Citation Nr: 1332449 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 10-33 388 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of right eye cataract surgery, to include vision problems. 4. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of right eye cataract surgery, to include a facial scar. 5. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of right eye cataract surgery, to include a right ankle fracture. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and a friend ATTORNEY FOR THE BOARD H.J. Baucom, Counsel INTRODUCTION The Veteran served on active duty from June 1954 to December 1957. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the RO. In July 2010, the Veteran requested a hearing with the Board to be conducted at the RO. He was scheduled for a hearing in June 2012; however, he requested that the hearing be postponed. In September 2012, the Veteran was informed that his new hearing was to be held in October 2012. He did not report for the October 2012 hearing or provide a written motion showing good cause for his failure to report. Therefore, the Board hearing request is considered withdrawn. See 38 C.F.R. § 20.704(e) (2012). In March 2011, the Veteran testified at a hearing held at the RO before a Decision Review Officer (DRO). In December 2012, the Board remanded the claim for further development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for residuals of right eye cataract surgery, to include additional vision problems, a facial scar, and a right ankle fracture are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran is found to have presented credible lay assertions to show that he had experienced hearing loss and tinnitus that began following his exposure to hazardous noise levels during service. 2. The currently demonstrated bilateral hearing loss disability and tinnitus are shown as likely as not to be due to his exposure to excessive noise levels that began with events that happened during the Veteran's period of active service. CONCLUSIONS OF LAW 1. By extending the benefit of the doubt to the Veteran, his bilateral hearing loss disability is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2013). 2. By extending the benefit of the doubt to the Veteran, his disability manifested by tinnitus is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Letters were sent in January, June and August 2009 which satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any additional private or VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran's Social Security Administration disability determination, and the records considered in that determination were obtained. 38 C.F.R. § 3.159 (c)(2). VA examinations were conducted in May 2009 and February 2013. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The December 2012 Board remand was substantially complied with, as to the issues decided at this time. The VAMC facilities submit all records available since 1989. The VAMC in Fort Wayne, Indiana submitted records from October 1999 to December 2006 and the VAMC in Madison, Wisconsin submitted records from February 2009 to March 2011. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). To the extent that the action taken hereinbelow is favorable to the Veteran, further discussion of VCAA is required at this time. Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Continuous service for 90 days or more during a period of war, or peace time service after December 31, 1946, and post- service development of a presumptive disease, such as organic diseases of the nervous system (sensorineural hearing loss), to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service. See 38 C.F.R. §§ 3.307, 3.309(a). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies 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. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). Even though disabling hearing loss is not demonstrated at separation, a veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence that a current disability is related to service. Hensley v. Brown, 5 Vet. App. 155. The Veteran contends that he has hearing problems due to the exposure to acoustic trauma in service. Specifically, he asserts that his current bilateral hearing loss and tinnitus are the result of his exposure to jet engine noise during a special detail at Chanute Air Force Base after he completed basic training in 1954. He reports being assigned to clean the jet mechanics' area in close proximity to the loud noise from two jet engines running at full power without being issued hearing protection. He reports being unable to hear for approximately two to three days after he was exposed to the increased noise levels. He indicated that he presented to sick call and was told that nothing could be done to help him. During a March 2011 hearing, the Veteran testified that he was exposed to jet engine noise for approximately three to four minutes during this detail in the jet mechanics' area. He reported that his hearing returned three days after the exposure, but he had a loud ringing in his ears "pretty much like it [was] right now." The Board finds that the Veteran's assertions of being exposed to hazardous noise levels and experiencing reduced hearing acuity and tinnitus during his period of active service to be credible. The service treatment records show that the Veteran's hearing was within normal limits upon entry to service and upon exit from service. The May 1954 enlistment examination conducted a whisper voice test which was 15/15 on the right and left. The December 1957 exit examination included a whisper voice test, which was 15/15 in each ear. An audiogram noted results that included the following: HERTZ 500 1000 2000 3000 4000 RIGHT 0(15) 0(10) 0(10) NR 0(5) LEFT 0(15) 5(15) 0(10) NR 10(15) (Prior to October 31, 1967, the service department audiometric tests were in "ASA" units. The figures in parentheses represent the conversion to the current "ISO" units, which is the standard used in 38 C.F.R. § 3.385.) The Veteran testified at the recent hearing that he sought treatment for his hearing loss from a private physician in 1959 in either Kenosha, Wisconsin or Waukegan, Illinois. He also reported that, because the physician was deceased, he was unable to obtain copies of any records referable to this treatment. The Veteran also indicated that he was issued hearing aids at another VA Medical Center in the early 1990's. The earliest VA treatment records in the record date from October 1999. At a June 2000 VA audiological evaluation the Veteran reported having difficulty hearing in group situations and having had loud noise exposure in service. The audiological findings demonstrating a bilateral hearing loss disability for VA purposes per 38 C.F.R. § 3.385 were as follows:. HERTZ CNC 500 1000 2000 3000 4000 RIGHT 5 15 10 15 50 92% LEFT 10 20 20 30 65 92% The treatment notes indicated that hearing aids were ordered in June 2000. In May 2009, a VA examination was conducted when an examiner reviewed the claims file and examined the Veteran. The examiner noted the Veteran's reports of being exposed to jet engine noise without ear protection and not being able to hear for two days after the incident, as well as having had tinnitus, right ear pain, and decreased hearing since that time. The VA examiner also noted that the Veteran had no significant occupational noise exposure and very limited recreational noise exposure after service. The VA examiner opined that the Veteran's hearing loss and tinnitus were less likely as not caused by or a result of military noise exposure. The examiner concluded that, while military noise exposure was conceded, the separation audiometric examination indicated that bilateral hearing acuity was "within normal limits." The VA examiner noted that there was no military documentation of tinnitus or a claim for more than 50 years after service. The examiner added that there had been noise exposure before, during and after military service. The May 2009 VA audiogram results included the following:. HERTZ CNC 500 1000 2000 3000 4000 RIGHT 25 35 35 55 80 64% LEFT 35 45 45 65 80 54% The testing showed that there was bilateral hearing loss disability for VA compensation purposes as defined under 38 C.F.R. § 3.385. In February 2013, a VA examination findings included the following results: HERTZ CNC 500 1000 2000 3000 4000 RIGHT 25 35 30 60 80 84% LEFT 30 40 35 70 80 80% The examiner diagnosed sensorineural hearing loss. The Veteran reported currently having constant tinnitus which he first heard in 1954 in service after exposure to jet engine noise. The examiner reviewed the claims file, examined the Veteran, and opined that the Veteran's hearing loss was not at least as likely as not caused by service. The examiner explained that the Veteran's audiometric testing at separation indicated hearing to be "within normal limits." The VA examiner added that, although the Veteran currently had a high frequency sensorineural hearing loss, Institute of Medicine (IOM) concluded that, based on current knowledge of cochlear physiology, there was no sufficient scientific basis for the existence of delayed onset hearing loss. Based on current knowledge of acoustic trauma and the instantaneous or rapid development of noise-induced hearing loss, it was noted that there was no reasonable basis for delayed-onset hearing loss. The examiner referred to a study identified as: The Noise and Military Service-Implications for Hearing Loss and Tinnitus, Institute of Medicine, National Academy of Sciences, 2006. The VA examiner also opined that the Veteran's tinnitus was less likely than not caused by or the result of the service noise exposure. The examiner explained that the Veteran was claiming subjective tinnitus, which he did not report at separation. Also, the examiner noted that he had a significant history of noise exposure with civilian employment and recreational activities over a period of years. Therefore, the examiner concluded it was less likely as not that the tinnitus was due to service, but more likely due to presbycusis and/or some other etiology. Here, the Veteran is competent to report experiencing a decrease in hearing acuity and tinnitus during service, and his lay assertions are found to be credible for the purpose of linking the onset of his hearing problems to the exposure to excessive noise levels during active service. Moreover, the Veteran has reported seeking medical attention for his hearing problems shortly after service While the VA examiners have opined that it was less likely than not that the current hearing loss disability and tinnitus were due to noise exposure during service, the Board assigns these opinions limited probative value because neither assessed full weight to the Veteran's credible lay statements of having had these problems since being exposed to excessive noise during his period of active service in light of the evidence of record. To the extent that each relied on the audiometric testing at the time of the service exit examination in 1957 to conclude that the Veteran's hearing was "within normal limits," the Board finds the recorded testing results alone are not sufficient for the purpose of ruling out the presence of hearing loss at that time and discounting the probative weight of the credible lay assertions. Accordingly, on this record, the Board finds the evidence to be in relative equipoise in showing that the current bilateral hearing loss disability and tinnitus as likely as not are due to the Veteran's exposure to hazardous noise levels that began with his duties during his period of active service. In resolving all reasonable doubt in the Veteran's favor, service connection is warranted. ORDER Service connection for bilateral hearing loss disability is granted. Service connection for tinnitus is granted. REMAND The Board finds that the recent VA examination did not comply with the December 2012 remand instructions as certain questions were not addressed by the VA examiner. Hence, further action is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The specific medical questions which need to be addressed are outlined hereinbelow. Accordingly, these remaining matters are REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. The RO should take all indicated steps in order to obtain an addendum from the VA examiner who conducted the February 2013 examinations, if available. If not available, another qualified medical professional is asked to review the claims file and provide answers to the following questions: (A) Does the Veteran have additional right eye disability (vision impairment) that is due to the April 2008 cataract surgery? Specifically, in answering this question, the VA examiner should address the medical significance of the September 2009 diagnoses of sulcus intraocular lens, right eye status post complicated phacoemulsification with anterior capsule dehiscence; anisometropia, and nuclear sclerotic cataract, left eye, and the Veteran's current complaints of double vision. The VA examiner should compare the Veteran's condition immediately before the surgical treatment to the his current condition after such care or treatment was rendered to determine whether a veteran has such a disability due to VA medical care. 38 C.F.R. § 3.361(b). (i) If so, was the proximate cause of any additional eye disability (vision impairment) due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment? (a) Did VA fail to exercise the degree of care that would be expected of a reasonable health care provider? (b) Did VA furnished the hospital care, medical or surgical treatment without the Veteran's (or, in appropriate cases, the veteran's representative's) informed consent? (ii) If not, what was the proximate cause of the additional disability (vision impairment)? (iii) Was any additional eye disability (vision impairment) due to an event that was not reasonably foreseeable? The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of § 17.32. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly state this and provide an explanation as to why an opinion cannot be made without resorting to speculation. 2. After completing all indicated development, the RO should readjudicate the claims remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs