Citation Nr: 1334614	
Decision Date: 10/30/13    Archive Date: 11/06/13

DOCKET NO.  10-44 222A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to service connection for right ear hearing loss. 

2.  Entitlement to service connection for left ear hearing loss.  


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

Mary-Caitlin Ray, Associate Counsel







INTRODUCTION

The Veteran served on active duty from October 1963 to October 1965.  This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  

The Board notes that the Veteran requested a Board hearing with respect to his appeal.  A video hearing was scheduled for July 2013.  Prior to the hearing, the Veteran submitted written notification withdrawing his hearing request.  As such, his hearing request is deemed to be withdrawn.  38 C.F.R. §20.704(d) (2013).  The Board has reviewed the physical claims file, and his electronic file through the "Virtual VA" system, to ensure a complete review of the evidence in this case. 

The issue of entitlement to service connection for left ear hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

The evidence of record shows that the Veteran has a right ear hearing loss disability according to VA standards, which is likely causally related to his active duty service.  


CONCLUSION OF LAW

The criteria for right ear hearing loss have been met.  38 U.S.C.A. §§ 1110, 1111, 1131, 1132, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist 

As provided for by the Veterans Claims Assistance Act (VCAA), VA has a duty to notify and assist claimants in substantiating claims for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2013).  

As to the claim of entitlement to service connection for right ear hearing loss, the Board grants service connection in the instant decision.  An analysis as to whether VA's duties to notify and assist were met with regard to this claim is therefore not necessary because any defect in meeting those duties could not have been prejudicial to the Veteran.  In short, the purpose of the notice and assistance has been met; the claim has been more than substantiated; it is granted.

II.  Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2002).  Generally the evidence 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.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hansen v. Principi, 16 Vet. App. 110 (2002); Caluza v. Brown, 7 Vet. App. 498 (1995).  

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.  See 38 C.F.R. § 3.303(d).  In Hensley, the Court held that "when audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service."  Hensley v. Brown, 5 Vet. App. 155, 160 (1993).  

The Veteran contends that he has bilateral hearing loss as the result of exposure to noise during his active service in the U.S. Army.  The Veteran's DD-214 documents the Veteran's occupation during service as a light and medium field crewman, an occupation not inconsistent with his testimony of exposure to artillery noise during service. Lay testimony in the form of a buddy statement from W.G. also confirms exposure to artillery noise during service without the use of auditory protection.  In giving due consideration to the places, types, and circumstances of the Veteran's service, noise exposure is conceded.  See 38 U.S.C.A. 1154(a).  

A hearing loss disability is defined for VA compensation purposes with regard to audiologic testing involving puretone frequency auditory thresholds and speech discrimination criteria.  38 C.F.R. § 3.385 (2013).  For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of these relevant frequencies are 26 dB or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent.  Id.  In the discussion below, when the Board refers whether or not the Veteran has a hearing loss disability, it is with this regulatory definition in mind.  

In July 2008, VA afforded the Veteran a VA compensation and pension (C&P) audiology examination.  Auditory thresholds in the right ear were measured as 35, 15, 35, 50, and 60 dB, at 500, 1000, 2000, 3000, and 4000 Hz, respectively.  Right ear speech recognition using the Maryland CNC test was 94 percent.  The examiner diagnosed mild to moderate sensorineural right ear hearing loss.  The auditory thresholds are evidence that the Veteran has a right ear hearing loss disability as defined by the regulation.  

VA afforded the Veteran another C&P audiology examination in August 2010.  The examiner indicated that he had reviewed the Veteran's claims folder and recorded the relevant data found in the claims folder.  Right ear auditory thresholds were measured as 45, 25, 45, 55, and 65 dB, at 500, 1000, 2000, 3000, and 4000 Hz, respectively.  Right ear speech recognition using the Maryland CNC test was 94 percent.  The examiner diagnosed normal to moderately severe mixed right ear hearing loss.  These auditory thresholds are further evidence the Veteran has a right ear hearing loss disability as defined by the regulation.  

Having established that the Veteran has a right ear hearing loss disability and that he was exposed to loud noise during service, the first and second elements of a service connection claim are satisfied.  Now, the Board turns to the nexus element.  

In the July 2008 VA examination report, the examiner concluded that "it is as least as likely as not that the Veteran's bilateral hearing loss . . . is due to acoustic trauma while in the service . . . ."  Even though the examiner gave this seemingly positive opinion, she simultaneously opined that "the pattern of [the Veteran's] audiogram is not consistent with loud noise induced hearing loss" (emphasis added).  This contradictory rationale is inadequate to determine the etiology of the Veteran's hearing loss.  

In the August 2010 VA examination report, the examiner concluded that hearing loss is less likely as not caused by or a result of in-service noise exposure.  He opined that the Veteran "had normal hearing on his induction evaluation and [sic] well as his REFRAD physicals.   There were no significant threshold shifts on his REFRAD physical when compared to his induction physical."  Notably, the examiner found that the Veteran's tinnitus was related to service even though there were no complaints of tinnitus found in the Veteran's service treatment records.  

In this regard, the VA audiological examiner based the entire opinion on the absence of any right ear hearing loss during the Veteran's service.  However, the Board reiterates that the applicable case law carries an established ruling that even if audiometric testing at separation from service does not meet the regulatory requirements for establishing hearing impairment under 38 C.F.R. §3.385, service connection may still be established for a current hearing disability by submitting evidence that the current disability is causally related to service.  Hensley, 5 Vet. App. 155, 158-59 (1993); see also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  The VA audiological examiners have been consistent conceding that the Veteran had noise exposure from artillery during service.  Moreover, the August 2010 examiner related to Veteran's tinnitus to his service based on in-service noise exposure.  Under the circumstances of this case, the Board finds it contradictory to relate the Veteran's tinnitus to in-service acoustic trauma, while alternatively finding that his right ear hearing loss is not related to military acoustic trauma.  This is especially true, considering the fact that the examiner has identified no other etiology for the Veteran's right ear hearing loss.  

The Veteran has consistently contended that in-service noise exposure caused his right ear hearing loss, and he has credibly reporting a perception of hearing loss since service.  The Veteran is already service-connected for tinnitus based on such conceded in-service acoustic trauma.  The evidence in this case is thus at least in equipoise with regard to the cause of the Veteran's current right ear hearing loss being his active duty service.  Accordingly, the Board concludes that the evidence as a whole, with application of the benefit-of-the-doubt rule, supports the Veteran's claim for right ear hearing loss.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013).  Therefore, the claim is granted.  


ORDER

Service connection for right ear hearing loss is granted. 


REMAND

The elements required to establish service connection for hearing loss have been discussed in the service connection portion of the decision above.  The first element of service connection for hearing loss is the existence of a present disability.  The evidence of record is unclear as to whether the Veteran's left ear hearing loss satisfies this element.  

Since submitting his original claim for bilateral hearing loss, the Veteran has been afforded two VA audiological examinations.  Left ear auditory thresholds in the July 2008 examination were measured as 40, 20, 30, 35, and 40 dB, at 500, 1000, 2000, 3000, and 4000 Hz, respectively.  Left ear speech recognition using the Maryland CNC test was 96 percent.  Based on the criteria for disability under VA regulations, the examiner diagnosed the Veteran with mild sensorineural hearing loss in the left ear.  The inadequacy of this exam for the purpose of determining service connection has been discussed in the service connection portion of the decision above.  This exam is probative to the extent that it shows a diagnosis of hearing loss in the left ear, but not to establish etiology of such a disorder. 

Left ear auditory thresholds in the August 2010 exam were measured as 10, 10, 15, 30, and 35 dB, at 500, 1000, 2000, 3000, and 4000 Hz, respectively.  Left ear speech recognition using the Maryland CNC test was 94.  Based on the criteria for disability under VA regulations, the examiner diagnosed the Veteran with sensorineural hearing loss in the left ear but noted that the thresholds did not meet the criteria for disability.  

In light of these two contradictory medical opinions, the Board finds that additional development is necessary to reconcile the disparate diagnoses and to determine whether the Veteran's left ear hearing loss satisfies the current disability element of a claim for service connection.  Therefore, the Board finds that an additional VA examination is needed in this case.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

Accordingly, the case is REMANDED for the following action:

1. Obtain and associate with the claims file any additional relevant medical evidence that may have come into existence since the August 2010 VA audiological examination report. 

2.  Schedule the Veteran for a VA examination to determine if he currently has left ear hearing loss in accordance with 38 C.F.R. § 3.385; and if so, whether it is related to his active duty.  All necessary tests and studies shall be conducted, and the claims file should be made available to the examiner for review in conjunction with the examination.  The examiner shall opine:

a) whether there is left ear hearing impairment as defined by VA regulations (38 C.F.R. § 3.385);
		
b) and if so, whether it is at least as likely as not (i.e., a probability of 50 percent or more) that left ear hearing loss was incurred in or as a result of loud noise exposure during active duty service.

In rendering the requested opinion, the examiner should specifically consider and discuss the Veteran's contentions, the lay history of symptomatology, and all the relevant medical evidence of record.  A rationale for all requested opinions shall be provided.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question.

2. Upon completion of the above-requested development, the RO should readjudicate the claim on appeal, taking into account all available evidence and conducting any additional development deemed necessary. If the service connection claim remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case as to the issue remaining on appeal, and afforded a reasonable period of time within which to respond thereto.

The Appellant has the right to submit additional evidence and argument on the matter or 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).



______________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs