Citation Nr: 1334047 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 12-29 992 ) 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 hearing loss. 2. Entitlement to service connection for left ear hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Chris Miller, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1966 to June 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that denied the Veteran's claims of entitlement to service connection for bilateral hearing loss and tinnitus. The Board notes that while the Veteran submitted additional evidence after the last adjudication by the RO, he has waived RO review for such evidence. See 38 C.F.R. §§ 20.800, 20.1304(c) (2012). The RO adjudicated the Veteran's hearing loss claim as bilateral hearing loss. As discussed below, the Board finds that there is currently sufficient evidence only as to the Veteran's right ear. Therefore, the Board is bifurcating his claim into separate right ear and left ear claims. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. The documents in this virtual file were reviewed in conjunction with this appeal. The issues of entitlement to service connection for tinnitus and left ear hearing loss 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. FINDINGS OF FACT The Veteran does not have right ear hearing loss that is attributable to active military service, and the Veteran's right ear hearing loss did not manifest to a degree of 10 percent within one year of his separation from service. CONCLUSION OF LAW The Veteran does not have right ear hearing loss that is the result of disease or injury incurred in or aggravated by active military service; this hearing loss may not be presumed to have been incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Procedural Duties Upon receipt of a complete or substantially complete application for benefits, the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating the claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). A. Duty to Notify VA satisfied its duty to notify the Veteran in the development of his claim. Proper VCAA notice must inform the claimant of any information and evidence not in the record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). These requirements apply to all elements of a claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Proper notice must be provided prior to the initial unfavorable decision. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). In this case, a November 2010 letter notified the Veteran of the evidence and information necessary to substantiate his claim, the responsibilities of the Veteran and VA in obtaining such evidence, and the evidence and information necessary to establish a disability rating and an effective date, in accordance with Dingess/Hartman. This was prior to the initial adjudication of the Veteran's claim in July 2011. This letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). As such, VA satisfied its duty to notify the Veteran. B. Duty to Assist VA has also satisfied its duty to assist the Veteran in the development of his claim. First, VA satisfied its duty to seek relevant records. VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records, and to provide a medical examination or opinion when required. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All identified, available VA and non-VA records have been obtained and considered. There is no indication or argument that any pertinent medical records remain outstanding. Second, the Veteran was afforded a VA examination in March 2011, and there is no argument or indication that the report or opinions are inadequate for adjudication purposes as to the Veteran's right ear. Thus, the medical evidence is sufficient. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A , or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. II. Analysis The Veteran asserts that he is entitled to service connection for hearing loss in his right ear. He states that he was exposed to loud noises while serving as an aviation electrician in the Navy, and that this exposure caused his current hearing problems. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(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-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). To make these determinations, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). In addition, the law provides that, where a veteran served ninety days or more of qualifying service and organic diseases of the nervous system, such as sensorineural hearing loss, become manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 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, 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. The Veteran's March 2011 VA examination demonstrated right ear hearing loss pursuant to this provision, as he had a zero percent speech recognition score. While on active duty, the Veteran served as an aviation electrician, and he states that he was exposed to high noise levels. The Veteran's MOS is consistent with his reported noise exposure. As such, in-service injury is established. The remaining element is the existence of a nexus between the Veteran's current disability and his in-service injury. Here, the Veteran cannot make the adequate showing. The evidence indicates that he had sudden onset right ear hearing loss many years after service, and there is no competent evidence linking this hearing loss to service. First, the Veteran's service treatment records indicate that he had normal hearing thresholds at separation. A comparison with his thresholds at entrance is not possible, inasmuch as that examination used a whisper test. The Veteran's private records dated in 2008 from Dr. R.R., an otolaryngologist, and VA treatment records from July 2009 indicate that his hearing loss began in 2008. As such, the evidence does not establish continuity of symptoms from service for right ear hearing loss. Additionally, the March 2011 VA examination found that it is less likely than not that the Veteran's right ear hearing loss was caused by his in-service noise exposure. The examiner noted the Veteran's separation examination, and the reports of the 2008 sudden hearing loss. She also cited a 2005 report from the Institute of Medicine that found that there is no scientific evidence to support delayed onset hearing loss. This opinion has high probative value, because the rationale provided was thorough and considered pertinent evidence and the Veteran's hearing loss history. The Board notes that the Veteran has also submitted an October 2012 letter from Dr. R.R. Assuming that the phrase "hearing loss" was accidentally omitted, the letter appears to state that the Veteran's hearing loss is "to some degree related" to his in-service noise exposure. The Board has no reason to question the competency and credibility of Dr. R.R. However, the letter has little probative value. It is conclusory and two sentences long, and it includes neither any explanation nor any consideration of the Veteran's full hearing history, including report of sudden onset in 2008. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Accordingly, evidence does not establish a nexus between the Veteran's right ear hearing loss and his in-service noise exposure based on either lay or medical evidence. See 38 C.F.R. § 3.303. The Veteran is also not entitled to service-connection for his right ear hearing loss on a presumptive basis. There is no indication that the Veteran's right ear hearing loss was diagnosed or manifested to a compensable degree within one year of his separation from service. See 38 C.F.R. §§ 3.307, 3.309. Rather, all of the evidence indicates that it first manifested in 2008. In summary, the evidence does not establish that the Veteran's current right ear hearing loss was incurred or aggravated during his military service. The preponderance of the evidence is against service connection for a right ear hearing disability on a direct or presumptive basis. As such, the benefit of the doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The claim must be denied. ORDER Service connection for a right ear hearing loss is denied. REMAND A review of the claims file reveals that further development on the matters of entitlement to service connection for tinnitus and left ear hearing loss is warranted. A new VA examination is needed inasmuch as the March 2011 examination focused only on the Veteran's right ear hearing loss. Under the requirements of 38 C.F.R. § 3.385 stated above, the March 2011 VA examination found that the Veteran also has demonstrated hearing loss in his left ear. However, the examination report contains no indication of the date of onset for the Veteran's hearing loss in his left ear, and the opinion also only appears to address the right ear hearing loss. The examiner also noted that the onset and circumstances of the Veteran's tinnitus was "unclear." The Veteran has stated that he has different tinnitus symptoms in each ear, and that his right ear tinnitus began with his hearing loss. The Veteran's claims file contains no indication as to the onset of the Veteran's left ear tinnitus. Service connection for tinnitus cannot be separated by ear, in contrast to hearing loss. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311-312 (2007). The Board finds that a new medical examination would help to determine the etiology of the Veteran's left ear hearing loss and tinnitus. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his left ear hearing loss and tinnitus. The examiner should review the entire claims file, including a copy of this remand. Such review should be noted in the examination report. All necessary tests and studies should be conducted. The examiner should respond to the following: (a) Request the Veteran to identify the date of onset of his left ear hearing loss and left ear tinnitus. (b) State whether it is at least as likely as not (50 percent probability or more) that the Veteran's left ear hearing loss or tinnitus were incurred during his service. A rationale, with consideration of both lay and medical evidence, must be provided for all opinions provided. If any opinion cannot be provided without resorting to speculation, the examiner should so state and explain why such an opinion would be speculative. 2. When the development requested has been completed, the case should be reviewed on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the case is returned to the Board for further review. 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). 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). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs