Citation Nr: 1328977 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 10-21 189 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for right ear sensorineural hearing loss disability. 2. Entitlement to service connection for tinnitus, to include as secondary to a perforated right eardrum. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran served on active duty from November 1972 to November 1973. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned Veterans Law Judge at a hearing at the RO in October 2012. A transcript of the hearing is of record. When this case was before the Board in April 2013, it was decided in part and remanded in part. At that time the Board also referred the issue of entitlement to service connection for sleep apnea to the originating agency for appropriate action. The record before the Board does not show that the issue has been addressed by the originating agency. Therefore, the issue is again referred to the originating agency for appropriate action. The issue of entitlement to service connection for tinnitus is addressed in the REMAND that follows the ORDER section of this decision. The record before the Board consists of the Veteran's paper claims file and an electronic file known as Virtual VA. FINDING OF FACT Right ear sensorineural hearing loss disability is due, in part, to military noise exposure. CONCLUSION OF LAW The criteria for service connection of right ear hearing loss disability have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claim. In addition, the evidence currently of record is sufficient to substantiate his claim. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012) or 38 C.F.R. § 3.159 (2012). Legal Criteria Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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, or 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. However, that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability, i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above, 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. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis In multiple written statements of record and during his October 2012 hearing, the Veteran has contended that his right ear hearing loss was caused by his exposure to excessive noise while working with explosives during his active duty service. During his hearing before the Board, the Veteran asserted that he first noticed decreased hearing in the late 1970s. The Veteran's DD Form 214 reveals that his military occupational specialty (MOS) was 12A10 (Combat Engineer) with a related civilian occupation of Blaster. Service treatment records are negative for evidence of right ear hearing loss disability as defined by VA. A November 1972 audiogram included in the service enlistment examination report shows that pure tone thresholds, in decibels, for the right ear were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 5 25 15 The November 1973 separation examination report indicates that audiometric testing results were within normal limits (WNL). The Board has considered the Veteran's statements concerning in-service noise exposure as well as his documented duty assignments. 38 U.S.C.A. § 1154(a) (West 2012). The Veteran's reported duties comport with the nature of his MOS and his duty station. There is no evidence of record demonstrating that the Veteran was not exposed to noise from heavy equipment and explosives during active service as asserted. As such, the Board finds the Veteran's report of in-service noise exposure competent and credible evidence. A February 2007 VA otolaryngology treatment record reveals that the Veteran presented for treatment with a history of intermittent drainage from his right ear over the previous "several years." He reported being diagnosed with a right-sided tympanic membrane perforation 15 years earlier, for which he underwent surgery. He also reported subjective decrease in hearing on the right side. After examination, he was assessed with right-sided subjective hearing loss with a history of previous ear surgery. A March 2007 VA audiology treatment record reveals the Veteran's history that he was "unsure" whether he had hearing loss. He reported occasional tinnitus in the right ear. The record notes that the Veteran was positive for "military noise exposure (gunfire), occupational noise exposure (heavy equipment in construction), recent or recurrent ear disease, [and] head trauma (a few times w[ith]out loss of consciousness)" and that his medical history was positive for auditory/vestibular pathway involvement: chronic otitis serous, polysubstance dependence in partial remission, hepatitis C, HTN [hypertension], and mood disorder." The record also shows that the Veteran denied "recreational noise exposure, tinnitus, vertigo, familial history of hearing loss, difficulty with swallowing or speech, changes in taste or smell, or prior use of amplification." Testing revealed mixed hearing loss in the low to mid frequencies, sloping to a moderate-to-severe mixed hearing loss in the high frequencies and a word recognition ability of 84 percent. The examiner determined that the results were consistent with aging, noise-induced cochlear pathology, and middle ear pathology. However, the examiner also found the Veteran's military noise exposure is more likely as not a contributing factor to his hearing impairment. In September 2009, the Veteran was afforded VA audio examination. The record reflects the Veteran's history of military noise exposure from heavy equipment and demolitions with no hearing protection. He further reported post-service occupational noise exposure including working around construction, using forklifts, power tools, and jackhammers for thirty years with hearing protection utilized intermittently. The Veteran indicated that he had surgery on his right ear several years ago for a perforated ear drum. The examiner noted that the service treatment records showed mild hearing loss at 6000 Hz in the Veteran's right ear on enlistment and hearing within normal limits on separation. Testing revealed hearing loss, as defined by VA. Tympanogram in the right ear revealed reduced eardrum compliance in the presence of normal middle ear pressure. After reviewing the Veteran's claims file and examining the Veteran, the examiner diagnosed mild right ear mixed hearing loss, opining that right ear hearing loss and tinnitus were not caused by or a result of unprotected military noise exposure. The rationale provided was that the Veteran had normal hearing bilaterally upon separation from military service to calibrated audiometric testing. A July 2010 VA treatment record reflects findings of hearing loss associated with ear drum perforation, which the Veteran believed was secondary to swimming. A May 2013 VA opinion from an audiologist reveals the determination that the right ear hearing loss was not due to or the result of service. The examiner explained that hearing was within normal limits during and/or shortly following service without evidence of significant auditory threshold shift during service, evidence of acoustic trauma during service, or "a military service period nexus," and there was occupational noise exposure. The examiner found the hearing loss was secondary to the 2007 medical intervention. The Board finds that the evidence of record supports a grant of service connection for right ear hearing loss disability. The Veteran's statements regarding his military noise exposure are credible, and his subsequent right ear hearing loss is consistent with the circumstances, conditions, and hardships of such service despite the lack of an official record of hearing loss during active service. See 38 U.S.C.A. § 1154(b). Moreover, the Board finds the March 2007 positive nexus opinion is probative because the record indicates that the examiner was aware of the other possible causes of the Veteran's hearing loss, to include post-service noise exposure. Although VA audiologists provided opinions dated in 2009 and 2013 against the claim, the Board finds the opinions have limited probative value. The VA examiner audiologists based the opinions primarily on the lack of evidence of hearing loss during service and at separation. VA regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service, however. The Board acknowledges that the 2013 audiologist added that there was, "no evidence of significant auditory threshold shift during service." The separation examination record does not document that there was not any such shift, however: no audiometric findings are reported on the separation examination so it is impossible to compare those results with the results at entry. Weighing all of the evidence, the Board finds that the evidence is at least in equipoise as to whether the Veteran's right ear sensorineural hearing loss is at least in part due to the in-service noise exposure. Accordingly, entitlement to service connection for a right ear sensorineural hearing loss disability is in order. ORDER Service connection for a right ear sensorineural hearing loss disability is granted. REMAND At the October 2012 hearing, the Veteran testified that he underwent three post-service surgical procedures because of a hole in his right ear drum and that his tinnitus began after one of these procedures. He testified in response to a question from his representative that he thought the hole in his right ear drum, "was from the military, but I'm not sure. I can't tell you because I really don't know, but the hole in my ear, after the operation and like I said I had three of those, and after the operation, this last one here at the VA, is when I started noticing the noise." It is not clear to the Board whether the Veteran is attempting to raise the issue of entitlement to service connection for disability of the right ear drum. If he is, this claim should be fully developed and adjudicated before the Board decides the claim for service connection for tinnitus. In the April 2013 remand, the Board directed that RO or the Appeals Management Center (AMC) to undertake appropriate development to obtain the record associated with the reported private surgical treatment for a perforated right eardrum. This was not done. RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the appeal must again be remanded for compliance with the Board's April 2013 remand directives. Accordingly, the case is REMANDED to the RO or the AMC in Washington, D.C. for the following actions: 1. The RO or the AMC should request the Veteran to clarify whether he is seeking service connection for disability of the right ear drum. If the Veteran responds in the affirmative, the RO or the AMC should undertake all indicated development, adjudicate this new issue, and inform the Veteran of his appellate rights with respect to the issue. 2. In any event, the RO or the AMC should undertake appropriate development to obtain all outstanding records pertaining to the claim for service connection for tinnitus, to include the private treatment records associated with right ear surgery in the 1990s. 3. The RO or the AMC should also undertake any other development it determines to be warranted. 4. Then, the RO or the AMC should readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period of time for response. The case should then be returned to the Board for further appellate action, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified but he has the right to submit additional evidence and argument on the matter the Board has remanded. See 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 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. 2013). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs