Citation Nr: 1326465	
Decision Date: 08/20/13    Archive Date: 08/26/13

DOCKET NO.  11-16 190	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUES

1.  Entitlement to service connection for left ear hearing loss.

2.  Entitlement to a compensable evaluation for the period prior to June 7, 2010, and in excess of 10 percent disabling, for the period beginning June 7, 2010, for right ear hearing loss.

3.  Entitlement to a total disability compensation rating based on individual unemployability due to service-connected disability (TDIU).


ATTORNEY FOR THE BOARD

Robert J. Burriesci, Counsel





INTRODUCTION

The Veteran had active military service from July 1979 to January 1993.  However, the Regional Office (RO) has determined only the Veteran's service from July 1979 to April 26, 1988, is honorable for VA purposes. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) RO in Louisville, Kentucky.

In July 2010 a VA examiner noted that the Veteran's hearing loss had significant effects on the Veteran's occupation.  In May 2011 the Veteran reported that he lost his job about three years prior due to multiple medical problems.  As such, the issue of entitlement to a TDIU before the Board.  Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009)

The issues of entitlement to a compensable evaluation for the period prior to June 7, 2010, and in excess of 10 percent disabling, for the period beginning June 7, 2010, for right ear hearing loss, and entitlement to a TDIU 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.


FINDING OF FACT

The Veteran has left ear hearing loss for VA compensation purposes which is related to service.


CONCLUSION OF LAW

The criteria for service connection for left ear hearing loss have been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

As the disposition herein reached is favorable to the appellant, the need to discuss further the VA's efforts to comply with its duties to notify and assist is obviated. 

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection generally requires credible and competent evidence showing: (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.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995).

Under 38 C.F.R. § 3.385, 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.

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  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); see also Jandreau, 492 F.3d at 1376-77. 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit  (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).

Service records reveal that the Veteran served as an Aircraft Machinist and the Veteran's DD 214 reveals that his Military Occupational Specialty (MOS) was Aircraft Metals Technician Specialist.  Service treatment records reveal that the Veteran's hearing was followed with a conservation program.  

Based upon the Veteran's MOS, the RO in October 2010 conceded that the Veteran was exposed to noise in service.

In July 2010 the Veteran was afforded a VA medical examination.  The Veteran reported that he had bilateral hearing loss and that it gradually worsened since leaving the military.  The Veteran indicated that he was an aircraft machinist in service and spent eight years working on the flight line.  He reported that he wore hearing protection during this time.

After physical examination the Veteran was diagnosed with hearing within normal limits from 250 Hertz through 500 Hertz, mild sensorineural hearing loss at 1000 Hertz, hearing within normal limits at 2000 Hertz through 3000 Hertz, mild sensorineural hearing loss at 4000 Hertz, moderately severe sensorineural hearing loss at 6000 Hertz, and moderate sensorineural hearing loss at 8000 Hertz.  However, audiological examination did not reveal left ear hearing loss pursuant to 38 C.F.R. § 3.385.

The examiner stated that when the Veteran first entered the military an audiogram reviewed showed hearing to be within normal limits.  Subsequent audiograms while in service began to show a mild hearing loss at 3000 hertz.  The Veteran was noted to have been exposed to high levels of loud noise by working close to aircraft for several years.  The examiner rendered the opinion that although the Veteran reported that he did wear hearing protection while on the flight line, due to multiple exposures of excessive noise his bilateral hearing loss would be at least as likely as not a result of military noise exposure.  The examiner stated that some degree of the Veteran's current hearing loss was noted to likely be related to Meniere's Disease; however, the mild hearing loss originally documented in his service records was indicated to be at least as likely as not related to his military service.

Subsequently, in November 2010 the Veteran underwent audiological testing that revealed a left ear hearing loss disability pursuant to 38 C.F.R. § 3.385.  

As the Veteran currently has a left ear hearing loss disability pursuant to 38 C.F.R. § 3.385 etiologically related to the Veteran's exposure to loud noise in service, service connection for left ear hearing loss is granted.


ORDER

Service connection for left ear hearing loss is granted.

REMAND

As a result of the Board's decision to grant service connection for left ear hearing loss, the yet to be assigned initial evaluation and effective date for this disability will impact on the Veteran's claim for an increased initial rating for right ear hearing loss.  The Board cannot adjudicate that issue until the initial evaluation and effective date are assigned for the Veteran's left ear hearing loss.  These issues to be inextricably intertwined.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).  

As noted above, the Veteran has reported that he lost his job due to multiple medical problems and a VA examiner has indicated that the Veteran's hearing loss has a significant impact on the Veteran's occupation.  The Board notes that the examiner in July 2010 did not render an opinion regarding whether the Veteran is unemployable due to his service connected disabilities.  As such, the Board finds it necessary to afford the Veteran a VA medical examination regarding whether his service-connected disabilities render him unemployable.  See Friscia v. Brown, 7 Vet. App. 294 (1994).

The Veteran currently does not meet the minimum percentage requirements for a TDIU set forth in 38 C.F.R. § 4.16(a).  Even when the percentage requirements of 38 C.F.R. § 4.16(a) are not met, a TDIU may be granted on an extraschedular basis in exceptional cases when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service connected disability.  38 C.F.R. §§ 3.321(b), 4.16(b) (2012).  The Board cannot award TDIU on this basis in the first instance.  Bowling v. Principi, 15 Vet. App. 1, 10 (2001).  If the VA examiner determines that the Veteran's service-connected disabilities render the Veteran unemployable, the matter of entitlement to a TDIU must be submitted to the Director of the Compensation and Pension Service for extraschedular consideration.

Review of the claims file reveals a notation that the Veteran applied for and was denied Social Security Administration (SSA) benefits.  Because SSA records are potentially relevant to the Board's determination, VA is obliged to attempt to obtain and consider those records.  38 U.S.C.A. § 5103A(c)(3); 38 C.F.R. § 3.159(c)(2); see Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010); Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009).  Therefore, on remand attempts must be made to obtain any SSA records regarding the Veteran.

Since the claims file is being returned it should be updated to include VA treatment records compiled since June 2011.  See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992).

Accordingly, the case is REMANDED for the following action:

1.  Effectuate the grant of service connection for left ear hearing loss.  

2.  Provide the Veteran with adequate notice with respect to his claim of entitlement to TDIU. 

3.  Obtain the names and addresses of all medical care providers who treated the Veteran for hearing loss since June 2011.  After securing the necessary release, obtain these records, including any VA medical records.

4.  Request, directly from the SSA, complete copies of any determination on a claim for disability benefits from that agency, together with the medical records that served as the basis for any such determination.  All attempts to fulfill this development should be documented in the claims file.  If the search for these records is negative, that should be noted and the Veteran must be informed in writing.

5.  After completion of the foregoing, schedule the Veteran for an appropriate VA examination regarding the Veteran's claim of entitlement to a TDIU.  The claims folder should be made available to and reviewed by the examiner.  All appropriate tests and studies should be conducted.  Thereafter, the examiner should opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected disabilities (bilateral hearing loss and tinnitus), either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation.  A complete rationale for any opinion expressed and conclusion reached should be set forth in a legible report.

6.  Thereafter, if and only if the VA examiner determines that the Veteran's service-connected disabilities render him unemployable, refer the Veteran's claim of entitlement to a TDIU to the Under Secretary for Benefits or the Director of Compensation and Pension Services for consideration of assignment of a TDIU on an extra-schedular basis.

7.  If any benefits sought on appeal are not granted, issue a supplemental statement of the case and provide the Veteran and his representative an opportunity to respond.

The appellant has the right to submit additional evidence and argument on the 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).



______________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs