Citation Nr: 1329401 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 11-01 488 ) DATE ) ) On appeal from the Department of Veterans Affairs Hartford Regional Office in Newington, Connecticut THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for hypertension. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran had active service from January 1964 to January 1967. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2010 rating decision of the Department of Veterans Affairs (VA) Hartford Regional Office (RO) in Newington, Connecticut. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in July 2011; a transcript of the hearing is associated with the claims file. As a procedural matter, the Board notes that the Veteran submitted additional evidence in August 2011, after the RO last considered the claims; however, he waived his right to have the evidence initially considered by the RO. The record before the Board consists of the Veteran's paper claims file and an electronic file known as Virtual VA. The issue of entitlement to service connection for hypertension is addressed in the REMAND that follows the decision below. FINDING OF FACT The Veteran's current bilateral hearing loss disability is related to his active service. CONCLUSION OF LAW Bilateral hearing loss disability was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As a preliminary matter, the Board notes that the Veteran has been provided all required notice. In addition, the evidence currently of record is sufficient to substantiate his claim for entitlement to service connection for bilateral hearing loss disability. 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 (2013). Legal Criteria Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the purposes of applying the laws administered by VA, hearing impairment will be considered to be a disability when the auditory threshold level 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. 38 CFR § 3.385. 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; 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 The Veteran contends that his current hearing loss disability is related to noise trauma in service. Specifically, during a July 2011 hearing before the Board, he testified that he was subjected to excessive noise coincident to his duties as an ammunition specialist delivering ammunition to artillery units while in the United States Armed Forces. He further testified that he was exposed to the firing of weapons without the use of hearing protection, to include machine guns, as well as tanks. He reported that he was exposed to such noise once every three months, and would have difficulty hearing for several days, after each exposure. He asserted that he has had trouble hearing since the end of 1964, subsequent to his initial exposure on the firing range. He also reported that he was exposed to some post-service occupational noise exposure as a tool maker. He explained that while he was mostly confined to a noiseless room, he sometimes had to enter a noisy area without the use of hearing protection. Thereafter, he worked for another company and was not exposed to excessive noise. He asserted that his hearing continued to worsen since the initial onset in service. Additionally, during the aforementioned hearing, the Veteran's spouse testified that she has known the Veteran since high school and before he entered service. She asserted that she first noticed the Veteran's difficulty hearing when he came home from Germany, as he could not hear her. The Veteran's DD Form 214 shows that he had active duty service from January 1964 to January 1967, with no combat service. His occupational specialty included assignment in the artillery squadron with the 41st. The Veteran's service treatment records are negative for complaints or a diagnosis of hearing loss disability. However, the Veteran's December 1966 separation physical examination report shows a threshold shift at 500 through 4000 Hertz, bilaterally, when compared to the January 1964 induction physical examination report. Post-service private treatment records include a July 1992 record which notes the Veteran's complaint of decreased hearing. Subsequent private audiograms dated in June 1997 through June 2007 demonstrate bilateral hearing loss disability, as the Veteran's auditory threshold level in the 4000 Hertz frequency is 40 decibels or greater. A March 2010 private treatment record shows that the Veteran underwent audiological evaluation, including threshold evaluation and speech recognition testing. At the time, the Veteran reported that he had been experiencing hearing loss for the past 40 years, since service. Upon examination, R.L., M.D., diagnosed sensorineural hearing loss. R.L. noted the Veteran's "ballistic exposure" during service. R.L. opined that it "is as least as likely as not" that the Veteran's current sensorineural hearing loss is a result of his acoustic trauma from service. The Veteran was afforded a VA audiological examination in June 2010. He reported that that during his active service, he was exposed to noise while working with ammunition for three years, without the use of hearing protection. The audiogram results in June 2010 were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 30 35 50 60 LEFT 20 30 35 55 55 Speech recognition was 94 percent in the right ear and 94 percent in the left. The June 2010 VA examiner diagnosed bilateral mild to severe sensorineural hearing loss. The examiner indicated that the December 1966 separation physical examination showed hearing sensitivity within normal limits from 500-2000 Hertz and 4000 Hertz, bilaterally. The examiner opined that it "is not likely" that the Veteran's current hearing loss was related to his military noise exposure. Analysis The Board finds that the evidence of record supports a grant of service connection for bilateral hearing loss disability. The Veteran is competent to report that he developed hearing problems in service and that they have continued since service. His wife is also competent to report that she noticed that the Veteran had hearing impairment when he returned from Germany and that hearing impairment continued thereafter. The Board has found the statements of the Veteran and his wife to be credible. It is acknowledged that the Veteran was exposed to acoustic trauma during service, as he served in the artillery squadron with the 41st, where he was exposed to noise from weapons and tanks while delivering ammunition. The Board also finds that the results of the June 2010 VA audiological examination are sufficient to establish the presence of bilateral hearing loss disability during the pendency of the claim. With respect to whether the Veteran's current hearing loss is related to his service, the Board acknowledges that the June 2010 VA examiner opined that the Veteran's current hearing loss disability was not related to his military noise exposure, because the Veteran had normal hearing at separation. The examiners failed to comment on the fact that, while the Veteran's hearing was normal as defined by VA at the time of discharge, it had worsened since entry into service. See January 1964 induction physical examination report and December 1966 separation physical examination report (the separation examination report shows a threshold shift at 500 through 4000 Hertz, bilaterally). The VA examiner also failed to address the Veteran's in- service noise exposure and the credible lay evidence of hearing impairment in service and thereafter. The record also contains the March 2010 medical opinion from the Veteran's private physician that the Veteran's current bilateral hearing loss disability is related to his in- service noise exposure. This opinion is consistent with the lay evidence the Board has found to be credible and with the DD 214 showing that the Veteran served in a position in which excessive noise exposure would be expected. In the Board's opinion, the evidence supportive of the claim is at least in equipoise with that against the claim. Therefore, the Veteran is entitled to service connection for his bilateral hearing loss disability. ORDER Entitlement to service connection for bilateral hearing loss disability is granted. REMAND The Veteran contends that his current hypertension disorder had its onset during service. During the aforementioned hearing before the Board, the Veteran testified that his blood pressure was taken several times upon separation examination, and stated that his final reading was elevated. He further testified that he was treated for hypertension within the first year following his separation from service, to include with medication, and has continued to be treated since that time. He reported that the doctor who he saw immediately after service died, however, and explained that he had been treated by another physician for the past 18 to 20 years. Additionally, the Veteran's spouse testified that when the Veteran came home from service, his face was flushed and he experienced headaches. She further recalled that the Veteran sought treatment for hypertension within the first year after discharge from service. Service treatment records are negative for complaints or a diagnosis of hypertension. The January 1964 induction examination report notes a blood pressure reading of 120/70. The December 1966 separation examination report notes a blood pressure reading of 124/84. Following separation from service, a July 1992 private treatment record notes the Veteran's history of hypertension for the past 14 or 15 years. The physician diagnosed hypertension. A December 2001 private record notes the Veteran's history of hypertension that was controlled with medication. VA's duty to assist a veteran includes obtaining a thorough and contemporaneous examination where necessary to reach a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159. In light of the Veteran's history of an elevated blood pressure reading upon separation examination from service, and the fact that the Veteran has never had a VA examination addressing this claim, the Board finds that the Veteran should be afforded a VA examination addressing the etiology of his hypertension. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should undertake appropriate development to obtain any available, outstanding records pertinent to the Veteran's claim. 2. Thereafter, the RO or the AMC should arrange for the Veteran to be examined by a physician with sufficient expertise to determine the etiology of the Veteran's hypertension. The claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and reviewed by the examiner in conjunction with the examination. Based upon the examination results and the review of the Veteran's pertinent medical history, the examiner should state an opinion as to whether there is a 50 percent or better probability that the Veteran's hypertension originated during service or is otherwise etiologically related to service. The RO or the AMC should ensure that the examiner specifically comments on the Veteran's service treatment records, to include the record of his December 1966 separation physical examination, which notes a blood pressure of 124/84. For purposes of the opinion, the examiner should assume that the Veteran is a reliable historian. The rationale for all opinions expressed must also be provided. If the required opinion cannot be provided, the examiner should explain why. 3. The RO or the AMC should ensure that the Veteran is provided with adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent, must be associated with the record if the Veteran fails to report for the examination. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause may have adverse effects on his claim. 4. The RO or the AMC should also undertake any other development it determines to be warranted. 5. Then, the claim must be readjudicated. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the RO or the AMC should issue to the Veteran and his representative a supplemental statement of the case and afford them the appropriate opportunity for response before the claims file is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs