Citation Nr: 1337617	
Decision Date: 11/18/13    Archive Date: 11/26/13

DOCKET NO.  11-14 824	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUES

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

2.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. 


REPRESENTATION

Veteran represented by:	Mississippi Veterans Affairs Commission


ATTORNEY FOR THE BOARD

M. Moore, Associate Counsel



INTRODUCTION

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The Veteran served on active duty from November 1954 to January 1959.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which denied a total disability rating based on individual unemployability due to service-connected disabilities (TDIU); and an October 2008 rating decision of the VA RO in Jackson, Mississippi, which denied service connection for left ear hearing loss and tinnitus.  His case is currently under the jurisdiction of the VA RO in Jackson, Mississippi.

In April 2013, the Board remanded the Veteran's claims of entitlement to service connection for left ear hearing loss and tinnitus and TDIU to the Appeals Management Center (AMC).  Additionally, the Board obtained an expert medical opinion from a Veterans Health Administration (VHA) physician in October 2013.  

In a July 2013 rating decision, the AMC granted service connection for tinnitus.  This grant of service connection is considered to be a full grant of the benefits on appeal for the Veteran's tinnitus claim.  The claim of entitlement to service connection for tinnitus is no longer before the Board.  See generally Grantham v. Brown, 114 F.3d 115 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997).

The issue of TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC in Washington, DC.  VA will notify the Veteran if further action on his part is required.




FINDING OF FACT

The Veteran's currently diagnosed left ear hearing loss is the result of his military service. 


CONCLUSION OF LAW

Left ear hearing loss was caused or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

I. Duties to Notify and Assist

With respect to the Veteran's claim for service connection for left ear hearing loss, that claim has been granted, as discussed below.  Any error related to the VCAA on that claim is moot.  38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

II. Merits of the Claim

The Veteran claims that his current left ear hearing loss is the result of his military service.  Specifically, he claims that his left ear hearing loss is the result of a head injury suffered during an in-service motor vehicle accident (MVA) and that he has experienced diminished hearing since that time.  

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131 (West 2002).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d) (2013).

In order to establish service connection for a disability, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).

A review of the medical evidence of record shows that the Veteran has current left ear hearing loss for VA purposes.  Notably, the audiometric results from the most recent VA audiological examination, performed in May 2013, demonstrated that the Veteran's auditory thresholds at all measured frequencies were 50 dB or higher.  This meets the VA definition of a hearing loss disability.  38 C.F.R. § 3.385 (2013).  Thus, the first element of Hickson is met.  

Although a review of the service treatment records is negative for any findings of hearing loss in service, they do indicate that the Veteran was treated in service for a brain contusion and jaw fracture following an MVA.  Additionally, in-service noise exposure has been conceded and service connection for tinnitus has been granted based on this conceded in-service noise exposure.  The second element of Hickson is met as well.

With respect to the remaining element (a medical nexus), the Veteran has been afforded multiple VA examinations.  An opinion was obtained from a VHA expert as well.  The October 2013 VHA opinion concluded that it was at least as likely as not that the Veteran's currently diagnosed left ear hearing loss has its onset in service or is otherwise etiologically related to his military service.  He explained that the Veteran complained of difficulty hearing shortly after service and had a finding of mild diminution of hearing on the left and hyperacusis approximately 16 months after discharge.  He indicated that hyperacusis is evidence of damage to the auditory system more typically caused by noise exposure and, in this case, also possibly due to his in-service head injury.  The examiner also opined that the Veteran's in-service head injury was sufficiently severe to cause slight hearing loss which progressed over the years.  Finally, he indicated that the Veteran's post-service occupation did not provide a sufficient level of noise exposure to cause a hearing impairment, while his in-service noise exposure has been conceded.  In light of all of these factors, the VHA physician was able to link the Veteran's left ear hearing loss to his military service.

The Board notes that the Veteran was afforded two VA examinations and an addendum opinion to address the etiology of his left ear hearing loss.  However, these examinations/opinions are not sufficient enough to outweigh the above VHA opinion, as evidenced by the Board's decision to obtain the VHA opinion.  Specifically, the VA examiners were unable to provide opinions without resorting to speculation.

In light of the positive VHA opinion and inadequate VA examinations, the medical evidence in this case is, at minimum, in equipoise regarding the question of whether the Veteran's current left ear hearing loss is related to his active duty.  The benefit-of-the-doubt will be conferred in the Veteran's favor and his claim for service connection for left ear hearing loss is granted.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

Entitlement to service connection for left ear hearing loss is granted.


REMAND

As the above grant of service connection for left ear hearing loss will affect the resolution of the Veteran's claim for TDIU, these issues are inextricably intertwined.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Holland v. Brown, 6 Vet. App. 443 (1994); Henderson v. West, 12 Vet. App. 11 (1998).  The RO must first implement the Board's above grant of service connection for left ear hearing loss, including assigning a disability rating and effective date, and then readjudicate the Veteran's claim for TDIU.

Accordingly, the case is REMANDED for the following actions:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  Expedited handling is requested.)

1.  The Board's decision granting service connection for left ear hearing loss should be implemented by the RO/AMC, including assigning a disability rating and an effective date.  The Veteran and his representative should be properly notified thereof and of his appellate rights.

2.  Thereafter, and after completing any additional development deemed necessary, including consideration of a VA examination, the Veteran's claim of entitlement to TDIU should be readjudicated.  If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative.  After they have had an adequate opportunity to respond, all issues properly on appeal should be returned to the Board for further appellate review.

The Veteran 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 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.  38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2013).



______________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs