Citation Nr: 1326811 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 11-14 915A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a hearing loss disability of the right ear. 2. Entitlement to service connection for a hearing loss disability of the left ear. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from April 1969 to April 1971. These matters come to the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision that denied service connection for bilateral hearing loss and for tinnitus. The Veteran timely appealed. Consistent with the evidence of record, the Board has recharacterized the issues on appeal as shown on the title page of this decision. Lastly, in addition to reviewing the Veteran's paper claims file, the Board has surveyed the contents of his Virtual VA file. The issues of service connection for a hearing loss disability of the left ear and for tinnitus 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 It is at least as likely as not that a hearing loss disability of the right ear had its onset in service. CONCLUSION OF LAW A hearing loss disability of the right ear was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veterans Claims Assistance Act of 2000 (VCAA) is not applicable where further assistance would not aid the Veteran in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that 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). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the Veteran in substantiating his claim for service connection for a hearing loss disability of the right ear. II. Analysis Service connection is awarded for disability that is the result of a disease or injury in active service. 38 U.S.C.A. §§ 1110, 1131. Service connection requires 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For the purposes of applying VA laws, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. In this case, the Veteran contends that he was exposed to acoustic trauma during advance infantry training, when a demolition pit explosion went off within three feet of him; and that he could not hear at the time because of the intense ringing. He described an extreme concussive force that shook his whole body, and indicated that he was dazed for a minute. He later was diagnosed with sensorineural hearing loss of the right ear. The Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). Audiometric testing at the time of the Veteran's induction examination in June 1968 revealed normal hearing, bilaterally. Pure tone thresholds, in decibels (ASA units converted to ISO units), for the right ear were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 15 0 (The Board notes that in cases where American Standards Association (ASA) units have been recorded, they are converted to International Standards Organization (ISO) units for proper comparison.) The Veteran underwent audiometric testing at the time of his separation examination in January 1971. Although no hearing loss disability was noted, pure tone thresholds, in decibels (ASA units converted to ISO units), for the right ear were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 25 10 30 30 In March 2008, the Veteran's wife recalled the Veteran saying that he had been near loud explosions during training exercises in active service, which caused his hearing problems; and that his hearing problems continued to worsen since then. VA audiometric testing in April 2008 reflects that the Veteran currently has sensorineural hearing loss of the right ear, which meets the criteria of 38 C.F.R. § 3.385. Speech audiometry revealed speech recognition ability of 96 percent in the right ear. Pure tone thresholds, in decibels, for the right ear were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 15 65 65 In April 2008, the VA audiologist opined that the Veteran's hearing impairment was not caused by or a result of noise exposure during active service. The audiologist reasoned that the Veteran's entry and separation audiograms were within normal limits. It does not appear that the audiologist considered the converted units of the January 1971 separation examination. In June 2009, the Veteran explained that his post-service work involved working in the woods and setting choker cables, which was not very noisy. He also worked as a laborer outdoors. The Veteran reported wearing hearing protection when he worked around heavy equipment, and reported that he worked in an enclosed cab. He also was required to wear hearing protection all the time when he worked in the mill. The Veteran contended that none of his post-service occupations was as loud as the Army noise and demolition pit explosion. The Board finds the Veteran's lay statements to be credible for purposes of establishing an incident of acoustic trauma in active service. His statements are consistent with his service treatment records which reflect right ear hearing impairment at separation. In Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), the Federal Circuit Court indicated that, where lay evidence provided is competent and credible, the absence of contemporaneous medical documentation during service or since, such as in treatment records, does not preclude further evaluation as to the etiology of the claimed disorder. And the Veteran, even as a layman, is competent to proclaim that he was exposed to acoustic trauma in training exercises as a light weapons infantryman during active service. Here, the Veteran is competent to report what occurred in service because his statements regard his first-hand knowledge of a factual matter. He also reported hearing difficulties after active service. This is further corroborated by his wife's statement, and by the VA audiologist in 2008. The Board finds the Veteran's and his wife's lay statements concerning difficulty hearing are not only competent, but also are credible, to show that the Veteran has continued to suffer from progressively worsened difficulty hearing post-service. Their lay statements, therefore, have probative value. See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Accordingly, as the Veteran was exposed to acoustic trauma in active service and there is lay evidence of continuity of difficulty hearing after his discharge, as well as a current diagnosis of sensorineural hearing loss of the right ear, service connection is warranted. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Certainly then, when considering their competent and credible lay statements with the medical evidence substantiating the Veteran's claim, and resolving all reasonable doubt in the Veteran's favor, the Board finds that sensorineural hearing loss of the right ear had its onset in active service. See 38 C.F.R. § 3.102 (2012). ORDER Service connection for a hearing loss disability of the right ear is granted. REMAND VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a) (2012); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person 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 (Fed. Cir. 2009). Hearing Loss Disability of the Left Ear, and Tinnitus The Veteran contends that service connection for a hearing loss disability of the left ear, and for tinnitus is warranted on the basis that he was exposed to acoustic trauma during advance infantry training, when a demolition pit explosion went off within three feet of him. He indicated that he could not hear at the time because of the intense ringing, and that the ringing never went away. His Form DD214 reflects the Veteran's occupational specialty as a light weapons infantryman. The Veteran reported that his hearing loss had deteriorated post-service, and he also described using hearing protection post-service. As noted above, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington, 19 Vet. App. at 368. Audiometric testing at the time of the Veteran's induction examination in June 1968 revealed normal hearing, bilaterally. Pure tone thresholds, in decibels (ASA units converted to ISO units), for the left ear were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 30 10 5 5 10 Audiometric testing at the time of the Veteran's separation examination in January 1971 revealed normal hearing in the left ear. Pure tone thresholds, in decibels (ASA units converted to ISO units), for the left ear were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 30 25 20 20 25 Private treatment records, dated in May 1982, show complaints of recurrent "ringing sensation" in both ears. The assessment at that time was inner ear disturbance. VA audiometric test results in April 2008 reveal data most consistent with high frequency sensorineural hearing loss of the left ear. Evidence of a current hearing loss disability-i.e., one meeting the requirements of 38 C.F.R. § 3.385-and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In April 2008, a VA audiologist opined that the Veteran's hearing impairment and tinnitus were not caused by or a result of noise exposure during active service. The audiologist reasoned that the entry and separation examinations showed hearing within normal limits. It is very unclear whether the medical opinion of record included consideration of the Veteran's lay statements of onset in service, to include his reported exposure to acoustic trauma during advance infantry training, when a demolition pit explosion went off within three feet of him. It is also unclear whether the audiologist considered the converted units of the entry and separation examinations. Given the likelihood that the Veteran had significant in-service exposure to acoustic trauma during training exercises as a light weapons infantryman, an examination is needed to determine whether the Veteran's current hearing loss disability of the left ear and/or tinnitus either had their onset during service or are related to his active service-to specifically include in-service exposure to acoustic trauma during advance infantry training from a demolition pit explosion, as alleged; or if the disabilities are otherwise related to his active service. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4) (2012). Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA audiology examination to identify all current disability underlying the Veteran's current complaints of tinnitus and hearing loss; and to obtain information as to the current nature and likely etiology of any current tinnitus and hearing loss disability of the left ear. All appropriate tests and studies (to include audiometric testing) should be accomplished, and all clinical findings should be reported in detail. The examiner should specifically indicate whether the Veteran currently has hearing loss in the left ear to an extent recognized as a disability for VA purposes (i.e., has an auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz of 40 decibels or greater; or an auditory threshold for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 hertz of 26 decibels or greater; or speech recognition scores using the Maryland CNC Test of less than 94 percent). Based on the examination and review of the record, the examiner should offer opinions as to whether it is at least as likely as not (50 percent probability or more) that any such hearing loss disability of the left ear or tinnitus had its onset in service, or is the result of disease or injury incurred during service-to specifically include in-service exposure to acoustic trauma from a demolition pit explosion during training exercises, as credibly reported by the Veteran. If other causes are more likely, those should be noted. The examiner's attention is directed to the service treatment records, including the converted units of the January 1971 separation examination (which are set forth below), and the Veteran's lay statements. HERTZ 500 1000 2000 3000 4000 LEFT 30 25 20 20 25 The examiner is asked to explain the reasons behind any opinions offered. The examiner is also reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The Veteran's claims file, to include a complete copy of this REMAND, must be provided to the examiner designated to examine the Veteran, and the examination report should note review of the file. 2. After ensuring that the requested actions are completed, the RO or AMC should re-adjudicate the claims on appeal. If the benefits sought are not fully granted, the RO or AMC must furnish a SSOC, before the claims file is returned to the Board, if otherwise in order. No action is required of the Veteran and his representative until they are notified by the RO or AMC; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claims. 38 C.F.R. § 3.655 (2012). The Veteran 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). These claims 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). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs