected aggravation of a pre-existing left ear hearing loss must be denied. See 38 C.F.R. §§ 3.303, 3.304, 3.306; see also Wagner, supra. ORDER Service connection for left-ear hearing loss is denied. REMAND The Veteran's claims of service connection for right ear hearing loss and tinnitus were previously before the Board in December 2012, at which time they were remanded for further development. Specifically, the Board directed the AOJ to return the claims folder to the VA audiologist who provided a March 2008 audiological opinion for an addendum opinion concerning the Veteran's claimed right ear hearing loss. The Board noted that the audiologist's opinion that military noise exposure did not contribute to the Veteran's current hearing loss was not supported by an adequate rationale. The audiologist was thus requested to review her examination report and its findings as well as the evidence of record, to include the Veteran's August 2012 hearing testimony, and provide an addendum medical opinion as to whether the Veteran's current right ear hearing loss is related to his period of active service, which opinion was to be supported by a complete rationale. In February 2013, the Veteran's claims folder was referred to the VA audiologist who had previously examined him for the requested addendum opinion. The audiologist, however, simply reiterated her previous opinion, adding only that the Veteran's separation audiogram revealed normal hearing in the right ear. The United States Court of Appeals for Veterans Claims (Court) has held that a remand by the Board confers on a veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA "a concomitant duty to ensure compliance with the terms of the remand." Stegall v. West, 11 Vet. App. 268, 270 (1998). The Court has indicated, additionally, that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, "the Board itself errs in failing to insure compliance." Id. Moreover, the Court has held that once VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr, 21 Vet. App. at 312; 38 C.F.R. § 3.159(c)(4) (2012). In the instant case, because the addendum opinion does not contain any support for the audiologist's previously rendered opinion, to include a discussion of why delayed onset hearing loss might weight against a finding that such hearing loss was related to service, the VA audiologist's opinion is incomplete and not supported by an adequate rationale and another remand is required. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); Stegall, supra; 38 C.F.R. § 4.2 (2012) (if an examination report does not contain sufficient detail, "it is incumbent upon the rating board to return the report as inadequate for evaluation purposes."). On remand, the AOJ should again refer the matter to the VA audiologist who previously examined the Veteran for another addendum opinion, based upon a review of the claims folder, regarding the likelihood that the Veteran's right ear hearing loss and/or tinnitus is related to service, to include the Veteran's alleged acoustic trauma. Accordingly, the case is REMANDED to the AOJ for the following action: 1. The claims folder, and a copy of this remand, must be provided to and reviewed by the VA audiologist who conducted the March 2008 audiological opinion for an additional addendum opinion that provides an extended rationale for her opinion regarding the etiology of the Veteran's right ear hearing loss and tinnitus. The audiologist must review the Veteran's testimony provided during his August 2012 Board hearing regarding his diminished hearing and ringing in his ears during service and should also specifically consider the impact of the Veteran's reported in-service noise exposure, as well as any noted post-service noise exposure. The audiologist should then provide an addendum opinion as to whether the Veteran's current right ear hearing loss and tinnitus is at least as likely as not related to service. In so concluding, the audiologist must take into consideration the lay statements of record concerning the onset and continuity of symptoms. If the audiologist finds that delayed onset hearing loss weighs against a finding that such hearing loss is traceable to military service, the audiologist must provide specific reasons for any such finding. The audiologist should also comment on the impact of any post-service noise exposure on the Veteran's current right ear hearing loss. Regardless of whether the audiologist's opinion as to any question is favorable or negative, the audiologist must provide support for her opinion(s). This includes reference to lay or medical evidence contained in the claims folder, if appropriate, or to known medical principles relied upon in forming her opinion. If the audiologist determines that an opinion cannot be provided without resorting to speculation, the audiologist should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted regarding the etiology of any diagnosed disorder or whether additional testing or information could be obtained that would lead to a conclusive opinion. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the audiologist should be undertaken so that a definite opinion can be obtained.) (If the audiologist is no longer available, the claims folder should be forwarded to another VA audiologist to answer the questions set forth above. If another examination is required to formulate an opinion, another examination should be scheduled in order for the questions to be answered.) 2. After undertaking any other development deemed appropriate, the AOJ should re-adjudicate the issue on appeal. If the benefit sought is not granted, the appellant should be furnished with a supplemental statement of the case (SSOC) and afforded an opportunity to respond before the record is returned to the Board for further review. Thereafter, the case should be returned to the Board for further appellate review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until he is notified. The appellant 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs