Citation Nr: 1325607 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 08-27 531 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a right ear hearing loss disability. 2. Entitlement to service connection for a left ear hearing loss disability. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from March 1966 to March 1968. This matter comes to the Board of Veterans' Appeals (Board) from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In January 2013, this matter was last before the Board at which time it was remanded for further development. With respect to the issue adjudicated herein, that development has been completed. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The issues of entitlement to service connection for tinnitus and entitlement to service connection for a left ear hearing loss disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. Also, when this matter was last before the Board, it referred the Veteran's claim for service connection of Addison's Disease for adjudication. A review of the claims file, to include Virtual VA, does not indicate that this claim has been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is once again REFERRED to the AOJ for appropriate action. FINDINGS OF FACT The Veteran's left ear hearing loss clearly and unmistakably existed prior to active military service and did not undergo an increase in severity during active service. CONCLUSION OF LAW Service connection for a left ear hearing loss disability is not established. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1135, 1137, 5103, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. In the notice, VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (2011); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Notice should also address the rating criteria and effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the appellant pre-adjudication notice by a letter dated in July 2005. Although the notice provided did not address either how disability ratings are assigned or the effective date provisions that are pertinent to the appellant's claim, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to the claimed condition. Id. VA has obtained the Veteran's service treatment and VA records, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, and obtained medical opinions as to the etiology of his bilateral hearing loss. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the February 2013 VA audiology examination obtained in this case is adequate with respect to the issue decided herein. It is predicated on a substantial review of the record and medical findings and considered the Veteran's complaints, symptoms and history. Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the service connection issue addressed in this decision has been met. 38 C.F.R. § 3.159(c)(4). VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2012). Service connection may be granted for a disease diagnosed after service discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, 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" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted. The regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service. Hensley v. Brown, 5 Vet. App. 155 (1993). Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record, including that pertinent to service. 38 U.S.C.A. §1110; 38 C.F.R. §§ 3.303 and 3.304; Hensley, 5 Vet. App. at 159-60. Service connection for sensorineural hearing loss may be granted if the disability becomes manifest to a compensable degree within one year following separation from active military service. See 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Hearing loss will be considered to be a disability when the auditory threshold in any of the frequencies is 500, 1000, 2000, 3000 or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 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 (2012). Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment, and was not aggravated by such service. 38 U.S.C.A. § 1111. Regulation provides that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." 38 C.F.R. § 3.304 (b)(1). To rebut the presumption of sound condition for conditions not noted at entrance into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003), 70 Fed. Reg. 23027 (May 4, 2005); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). A pre-existing 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 (West 2002); 38 C.F.R. § 3.306 (2012); Green v. Derwinski, 1 Vet. App. 320 (1991). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 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 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Facts and Analysis A review of the Veteran's service treatment records discloses no complaints of hearing loss. He served as a helicopter mechanic and alleges noise exposure in this capacity, as well as from gunfire, that resulted in bilateral hearing loss. See DD Form 214. Prior to November 1967 service departments consistently used ASA units to record pure tone sensitivity thresholds in audiometric measurement. VA currently uses ISO (ANSI) units. For purposes of comparison between the service audiometric data and more recent VA audiometric data, the tables below show the ASA measurements recorded in service with the comparable ISO (ANSI) measurements in adjacent parentheses. Upon entrance examination in January 1966, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 5 (20) 10 (20) 15 (25) N/A 25 (30) At entrance, the Veteran denied any history of ear trouble, to include running ears and having worn hearing aids. See January 1966 Report of Medical History. Notably, the United States Court of Appeals for Veterans Claims has held that the threshold for normal hearing is from 0 to 20 decibels and higher thresholds indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993) Upon separation examination in January 1968, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 5 -5 20 N/A 25 At separation, he denied any history of ear trouble, as well as running ears and hearing loss. See January 1968 report of Medical History. In July 2010 the Board remanded the claim to obtain a medical opinion an etiological opinion. In August 2010 the Veteran was afforded a VA examination. On the authorized audiologic evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 20 25 35 70 75 Pure tone averages were 51 for the left ear. Speech audiometry revealed speech recognition ability of 94 percent in the left ear. These audiometrics meet VA's requirements for considering hearing loss a disability in the left ear. 38 C.F.R. § 3.385 (2012). The examiner that conducted the examination noted that she had reviewed the Veteran's claims file. At the time of the examination, the Veteran denied any pre-military or recreational noise exposure. He reported a service history of noise exposure consisting of rifle fire and helicopters. Outside of military service, he worked at a paper mill for 40 years and reported that he wore hearing protection in this capacity on a full-time basis. The examiner assessed bilateral hearing loss and noted that the audiograms showed normal hearing in both ears with no significant decrease in hearing. She therefore concluded that the Veteran's hearing loss was not the result of military noise exposure. In January 2013, the Board remanded the claim for service connection of bilateral hearing loss as it found the August 2010 VA examiner's opinion lacking. In particular, the Board sought clarification on whether the Veteran had pre-existing hearing loss of the left ear that was aggravated by service and a new opinion that considered the ASA to ISO (ANSI) unit conversions for his January 1966 entrance examination. In February 2013 the Veteran was afforded a VA examination. The examiner noted that she had reviewed the claims file. On the authorized audiologic evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 25 30 40 70 85 Pure tone averages were 56 for the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the left ear. These audiometrics meet VA's requirements for considering hearing loss a disability of the left ear. 38 C.F.R. § 3.385 (2012). The examiner assessed hearing loss of the left ear. The examiner concluded that hearing loss of the left ear did indeed exist prior to service. She stated that the Veteran had hearing acuity within normal limits from 500 to 2000 Hz with a mild (30BHL) hearing loss at 4000 Hz. She also concluded that the pre-existing hearing loss was not aggravated during service. In this regard, she reasoned that a complete review of the claims file revealed that no significant threshold shift occurred between entrance and separation. Notably, she considered the ASA to ISO (ANSI) conversions for the January 1966 entrance examination in this regard and that the Veteran's hearing acuity from 500 to 4000 Hz on the separation examination was normal. As a hearing loss defect was not noted by the induction examiner in the examination report, the Veteran is presumed sound at entry. However, the Board finds that hearing loss of the left ear clearly and unmistakably pre-existed service. While the VA examiner did not explicitly state that it was clear and unmistakable that the Veteran had pre-existing hearing loss, her statement was nonetheless unequivocal when she reported that the Veteran had mild hearing loss as shown by the audiological testing at 4000 Hz. on the entrance examination. The Board also finds that it is clear and unmistakable that the pre-existing hearing loss was not aggravated during service. A comparison of the audiograms (with the entrance audiogram properly converted to ISO (ANSI) units) does not show any decrease in hearing acuity from 500 to 4000 Hz. Moreover, the VA examiner specifically stated that there were no significant threshold shifts and found no aggravation with respect to the left ear. In fact, she found that hearing was within normal limits at the time of separation. Although the examiner stated that it was not likely that the Veteran's left ear hearing loss was aggravated during service, she unequivocally stated that the Veteran had hearing loss on entering service and that his hearing was within normal limits upon separation examination. Moreover, review of the induction and separation examination reports clearly shows that the Veteran's hearing acuity did not increase in severity. The Veteran reported that he served in combat. He also reported that he had difficulty hearing anything for several days after firing several hundred rounds with the M-16 on the firing range in Vietnam. He is competent to report he was exposed to excessive noise and that he had difficulty hearing thereafter and there is no reason to doubt his credibility in that regard. However, the results of audiological testing at the time of separation clearly and unmistakably indicate that his hearing acuity did not permanently worsen during service. Accordingly, the Board finds that as hearing loss was shown on entrance examination which was no longer present on exit examination, the evidence is clear and unmistakable that pre-existing hearing loss was not aggravated in service. In summary, the Board concludes that the evidence clearly and unmistakably shows that hearing loss of the left ear preexisted the Veteran's period of service and was not aggravated during service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. §§ 3.304, 3.306 (2012); Wagner v. Principi, 370 F. 3d 1089(Fed. Cir. 2004). ORDER Entitlement to service connection for a left ear hearing loss disability is denied. REMAND Regarding the claim for tinnitus, it is noted that the examiner provided a speculative opinion. Before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). However, it is unclear why an opinion could not be provided. Regarding right ear hearing loss, the February 2013 examiner determined that the Veteran had normal hearing on entering service but that his right ear hearing loss was less likely than not incurred in service, due to the fact that the entrance and separation audiograms did not demonstrate any significant threshold shifts in this ear. The opinion does not, however, address whether the Veteran's currently diagnosed hearing loss of the right ear is at least as likely as not attributable to noise exposure in service, irrespective of any threshold shift. Accordingly, this opinion must also be returned. Id. Accordingly, the case is REMANDED for the following action: 1. Refer the claims file to a VA audiologist for an opinion concerning the Veteran's claimed tinnitus and right ear hearing loss. The claims file should be available for review by the audiologist. The audiologist should review the claims file in conjunction with the opinion, giving particular attention to the Veteran's lay assertions regarding noise exposure as well as the pertinent medical evidence. The examiner should note that the claims file has been reviewed. If the audiologist determines that an examination is necessary to provide the opinions, then one should be scheduled. The audiologist should provide an opinion as to whether it is at least as likely as not (a 50 percent or better probability) that tinnitus and right ear hearing loss began in or are attributable to service, particularly due to the Veteran's reported noise exposure therein. Attention is directed to the Veteran's credible reports of exposure to excessive noise in service. He also reports that he had tinnitus in service and thereafter. Any and all opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. The examiner is informed that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. It is noted that the requirements for service connection for hearing loss pursuant to 38 C.F.R. § 3.385 need not be shown by audiometric testing during a claimant's period of active duty in order for the claim to be granted. Ledford v. Derwinski, 3 Vet. App. 87 (1992). Rather, service connection may be granted where there is credible evidence of acoustic trauma due to 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. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Such also applies to tinnitus. 2. After ensuring the opinion is adequate, readjudicate the issues. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order 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). ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs