Citation Nr: 1337465 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 11-13 327 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for left ear hearing loss disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for right ear hearing loss disability. REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Nathanson, Associate Counsel INTRODUCTION The Veteran had active service from March 1967 to January 1970 with service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal of an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. In June 2011, the Veteran presented testimony at a personal hearing conducted at the Baltimore RO before a Decision Review Officer (DRO). A transcript of this hearing has been associated with the Veteran's claims folder. In October 2013, the Veteran testified at a personal hearing which was chaired by the undersigned Veterans Law Judge at the Board's offices in Washington D.C. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The issue of service connection for right ear hearing loss disability 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. Left ear hearing loss disability is attributable to service. 2. Tinnitus is attributable to service. CONCLUSIONS OF LAW 1. Left ear hearing loss disability was incurred in wartime service. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. Tinnitus was incurred in wartime service. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). As the action taken herein below is favorable to the Veteran, a discussion of VCAA is not required at this time. Legal Principles As an initial matter, the Board notes that the disabilities for which the Veteran claims entitlement to service connection are the result of participation in combat with the enemy. As discussed below, the combat provisions of 38 U.S.C.A. § 1154 (West 2002) are applicable. In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 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. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303(d) (2012). Certain chronic diseases, including organic diseases of the nervous system, such as sensorineural hearing loss, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a "chronic disease" in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 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, or 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. 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 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). VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis The Veteran contends that his left ear hearing loss disability and tinnitus are the result of acoustic trauma incurred while engaging in combat with the enemy in the Republic of Vietnam. A finding that a veteran engaged in combat with the enemy under 38 U.S.C.A. § 1154(b) requires that the Veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, and does not apply to veterans who served in a general "combat area" or "combat zone" but did not themselves engage in combat with the enemy. See VAOPGCPREC 12-99 (October 18, 1999). In this case, the Veteran's military occupational specialty (MOS) included that of a light air defense artillery crewman, non-commissioned officer. The Veteran stated in his June 2009 Notice of Disagreement that he served in the Republic of Vietnam between 1969 and 1970 and was responsible for the security of supply routes, bridges, conveys, and was air lifted to several locations to hold down and protect fire bases during battles. He indicated that he was involved in firefights and battles that required him to fire and use fifty caliber machine guns. He noted in his May 2011 VA Form 9 that he had pain and occasional bleeding in his left ear after firing weapons during firefights as well as ringing in his ear. The Board finds this testimony credible and consistent with the circumstances of his service. See 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). The Board therefore finds that the Veteran engaged in combat with enemy. The finding that the Veteran engaged in combat is significant because it allows a combat veteran to use "satisfactory lay or other evidence" to establish that he was injured or incurred a disability while on active duty, even in cases where "there is no official record" that such injury or disability occurred. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012) (quoting 38 U.S.C.A. § 1154(b)). The Board therefore accepts the Veteran's testimony that he suffered acoustic trauma, ear pain, left ear bleeding, and ringing in his ears during service. Audiological findings of record, to include findings from a July 2011 examination, show that the Veteran currently meets the regulatory hearing thresholds for a hearing loss disability in his left ear. 38 C.F.R. § 3.385. Upon examination, the Veteran also reported ringing in his ears. As the symptoms of tinnitus are capable of lay observation, the current disability requirement has been met. See Charles v. Principi, 16 Vet. App. 370 (2002) (lay persons competent to testify about ringing in ears in service). Thus, this matter turns on the nexus question, i.e., evidence of a nexus between the claimed in-service disease or injury and the current disability. A review of the Veteran's service treatment records show that he did not have a hearing loss disability upon enlistment was found to be medically fit for duty. See 38 C.F.R. § 3.385. The service treatment records show no complaints, treatments, or diagnoses related to hearing or the Veteran's ears. Upon separation in January 1967, no audiometric testing was completed other than the whisper voice test. The Veteran also reported on separation that he had no ear, nose, or throat trouble, and no running ears. The Veteran testified in June 2011 about the excessive noise and ear injuries he incurred in service. He stated that he attempted to seek treatment during service, but his first sergeant told him there was nothing wrong with him and he had to continue to fight. He further testified in October 2013 that immediately upon separation from service, his ears were ringing and his hearing in his left ear decreased. He stated that he sought treatment for his ears at a VA facility within a month of separation, but was turned away. Consequently, he went to a private facility and saw an ear, nose, and throat specialist. He indicated that the examination caused him excruciating pain and the physician did not render a diagnosis. The Veteran was afforded a VA audiology examination in August 2008. The examiner noted that the Veteran had 3 years of active duty in an artillery unit and had subsequent routine noise exposure as a bus driver and a subway systems mechanic. The Veteran indicated that he was mandated to wear hearing protection in his post-service employment. The examiner acknowledged the Veteran's report of ringing in his ear and diagnosed the Veteran with left ear hearing loss disability pursuant to 38 C.F.R. § 3.385 and a monomeric perforation in the left ear, a middle ear pathology. The examiner opined that it was at least as likely that the hearing loss in the Veteran's right ear hearing loss is due to military noise exposure; however, the examiner opined it is more likely than not that the Veteran's left ear hearing loss and tinnitus is due to his middle ear pathology. The examiner further reported that there is no indication in the claims folder that the middle ear pathology was incurred in the military. The Veteran was also afforded a VA audiology examination in July 2011. Upon examination, the examiner opined that the Veteran's left ear hearing loss disability and tinnitus were less likely as not related to his military service because the Veteran had normal hearing upon enlistment and separation with no complaints of hearing loss or ear problems on the separation report of medical history. Based on a careful review of the record, the Board finds that the weight of the evidence reflects that the Veteran's left ear hearing loss disability and tinnitus were incurred in service. In regard to tinnitus, the Veteran reported in his May 2011 VA Form 9 that he first experienced ringing in his ears while in combat. The Board notes that the fact that the claimed cause of the Veteran's tinnitus, i.e., acoustic trauma from machine guns and firefight related noise, is established by his testimony, does not prevent him from also invoking the section 1154(b) provision in order to show that he incurred the disability itself while in service. Reeves, 682 F.3d at 999. In regard to left ear hearing loss, the Veteran testified in June 2011 that he experienced excessive noise exposure and acoustic trauma which manifested as excruciating pain and left ear bleeding while in service. He further testified in October 2013 that immediately upon separation, he experienced decreased hearing and sensitivity to loud noises. He sought treatment for his ears within one month of separation and testified that his symptoms have both continued and worsened since separation. The Board notes that the Veteran is competent to report as to the symptoms he experiences, such as difficulty hearing and ringing in his ears, and the onset and ongoing symptoms. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). As the Veteran's statements are consistent with the evidence of record the Board finds the statements both credible and highly probative. See 38 C.F.R. § 1154; Caluza v. Brown, 7 Vet. App. 498 (1995). The evidence weighing against the claim are the August 2008 and July 2011 VA examination reports. However, the August 2008 VA examination opinion is of low probative value as the examiner stated that there was nothing in the claims file to indicate the incurrence of a middle ear pathology without addressing whether the Veteran's in-service acoustic trauma and left ear bleeding could have caused or been indicative of the middle ear pathology. The Board also notes that the examiner opined that Veteran's in-service acoustic trauma at least as likely as not caused the Veteran's right ear hearing loss. The July 2011 VA examination opinion is also of low probative value. The examiner reasoned that the Veteran's hearing loss and tinnitus were not as least as likely as not related to service because he had normal hearing at separation and there was no evidence of hearing loss or tinnitus in the claims file. However, upon separation, the only audiometic testing completed was a whisper voice test which was not considered reliable. The examiner also did not fully address the Veteran's competent and credible assertions of in-service left ear bleeding and pain or his assertions regarding treatment directly after separation for decreased hearing and ringing in his ears. The Board notes that consideration of other theories of entitlement is not necessary as the decision is favorable to the Veteran. In sum, the Board finds that service connection for hearing loss and tinnitus is warranted because the probative evidence reflects the Veteran's left ear hearing loss disability and tinnitus are related to service. ORDER Service connection for a left ear hearing loss disability is granted. Service connection for tinnitus is granted. REMAND The August 2008 rating decision by the RO specifically adjudicated service connection for left ear hearing loss disability. The RO did not, in the August 2008 rating decision, nor in a separate rating decision, adjudicate the issue of service connection for right ear hearing loss disability. In the September 2012 Supplement Statement of the Case (SSOC), however, the RO reported in the reasons and bases that service connection for bilateral hearing loss disability is denied. Yet, the issue and decision remained service connection for left ear hearing loss disability. If the September 2012 SSOC constituted a substitute for a rating decision, the Veteran was never informed of his right to appeal nor other due process considerations. To the extent that it is a report of a prior action, there has been no prior action as the August 2008 rating decision was limited to left ear hearing loss disability. As such, there is the appearance of a denial in addition to a timely Notice of Disagreement, consisting of the October 2012 VA Form 9, which addresses bilateral hearing loss disability. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should prepare a rating decision that codes right ear hearing loss disability as either service connected or not service connected. 2. After completion of the above, if the determination remains less than fully favorable to the Veteran, he should be provided with a supplemental statement of the case (SSOC) and given an opportunity to respond thereto. Thereafter, if necessary, the case should be returned to the Board for appellate disposition. 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. 2013). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs