Citation Nr: 1340971	
Decision Date: 12/12/13    Archive Date: 12/20/13

DOCKET NO.  10-39 035	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

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

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to an initial compensable evaluation for left ear hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

E. D. Anderson, Counsel


INTRODUCTION

The Veteran served on active duty from July 1981 to August 1985. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.  
 
The Veteran testified before the undersigned Veterans Law Judge at a March 2012 videoconference hearing, and a transcript of this hearing is of record.  

As an initial matter, the Board notes that the Veteran's claim for entitlement to service connection for right ear hearing loss was characterized by the RO as whether new and material had been presented to reopen a previously denied claim.  However, the Board notes that the Veteran's initial claim for right ear hearing loss was denied in April 2008, he was notified of the RO's decision in June 2008, and in April 2009, the Veteran submitted a statement requesting "an increase in the finding of my service connected hearing loss for my left ear due to the tinnitus in my ears I would also like the finding of my right ear hearing loss to be consider for service connected as well."  The Board finds that this can be construed as a timely notice of disagreement with the April 2008 RO decision.  Thereafter, he perfected his appeal.  There is no need to present new and material evidence as the Veteran properly appealed the initial rating decision which denied his claim. 

The issues of entitlement to service connection for tinnitus and entitlement to an initial compensable disability evaluation for left ear hearing loss 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.



FINDING OF FACT

The Veteran's right ear hearing loss is related to acoustic trauma in military service.


CONCLUSION OF LAW

The criteria for entitlement to service connection for right ear hearing loss have been met.  38 U.S.C.A. § 101, 1112, 1131 (West 2002); 38 C.F.R. § 3.303, 3.385 (2013).  


REASONS AND BASES FOR FINDING AND CONCLUSION

Service Connection

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013).  In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) 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).

Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2013). 

A "hearing loss" disability is defined for VA compensation purposes with regard to audiological testing involving puretone frequency thresholds and speech discrimination criteria.  38 C.F.R. § 3.385 (2013).  For 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 of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  Id.

The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  

The Veteran is claiming hearing loss secondary to exposure to acoustic trauma in service.  The Veteran's military occupational specialty was a rifleman, so exposure to loud noise in service is conceded.  Entitlement to service connection for left ear hearing loss was granted in an April 2008 RO decision, but entitlement to service connection for right ear hearing loss was denied because the Veteran did not meet the criteria for a hearing loss disability based on the results of the April 2008 audiological examination.  

However, an audiological examination in June 2009 showed auditory threshold at 500, 1,000, 2,000, 3,000, and 4,000 Hertz (Hz) of 10, 20, 15, 25, and 40 decibels, respectively.  Speech recognition scores on the Maryland CNC test were 88 percent in the right ear.  Thus, the Veteran currently meets the statutory criteria for a hearing loss disability in the right ear under 38 C.F.R. § 3.385.  See McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that a current disability exists if the diagnosed disability is present at the time the claim is filed or during the pendency of the claim).  

Additionally, at the April 2008 VA examination, the VA audiologist examining the Veteran opined that the Veteran's hearing loss is caused by or a result of his military service, noting that the Veteran's discharge examination revealed aggravated hearing loss in the left ear, as well as standard threshold shifts bilaterally.

As the Veteran has a current hearing loss disability in his right ear that has been associated with his active service by competent medical evidence, entitlement to service connection for right ear hearing loss is granted.  38 C.F.R. § 3.303.

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).  In this case, the Board is granting in full the benefit sought on appeal.  Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed.  


ORDER

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


REMAND

The Veteran is also seeking entitlement to service connection for tinnitus.  This claim was denied in a June 2009 RO decision, based on the medical opinion of a VA audiologist, who concluded that the Veteran's tinnitus is not related to service because his disability did not have onset until many years after service.  

The Veteran has provided conflicting statements regarding the onset of his disability, telling a June 2009 VA examiner that his tinnitus was of three or four years duration, while testifying at his personal hearing that it had onset after he got out of service and was of ten or fifteen years duration.  However, although the Veteran's conflicting statements make it difficult to pinpoint the exact onset of his disability, he has a current diagnosis of tinnitus and a conceded history of noise exposure in service.  

Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2013).  The June 2009 VA examiner focused only on when the Veteran's tinnitus first manifested and failed to adequately address whether the Veteran's in-service exposure to loud noise and service connected hearing loss caused the Veteran's tinnitus, regardless of when this disability had onset.  On remand, the case should be returned to the June 2009 VA examiner for an addendum opinion.  

Lastly, the Veteran is seeking entitlement to an initial compensable evaluation for his left ear hearing loss.  The Veteran was last afforded a VA examination of his hearing loss in June 2009, more than four and a half years ago.  In his August 2010 substantive appeal and at his March 2012 hearing, he reported that his hearing has become progressively worse since his last examination.  

Where the record does not adequately reveal the current state of a disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination.  See Suttman v. Brown, 5 Vet. App. 127, 138 (1993); Green (Victor) v. Derwinski, 1 Vet. App. 121, 124 (1991).  An examination too remote for rating purposes cannot be considered "contemporaneous."  See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994).  Additionally, VA generally has a duty to provide additional examination when the claimant alleges that the disability in question has undergone an increase in severity since the time of the last examination.  VAOPGCPREC 11-95 (Apr. 7, 1995).  

Accordingly, on remand, the Veteran should be afforded a new VA examination of his hearing loss disability.  

Accordingly, the case is REMANDED for the following action:

1. Return the claims folder to the VA audiologist who conducted the Veteran's June 2009 VA examination for an addendum medical opinion.  If that examiner is not available, a new VA medical examination and medical opinion should be obtained.  

The examiner is asked to opine whether it is at least as likely as not (fifty percent or greater) that the Veteran's tinnitus either had onset in service or was caused by the Veteran's active military service, to include his in-service noise exposure; and whether it is at least as likely as not that service-connected hearing loss caused or aggravated tinnitus.  

A complete rationale for these opinions should be provided.  All opinions should be based on examination findings, historical records, and medical principles.  The examiner should fully articulate a sound reasoning for all conclusions made.  

Additionally, the examiner is also reminded to consider the Veteran's lay statements regarding the nature and onset of his disability.

If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice.

The Veteran's claim folder and a copy of this REMAND should be furnished to the examiner, who should indicate in the examination report that he or she has reviewed the claims file.  

All findings should be described in detail and all necessary diagnostic testing performed. 

The claims file must be properly documented regarding any notifications to the Veteran as to any scheduled examination.

2. The RO should also schedule the Veteran for a VA examination of his service-connected bilateral hearing loss.  The examiner should note any functional impairment caused by the Veteran's disability, including a full description of the effects of his disability upon his ordinary activities, if any.

The Veteran's claim folder and a copy of this REMAND should be furnished to the examiner, who should indicate in the examination report that he or she has reviewed the claims file.  

All findings should be described in detail and all necessary diagnostic testing performed. 

The claims file must be properly documented regarding any notifications to the Veteran as to any scheduled examination.

3. When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence.  If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The appellant has the right to submit additional evidence and argument on the 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. 2012).



______________________________________________
K. Parakkal
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs