Citation Nr: 1335584 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 09-05 427 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from January 1970 to October 1972 and from November 1981 to December 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which, in pertinent part, denied service connection for bilateral hearing loss and tinnitus. Jurisdiction over the claims file is currently held by the RO in Atlanta, Georgia. In September 2012, the Veteran testified before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is of record. This case was previously before the Board in January 2013 when it was remanded for further action by the originating agency. The case has now returned to the Board for further appellate action. The issue of entitlement to service connection for tinnitus 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. FINDINGS OF FACT 1. The Veteran does not have a right ear hearing loss disability. 2. The Veteran's left ear hearing loss had its onset during active duty service due to combat noise exposure. CONCLUSIONS OF LAW 1. Right ear hearing loss was not incurred or aggravated by active duty service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2013). 2. Service connection for left ear hearing loss is warranted. 38 U.S.C.A. §§ 1110, 1131, 1154(b); 38 C.F.R. §§ 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that service connection is warranted for bilateral hearing loss as it was incurred due to combat noise exposure. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The Board finds that a current hearing loss disability is demonstrated by the evidence of record with respect to the Veteran's left ear. Applicable regulations provide that impaired hearing shall be considered a disability when the auditory thresholds in any of the frequencies of 500, 1,000, 2,000, 3,000, and 4,000 Hz are 40 decibels or greater; the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores are 94 percent or less. 38 C.F.R. § 3.385 (2013). In this case, the Veteran has a history of unreliable audiological examination results. Audiograms performed at the Atlanta VA Medical Center (VAMC) in December 2010, January 2011, and April 2011 were characterized as invalid due to the Veteran's inconsistent responses. Similarly, the results of a March 2013 VA audiological examination were found unreliable due to poor behavioral responses by the Veteran. However, an audiogram performed at the VAMC in May 2011 was found acceptable by the examining audiologist and the Veteran was diagnosed with normal right ear hearing and left ear mild sensorineural hearing loss. A hearing aid was provided for the left ear in September 2011. While the specific results of the May 2011 audiogram are not currently of record, the Board will resolve any doubt in favor of the Veteran and find that a left ear hearing loss disability has been demonstrated for VA purposes in accordance with 38 C.F.R. § 3.385. With respect to the claim for the right ear, the competent medical evidence establishes that the Veteran does not manifest right ear hearing loss. His right ear hearing tested normal at the May 2011 VAMC audiological consultation and he was only issued a hearing aid for the left ear. The Veteran is competent to report symptoms such as decreased hearing in the right ear, but he is not competent to diagnose hearing loss for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999). The Board finds that the objective medical evidence outweighs the Veteran's lay statements regarding the presence of a right ear hearing loss disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (Veteran not competent to diagnose cancer; whether lay evidence is competent and sufficient to establish a diagnosis in a particular case is a fact issue to be addressed by the Board). Therefore, service connection is not possible for a hearing loss disability of the right ear as a current disability is not demonstrated. The Board must now determine whether the Veteran's left ear hearing loss disability is etiologically related to active duty service. Service treatment records are negative for treatment or complaints related to the Veteran's hearing and an audiogram conducted in October 1972 in association with the Veteran's separation from active duty with the Army was indicative of normal hearing. While there is no documentation of hearing loss during service, the Veteran testified in March 2013 that he was exposed to loud noises associated with hostile fire while serving in Vietnam. In its January 2013 decision granting service connection for posttraumatic stress disorder (PTSD), the Board determined that the Veteran engaged in combat with the enemy. The noise exposure described by the Veteran is also consistent with the circumstances of his combat service in Vietnam. 38 U.S.C.A. § 1154(b) (West 2002). The Board therefore finds that the evidence establishes the presence of an in-service injury, i.e. acoustic trauma. In Reeves v. Shinseki, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) found that the combat presumption contained within 38 U.S.C.A. § 1154(b) not only applied to a combat injury, but also the consequences of that injury, at least in service. Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012) (holding that the Board was required to apply the section 1154(b) presumption to the Veteran's claimed acoustic trauma during service and the separate question of whether he suffered permanent hearing loss while on active duty). During a December 2010 audiological consultation, the Veteran reported the onset of permanent hearing loss during active duty service in 1971. Therefore, 38 U.S.C.A. § 1154(b) applies to his contentions regarding the onset of the chronic disability during service. See Id. Section 1154(b) provides that service connection for the in-service injury can only be rebutted by clear and convincing evidence to the contrary. In this case, the Board finds that the record does not contain clear and convincing evidence that the Veteran did not acquire chronic left ear hearing loss during active service, and the combat presumption of 1154(b) with respect to the in-service incurrence of the claimed disability is not rebutted. The Veteran has reported the onset of hearing loss during service that has continued to the present day. Lay statements, such as those made by the Veteran, are considered competent evidence when describing the features or symptoms of an injury or illness. Falzone v. Brown, Vet. App. 398 (1995). The Board also finds that the Veteran's statements are credible. The March 2013 VA examiner was asked to provide an opinion addressing the etiology of the Veteran's hearing loss, but found that such an opinion could not be provided without resort to speculation due to the inaccurate audiogram results during the examination. Thus, the record does not contain any medical evidence specifically weighing against the claim for service connection. The Board also finds that the lack of documentation of hearing loss during service is not sufficient on its own to provide clear and convincing evidence that the Veteran's hearing loss was not incurred during active duty. The combat presumption contained in 38 U.S.C.A. § 1154(b) is not rebutted and the Board finds that Veteran's left ear hearing loss had its onset during his first period of active duty service. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). With respect to the claim for service connection for left ear hearing loss, VA has substantially satisfied the duties to notify and assist. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this appeal given the favorable nature of the Board's decision to grant the claim. Regarding the claim for right ear hearing loss, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in a May 2006 letter. The Veteran also received notice regarding the disability-rating and effective-date elements of the claim in the May 2006 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records of VA treatment, and private medical records. Additionally, the Veteran was provided a proper VA audiological examination. VA has also complied with the January 2013 remand orders of the Board. In response to the Board's remand, the Veteran was provided a VA audiological examination in March 2013. The VA examiner concluded that the question of whether the Veteran's right ear hearing loss was etiologically related to active duty service could not be resolved without resort to speculation. In Jones v. Shinseki, 23 Vet. App. 382 (2010), the Court stated that VA need not "proceed through multiple iterations of repetitive medical examinations until it obtains a conclusive opinion or formally declares that further examinations would be futile," but it must be clear "that the examiner has not invoked the phrase 'without resort to mere speculation' as a substitute for the full consideration of all pertinent and available medical facts to which a claimant is entitled." The complete claims file and service records were reviewed by the VA audiologist and an audiogram was performed in conjunction with the VA examination. The examiner stated what additional evidence would permit an opinion in the case, specifically, an accurate contemporaneous audiogram. The Board notes that the failure to obtain an accurate audiogram in March 2013 was due to inconsistent responses provided by the Veteran, not any action taken by VA or the examining audiologist. Therefore, although the March 2013 VA examiner was not able to provide the medical opinion requested by the Board in its January 2013 remand, the stated basis for the opinion is adequate and remanding for an additional medical opinion is not required. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for left ear hearing loss is granted. REMAND The Board finds that additional development is necessary before a decision may be rendered with respect to the claim for entitlement to service connection for tinnitus. Specifically, a medical opinion should be obtained from a VA audiologist addressing whether the Veteran's tinnitus is associated with service-connected left ear hearing loss. The Board has determined that the Veteran's hearing loss was incurred due to combat noise exposure during active duty service and tinnitus is typically associated with hearing loss. The March 2013 VA audiological examiner did not comment on whether the Veteran's tinnitus was related to his hearing loss and a medical opinion is necessary to address this aspect of the claim. Accordingly, the case is REMANDED for the following action: 1. Provide the claims file to a VA audiologist with the appropriate expertise to provide an opinion addressing the etiology of the Veteran's tinnitus. The claims file must be reviewed by the audiologist. The audiologist should determine whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that the Veteran's tinnitus is caused or aggravated by service-connected left ear hearing loss. If tinnitus is not associated with service-connected left ear hearing loss, the audiologist should determine whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that the Veteran's tinnitus is related to any incident of active duty service, to include the Veteran's combat noise exposure in Vietnam. The audiologist is requested to provide a complete rationale for any opinions expressed, based on the audiologist's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the audiologist should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. Readjudicate the claim on appeal. If the benefit sought on appeal is not fully granted, issue a SSOC before returning the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter 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. 2013). ______________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs