Citation Nr: 1333782 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 11-31 817 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for right ear hearing loss. 3. Entitlement to service connection for tinnitus, to include as secondary to bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from November 1961 to November 1963 and he had subsequent service in the Army National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the St. Louis RO. Review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. As additional development is needed, the issues of service connection for right ear hearing loss and tinnitus addressed in the REMAND portion of the decision below are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's current left ear hearing loss at least as likely as not had its onset during active service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, left ear hearing loss was incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). It is unnecessary to discuss whether there was compliance with VCAA since any deficiency would be considered non-prejudicial given the favorable outcome below. Legal Criteria and Analysis Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when 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 entitlement to direct service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or at least has at some point since the filing of the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service incurrence may be presumed for some chronic disorders, including a sensorineural hearing loss (SNHL) when demonstrated to a compensable degree within one year following separation from service (see 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309). The threshold for normal hearing is from 0 to 20 decibels at the tested frequencies of 500, 1000, 2000, 3000, and 4000 Hertz , and a higher threshold level indicates some degree of hearing impairment, but not necessarily a hearing loss disability under 38 C.F.R. § 3.385. Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (citing as authority Current Medical Diagnosis and Treatment, 110-11 (Stephen A. Schroeder et al. eds. (1988)). 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 these 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 determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). VA must give due consideration to all pertinent medical and lay evidence in a case where a veteran is seeking service connection. 38 U.S.C.A. § 1154(a). The record does not show and the Veteran does not assert that he was in combat, and the combat provisions of 38 U.S.C.A. § 1154(b) (West 2002) do not apply. The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed.Cir.2000) ("Fact-finding in veterans cases is to be done by the Board")). 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 Veteran. 38 U.S.C.A. § 5107(b). The Veteran contends his hearing loss is related to acoustic trauma in service due to his military occupational specialty (MOS) of wheeled vehicle mechanic. Given the amount of noise he was likely exposed to working on and around trucks and other vehicles on a daily basis, his noise exposure is conceded. The Veteran's service enlistment examination in August 1961 shows he was only given the whispered and spoken voice tests, which were 15/15; this testing in inadequate to precisely determine the level of hearing but sufficient to show it was within normal limits. On his September 1963 separation examination, audiometry testing was conducted and noted in the examination report. Since service department records prior to October 31, 1967 used the American Standards Association (ASA) unit and the Veteran's examination was prior to that date, the findings shown were using the ASA standards. Once these findings are converted from ASA standards to the current standards set forth by the International Standards Organization (ISO) the Veteran is shown to have a hearing disability in the left ear, for VA purposes. In particular, findings at 500, 1000, and 4000 Hertz were 30, 30, and 35 decibels, respectively. Therefore, he was shown to have auditory thresholds of 26 decibels or greater for at least 3 of the frequencies. See 38 C.F.R. § 3.385. Although the Veteran had post-service occupational exposure working at a car manufacturer, the threshold for a hearing loss disability was met prior to his separation from service. The Board also considered National Guard records following service, and only the June 1981 audiometry reflected hearing thresholds within normal limits; all the other tests reflected a left ear hearing loss. May 2010 private audiometry records and August 2010 VA examination also show a current left ear hearing loss disability. Although the VA examiner opined against the claim, the opinion has no probative value because the examiner stated there was no ratable hearing loss in service. It is apparent from this statement the audiologist did not convert the in-service findings from ASA to ISO when reviewing the claims file. The most probative evidence of record shows the Veteran had a left ear hearing loss in service and aside from one aberrant test in 1981 he continued to have a hearing loss disability. Therefore, resolving reasonable doubt in the Veteran's favor, his left ear hearing loss had its onset during service. ORDER Service connection for left ear hearing loss is granted. REMAND The Veteran contends his current right hearing loss is related to service. May 2010 private treatment records establish the Veteran's current right ear hearing loss; however, the October 2010 VA examination contains inadequate nexus information to decide the claim. The RO also considered the claim for service connection for tinnitus on the basis of being secondary to the Veteran's hearing loss, but did not provide the Veteran with notice of the type of evidence needed to satisfy a claim for secondary service connection. Furthermore, the October 2011 supplemental VA examiner's opinion only addressed secondary service connection as tinnitus being causes by or due to hearing loss; secondary service connection also encompasses aggravation, which was not addressed by the examiner. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a VCAA notice letter on the issue of entitlement to service connection for tinnitus as secondary to hearing loss. See 38 C.F.R. § 3.310. 2. Return the Veteran's claims file and a copy of this remand to the audiologist who provided the August 2010 VA examination opinions and the October 2011 supplemental opinion. If this audiologist is not available then the claims file and this remand should be forwarded to another audiologist. The audiologist must indicate in the report that the claims file was reviewed. a) The VA audiologist must provide an opinion as to whether the Veteran's right hearing loss at least as likely as not (50 percent or greater probability) had its onset during service, manifested to a compensable degree during the first post-service year (meaning by November 1964), or is otherwise related to service. In rendering this opinion, the audiologist must consider and address, where necessary, the following: * The audiometry findings on the September 1963 separation examination were based on the ASA unit and that they must be converted to the current standards set forth by the ISO to accurately determine the Veteran's right ear hearing acuity in service. * The Veteran's military occupational specialty (MOS) in service was wheeled vehicle mechanic and, based on his MOS, acoustic trauma is conceded. b) The audiologist is advised that the Veteran is not precluded from establishing service connection based solely on his hearing was within normal limits at time of separation from service. Rather, a hearing loss disability diagnosed after service may be service connected if the evidence nonetheless shows it is related to his service and not, instead, other causes (intercurrent causes). If, however, in the examiner's opinion there is no basis for "delayed onset" hearing loss, then provide the medical authority for this conclusion. c) The VA audiologist must provide an opinion as to whether the Veteran's tinnitus at least as likely as not (50 percent or greater probability) had its onset during service or is otherwise attributable to any event or incident of his service, to include acoustic trauma. If tinnitus is not related to service, the audiologist must address the theory of secondary service connection by responding to the following: * Is tinnitus "caused by" or "due to" the service related hearing loss disability? * If not caused by the hearing loss disability, is it "aggravated by" the hearing loss disability? d) For all opinions and conclusions reached, the audiologist must provide a detailed explanation of the rationale that includes reference to specific findings in the record. He or she must also discuss any scientific evidence or medical principals considered in reaching these conclusions. 3. Next, review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If the supplemental report does not include adequate responses to the specific opinions requested, it must be returned to the providing audiologist for corrective action. 4. Finally, readjudicate the merits of the Veteran's claims based on all the evidence of record, including any additional information obtained as a result of this remand. If any benefit sought is denied, provide the Veteran and his representative a supplemental statement of the case (SSOC) and an appropriate period of time for response. Thereafter, subject to current appellate procedure, the case must be returned to the Board for further consideration, if otherwise in order. 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). 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. 2013). ______________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs