Citation Nr: 1340874 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 10-11 273 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for left ear hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Veteran & F.C. ATTORNEY FOR THE BOARD L. Edwards, Counsel INTRODUCTION The Veteran had active service from March 1966 to March 1968. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran requested a hearing before the Board. The requested hearing was conducted in February 2012 by the undersigned. A transcript is associated with the claims file. The issues of entitlement to service connection for left ear hearing loss and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran is a combat veteran. 2. The Veteran is presumed to have incurred acoustic trauma during service as such injury is consistent with the circumstances, conditions, and hardships of his combat service. 3. The competent and credible medical opinion evidence of record shows that the Veteran's currently diagnosed right ear hearing loss is not likely etiologically due to the in-service acoustic trauma. CONCLUSION OF LAW The criteria for entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1111, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.102, 3.303, 3.306, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The notice requirements were met in this case by a pre-adjudication letter sent to the Veteran in January 2009. That letter advised the Veteran of the information necessary to substantiate his claim, and of his and VA's respective obligations for obtaining specified different types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). This letter also advised the Veteran how disability ratings and effective dates are assigned. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Virtual VA records have been reviewed, and include additional VA treatment records, none of which are pertinent to the issue of the etiology of the Veteran's hearing loss. The Veteran referenced possible post-service hearing tests during his February 2012 Hearing; the AMC sent a letter to the Veteran in March 2013 requesting the Veteran provide information concerning the hearing tests. The Veteran did not reply. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The Board notes that in the March 2013 Remand, the Board found the March 2009 VA examination did not have an adequate opinion and the claim was remanded to obtain a more thorough medical opinion. In compliance therewith, another VA medical opinion was rendered following review of the claims file in March 2013. No deficiency is detected in the March 2013 VA examination pertaining to the issue of entitlement to service connection for right ear hearing loss. All questions necessary to render the determination made herein thus have been answered. As discussed below in greater detail, the VA medical examination and opinions collectively are adequate, pertaining to the issue of right ear hearing loss. Barr v. Nicholson, 21 Vet. App. 303 (2007) (defining adequacy with respect to medical examinations and opinions as providing sufficient detail so that the Board can perform a fully informed evaluation). With respect to the 2012 Board hearing, the Court recently held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ noted the issues on appeal, and asked questions to clarify the Veteran's contentions. The VLJ also asked questions to determine whether there was evidence that might have been overlooked. See Hearing Transcript pages 6 and 13. Furthermore, the testimony of the Veteran, to include the questions posed by his accredited representative, demonstrated that he had actual knowledge of the elements necessary to substantiate these claims. Moreover, as detailed below, the Veteran received adequate notification as to the elements necessary to substantiate his claim. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of either hearing. As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. 3.103(c)(2) have been satisfied. In March 2013, the Board remanded these claims to obtain additional records and medical opinions. Records were requested in March 2013; however, the Veteran did not respond. Additionally, medical opinions were obtained in March 2013. The Board is satisfied that there has been substantial compliance with the prior remand, regarding the issue of entitlement to service connection for right ear hearing loss. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (indicating that a Court or Board remand confers upon the Appellant the right to substantial, but not strict, compliance with that order.). That development having been completed, the claim is now ready for appellate review. VA's duty to assist in the development of the claim is complete, and no further notice or assistance to the Veteran is required to fulfill the duty. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, Smith v. Principi, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Service Connection Claim The Veteran contends that he has disabling bilateral hearing loss as a result of noise exposure during service. He asserts that his right ear hearing loss is a result of his time in service. Service connection may be established 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. Service connection also may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss, may be established based upon a legal presumption by showing that it manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). The Court has explained that, in general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay 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). Under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. For VA disability benefits purposes, impaired hearing is considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). Decibel losses recorded on service department audiological examinations prior to November 1, 1967, are assumed to be measured in American Standards Association (ASA) units, and are converted to International Organization for Standardization (ISO) units to facilitate comparison of results. The current VA definition for a hearing loss disability found at 38 C.F.R. § 3.385 is based on ISO units. In the Hensley case the Court noted that 38 C.F.R. § 3.385, "does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service." 5 Vet. App. at 159. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. A. Entitlement to Service Connection for Right Ear Hearing Loss The Veteran seeks entitlement to service connection for right ear hearing loss. He asserts that acoustic trauma during service caused his current right ear hearing loss. The Veteran's service treatment records were reviewed. His January 1966 induction examination indicated normal hearing for the right ear. There were no further complaints, treatment, or diagnoses of right ear hearing problems during service. The March 1968 separation examination did not note any audiological results, and it is unclear whether the Veteran underwent a Whisper Test for the right ear. See March 1968 Separation examination. The Veteran asserts he was exposed to acoustic trauma from being in combat situations. The Veteran's DD-214 indicates he received the Combat Medical Badge. In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. 38 U.S.C.A. § 1154(b) (West 2002). Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. Id. The Board finds that the Veteran is a combat veteran. The Board further finds that the Veteran is presumed to have incurred acoustic trauma during service as such injury is consistent with the circumstances, conditions, and hardships of his combat service. As discussed below, the Veteran contends that he detected hearing loss in his right ear post-service so the combat presumption extends to in-service incurrence of acoustic trauma only. Cf. Reeves v. Shinseki, 682 F.3d 988, 998-00 (Fed. Cir. 2012). The claims file does not contain any measurement of the Veteran's right ear hearing loss during the year following his separation from service. Furthermore, the Veteran indicated during the March 2009 VA examination that his right ear hearing loss had an onset of several years after service, in the 1970's (possibly mid-70s). As such, the Board finds there is no evidence to support a presumption of service connection based on manifestation of hearing loss to a degree of 10 percent disabling within one year from discharge from service. The Veteran was afforded a VA examination in March 2009. He complained of an onset of right ear hearing loss sometime in the 1970's. He reported in-service noise exposure of artillery, mortars, explosive devices, small weapons, aircrafts and that he did not use hearing protection at the time. The Veteran reported he was a logger for 43 years, including two and a half years prior to military service. He stated he did not use hearing protection until the late 1980's or early 1990's. During the audiological evaluation in March 2009, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 35 40 70 80 Speech recognition score for the right ear was 92 percent. The examiner noted that the Veteran's right ear results indicated an average, moderately severe sensorineural hearing loss in the right ear. The results from the March 2009 VA examination demonstrate right ear hearing loss, as it is defined by VA regulations. Therefore, the pertinent inquiry is whether the Veteran's current hearing loss was casually or etiologically due to in-service acoustic trauma. The Board concludes it is not. The March 2009 VA examiner noted that the largest dose of unprotected noise exposure was following military service, where the Veteran was employed as a logger for approximately 43 years, without hearing protection. Based on this factor, the examiner opined that the Veteran's right ear hearing loss was less likely as not caused by or a result of acoustic trauma during service. The Board remanded this claim in March 2013, noting that the March 2009 VA examiner did not discuss the impact of the Veteran's acoustic trauma during his military service in combat. An addendum opinion was obtained in March 2013. The examiner noted that the Veteran's right ear had normal hearing upon entry to service, and that the Veteran reported 43 years of post-service occupational noise exposure as a logger, using hearing protection only during the last decade. The examiner noted that the pattern of hearing loss noted in the March 2009 examination demonstrated decreased low frequencies with a high frequency slope with no noise notch present, suggestive of age-related hearing loss. The examiner also noted that the Veteran reported an onset of right ear hearing loss in the 1970's, several years after separation from service. The examiner opined that the Veteran's right ear hearing loss is less likely as not caused by or a result of military noise exposure. The examiner explained that the opinion was based on the pattern of hearing loss, reported onset of right ear hearing loss several years after military service, and a significant history of unprotected noise exposure post-military service. The examiner indicated that as there was only a whisper test upon separation from service, threshold shifts could not be verified or ruled out; however, based on the length of time the Veteran worked as a logger with no hearing protection, the examiner opined that there is less than a 50 percent chance that any right ear hearing loss was caused by the two years the Veteran spent in service. The examiner also indicated that although the opinion was less likely as not (less than 50 percent probability), that did not mean that there was a zero percent chance that military noise exposure was a contributing factor. However, based on the absence of a noise notch, reported onset several years after service, and history of post-military noise exposure of much greater duration than that of time in service, all suggested that the probability of military noise exposure causing his right ear hearing loss is less than 50 percent. The Board finds the March 2013 VA examiner's opinion persuasive. It is based on a review of a complete physical examination and a thorough review of the claims folder, to include in-service and post-service audiological findings. There is no medical opinion to the contrary. In short, while the Veteran's service treatment records confirm he entered service without a right ear hearing impairment, he incurred in-service acoustic trauma, and he currently meets the definition of right ear hearing loss by VA regulations, none of the medical evidence shows that the Veteran's right ear hearing loss is likely due to the in-service acoustic trauma. Thus, service connection cannot be established. See Dalton v. Nicholson, 21 Vet. App. 23, 37 ("[A] veteran who establishes in-service incurrence of an injury or disease through application of section 1154(b) must nonetheless submit 'sufficient evidence of a causal nexus between that in-service event and his or her current disability.'"). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether the Veteran's right ear hearing loss is etiologically related to in-service acoustic trauma falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Here, the competent and credible medical opinion evidence of record shows that the Veteran's currently diagnosed right ear hearing loss is not likely etiologically due to the in-service acoustic trauma. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for right ear hearing loss. As such, that doctrine is not applicable in the instant appeal, and the Veteran's claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for right ear hearing loss is denied. REMAND Inasmuch as the Board sincerely regrets another remand of this matter, the development directed by the Board in its last remand was not accomplished. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the March 2013 Remand, the AMC was instructed to obtain an addendum medical opinion regarding the etiology of the Veteran's claimed tinnitus and left ear hearing loss. The examiner was asked to opine whether it was clear and unmistakable that the Veteran entered service with pre-existing tinnitus. If so, the examiner was to opine whether there was clear and unmistakable evidence that the Veteran's tinnitus was not aggravated beyond the natural progress of the disorder. VA medical opinions were obtained in March 2013. The examiner opined that it was clear the Veteran's tinnitus pre-existed service; however, he then opined that the Veteran's tinnitus was less likely as not aggravated by military noise exposure. The Board finds that the wrong standard was used for this opinion. Importantly, tinnitus was not noted at the Veteran's induction examination. See January 1966. Here, the presumption of soundness has attached, and the burden of proof is upon VA to rebut the presumption by producing clear and unmistakable evidence that the disorder was not aggravated by service. See 38 U.S.C.A. 1111; 38 C.F.R. § 3.304(b); see also VAOPGCPREC 3-03 and Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). The March 2013 VA examiner did not use the correct standard, and a remand is necessary to obtain an addendum opinion. For the same reasons, a remand is necessary in regard to the left ear hearing loss claim for proper application of 38 U.S.C.A. § 1153. Accordingly, the case is REMANDED for the following actions: 1. Please return the claims file and a copy of this remand to the March 2013 examiner for an addendum opinion. (a) While the examiner found that the Veteran's left ear hearing loss pre-existed service and was "less likely as not" "aggravated beyond natural progression by military noise exposure," the Board finds that the examiner must specifically render the findings previously requested by the Board: Is it at least as likely as not (50 percent probability or greater) that the Veteran's pre-existing left ear hearing loss underwent an increase in severity in service (i.e., a permanent worsening of the underlying disease as distinguished from a temporary or intermittent flare-up) as the result of the presumed in-service incurrence of acoustic trauma? If YES, is the increase in severity of the left ear hearing loss clearly and unmistakably (i.e., highest degree of medical certainty) due to the natural progress of the disorder? (b) While the examiner found that there is clear evidence that the Veteran's tinnitus pre-existed service and that the pre-existing tinnitus "was less likely as not . . . aggravated by military noise exposure," the Board finds that the examiner must specifically render the findings previously requested by the Board: Is it clear and unmistakable (i.e., highest degree of medical certainty) that the pre-existing tinnitus WAS NOT aggravated beyond the natural progress of the disorder by the Veteran presumed in-service incurrence of acoustic trauma? In other words, please determine whether it is clear and unmistakable that there was no increase in disability during service or that it is clear and unmistakable that any increase in disability was due to the natural progress of the preexisting condition. 2. Upon completion of the addendum, review the examiner's report to ensure substantial compliance with the Board's directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Take any necessary corrective action. 38 C.F.R. § 4.2. 3. After all of the above actions have been completed, readjudicate his claims. If the claims remain denied, issue to the Veteran a supplemental statement of the case, and afford the appropriate period of time within which to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran 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). (CONTINUED ON NEXT PAGE) 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). ______________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs