Citation Nr: 1337506	
Decision Date: 11/18/13    Archive Date: 11/26/13

DOCKET NO.  10-19 703	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service connection for hypertension.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Joseph R. Keselyak, Counsel



INTRODUCTION

The Veteran served on active duty from February 1971 to December 1974.

This matter comes to the Board of Veterans' Appeals (Board) from November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  

The issue of entitlement of service connection for hypertension 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.  There is an approximate balance of positive and negative evidence as to whether the Veteran's bilateral hearing loss is causally related to service.

2.  There is an approximate balance of positive and negative evidence as to whether the Veteran's tinnitus is causally related to service.


CONCLUSIONS OF LAW

1.  Resolving doubt in favor of the Veteran, service connection for bilateral hearing loss is established.  38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2013).

2.  Resolving doubt in favor of the Veteran, service connection for tinnitus is established.  38 U.S.C.A. §§ 1110, 5103, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Considering the favorable outcome detailed below, VA's fulfillment of its duties to notify and assist need not be addressed at this time. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013).

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. 
§ 3.303(a) (2013).  Service connection may be granted for a disease diagnosed after service discharge when all the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2013).

To establish a right to compensation for a present disability, 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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

The requirements for service connection for hearing loss as defined in 38 C.F.R. 
§ 3.385 need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted.  The regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service.  Hensley v. Brown, 5 Vet. App. 155 (1993).  Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record, including that pertinent to service. 38 U.S.C.A. §1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013); Hensley, 5 Vet. App. at 159-60.

Service connection for sensorineural hearing loss may be granted if the disability becomes manifest to a compensable degree within one year following separation from active military service.  See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013).
Hearing loss will be considered to be a disability when the auditory threshold in any of the frequencies is 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, 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 (2012).  Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA.  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) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran claims that he has bilateral hearing loss and tinnitus attributable to service due to exposure to acoustic trauma.  He has related a significant history of noise exposure in service, consistent with his duties as an Electronics Technician and service with Coastal River Squadron One.  See DD Form 214.  He asserts that bilateral hearing loss and tinnitus are related thereto and offers a history of tinnitus and decreased hearing acuity in and since service.

A review of the Veteran's service treatment records discloses no complaints of hearing loss or tinnitus.  Upon entrance examination in January 1971, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
Zero
Zero 
Zero
5
5
LEFT
5 
Zero
Zero
5
5

The Veteran did not receive a separation audiologic examination.  Examination of the ears and drums, however, was normal at separation.  See December 1974 Report of Medical Examination.  

Following the service treatment records, the next evidence of auditory acuity appears in a July 1998 VA audiological assessment note.  Pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
10
10
25
10
LEFT
15
10
20
45
35

These audiometrics meet VA's standards for considering hearing loss a disability in the left, but not right, ear.  38 C.F.R. § 3.385.

Also of record, is a July 1999 VA audiological assessment note.  Pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
10
15
25
15
LEFT
10
10
20
45
30

These audiometrics meet VA's standards for considering hearing loss a disability in the left ear.  38 C.F.R. § 3.385.

In January 2001, the Veteran received another VA audiological assessment.  Pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
15
25
15
LEFT
10
10
20
45
35

These audiometrics meet VA's standards for considering hearing loss a disability in the left ear.  38 C.F.R. § 3.385.
In June 2008, the Veteran underwent VA examination in conjunction with his claims for service connection of bilateral hearing loss and tinnitus.  The examination report documents that the claims file was reviewed by the examiner, who noted that the Veteran's January 1971 entrance examination showed normal hearing bilaterally, and that the Veteran did not undergo auditory acuity testing at discharge.  The examiner noted also that VA hearing conservation records (outlined above) dating back to 1998 did indicate high frequency hearing loss at that time with little or no change over the period of time covered by these records.  

At the time of the examination, the Veteran reported difficulty hearing that began about 15 to 20 years ago and had gradually gotten worse over time.  He also related a history of tinnitus that he had been aware of since 1980 or earlier.  The Veteran asserted that his bilateral hearing loss and tinnitus were due to excessive noise exposure in service.  In this regard, he reported exposure to noise from artillery, engines and gunfire during his service in Navy Communications and the River Boat Squadron.  He denied the use of hearing protection in service.  In terms of civilian noise exposure, he denied any significant occupational and recreational exposure.  He had worked as an electronics technician for 28 years and reported the use of hearing protection when exposed to excessive noise.  He denied any history of ear disease. 

On VA audiological testing pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
35
45
30
LEFT
15
10
35
55
35

Pure tone averages were 33 for the right ear and 36 for the left ear.  Speech audiometry revealed speech recognition ability of 90 percent in the right ear at 80 dB and of 78 percent in the left ear at 80 dB.  This shows bilateral hearing loss to an extent qualifying as a disability for VA purposes.  38 C.F.R. § 3.385.  

The examiner assessed bilateral mild  sensorineural hearing loss in both ears, as well as tinnitus.  In terms of etiology, the examiner remarked that the pattern and amount of hearing loss, as well as the reported constant tinnitus, were consistent with noise-induced hearing loss.  However, the examiner further remarked that without resorting to speculation, she could not be determined if this loss was due to the Veteran's military service as an exit audiogram was not available.  She noted further that stable hearing loss was noted on the available hearing conservation data for an extended period of time.  

In resolving any doubt in the Veteran's favor, the Board concludes that entitlement to service connection for bilateral hearing loss and tinnitus is warranted.  The Board acknowledges that bilateral hearing loss and tinnitus were not complained of or assessed in service and that it is not until about 25 years following the Veteran's discharge that there appears any evidence of hearing loss.  However, the Veteran's reports of exposure to acoustic trauma in service are consistent with his service duties.  Moreover, he has competently related his lay observations of these conditions by relating a history of noticeable decreased hearing acuity and tinnitus since service.  See Charles v. Principi, 16 Vet. App. 370, 374 (2002).  The VA examiner indicates that the Veteran's bilateral hearing loss and tinnitus are consistent with noise exposure and the only noise exposure that the Veteran apparently experienced occurred in service.  Thus, it appears at least as likely as not that the conditions are attributable to in-service noise exposure.  See Jones v. Shinseki, 23 Vet. App. 382, 394 (Lance, J. concurring).  Accordingly, the claims are granted.  Gilbert, supra.


ORDER

Entitlement to service connection for bilateral hearing loss is granted.

Entitlement to service connection for tinnitus is granted.


	(CONTINUED ON NEXT PAGE)
REMAND

The Veteran is claiming that hypertension was incurred or is attributable to service.  His service treatment records document an impression of "border line BP" at discharge.  See December 1974 Report of Medical Examination.  He has also submitted evidence that hypertension pre-existed service.  See April 2010 letter from Waco Cardiology Associates.  He contends, also, that his hypertension may have been caused or aggravated by non-steroidal anti-inflammatory medications (NSAIDs) that he has taken for service-connected, residuals, fracture, proximal interphalangeal, index finger, right hand.  See May 2010 Substantive Appeal (VA Form 9).  He has not been afforded a VA examination on this claim and this set of facts suggests that hypertension was incurred or attributable to service.  It also suggests that hypertension may have been aggravated therein or that the condition is secondary to service-connected disability.  Accordingly, the Board finds that a medical opinion is necessary to decide the claim.  38 C.F.R. § 3.159(c)(4) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a VA examination to address the nature and etiology of his claimed hypertension.

The claims folder must be provided to and reviewed by the examiner in conjunction with the examination.  The examiner must obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination, giving particular attention to his service treatment records, lay assertions, and the pertinent medical evidence.  Any evaluations, studies, or tests deemed necessary by the examiner should be accomplished and any such results must be included in the examination report.  

Based on the review of the file and the examination of the Veteran, the examiner is asked the following questions:

a.  Does the evidence of record clearly and unmistakably show that the Veteran had hypertension that existed prior to his entry into active duty?

b.  If the answer is "yes," does the evidence clearly and unmistakably show that the pre-existing condition was not aggravated by service?

Note:  Aggravation is defined for legal purposes as a permanent worsening of the underlying condition beyond the natural progression, versus a temporary flare-up of symptoms.  Clear and unmistakable means obvious and manifest.

c.  Alternatively, if the answer to question (a.) is "no," is it at least as likely as not (a 50 percent or greater probability) that hypertension is etiologically related to service or had its onset during the Veteran's period of active military service?

d.  Alternatively, if the answers to questions (a.) and (c.) are negative, is it at least as likely as not (a 50 percent or greater probability) that the Veteran's service-connected disabilities caused his hypertension, particularly as due to the use of NSAIDs (or any other medications) taken for service-connected conditions?  Service connection is in effect for residuals of a fracture of the proximal interphalangeal, index finger, on the right hand; gastritis; hearing loss; and tinnitus.

e.  If the answer to (d.) is negative, is it at least as likely as not that hypertension has been aggravated by the service-connected disabilities, particularly as due to the use of NSAIDs (or any other medications).  Service connection is in effect for residuals of a fracture of the proximal interphalangeal, index finger, on the right hand; gastritis; hearing loss; and tinnitus.

If so, the examiner should indicate to the extent possible the approximate degree of disability or baseline before the onset of the aggravation.

Note: The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it.

All opinions must be accompanied by a complete rationale.  If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion.

2.  Thereafter, the issue on appeal should be readjudicated.  If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC) and afforded the opportunity to respond thereto. The matter should then be returned to the Board, if in order, for further appellate process.

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. 2012).



______________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs