Citation Nr: 1342851 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 10-27 025 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to an initial compensable rating for bilateral tinea pedis with calluses REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Keyvan, Counsel INTRODUCTION The Veteran had active service from December 1975 to November 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the June 2009, October 2009 and December 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The June 2009 rating decision granted service connection for bilateral tinea pedis with calluses and evaluated it as noncompensably disabling. The October 2009 rating decision denied service connection for bilateral hearing loss and the December 2010 rating decision denied service connection for tinnitus. The Veteran appealed these decision to the Board, and the case was referred to the Board for appellate review. During the current appeal, and specifically in April 2013, the Veteran also testified at a Travel Board hearing at the RO. A transcript of the testimony has been associated with the appellant's Virtual VA claims folder. For the reasons set forth below, this appeal is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the Veteran's claims. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. Bilateral Hearing Loss and Tinnitus The Veteran contends that he has bilateral hearing loss and tinnitus as a result of his exposure to acoustic trauma while serving as a Cannon Crewmember in the United States Army. During his hearing, the Veteran asserted that he has experienced an ongoing ringing sound in his ears throughout the years. See April 2013 Hearing Transcript (T.) pp. 13-14. 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. The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See 38 C.F.R. § 3.385; see also Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Here, at the Veteran's December 1975 enlistment examination, the clinical evaluation of his ears and drums was shown to be normal, and the Veteran denied a history of ear, nose or throat trouble in his medical history report. On the authorized audiological examination, the examiner found her pure tone thresholds, in decibels, to be as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 5 10 XXXX 10 LEFT 20 15 5 XXXX 10 Based on these examination results, the Veteran was found qualified for enlistment. At the October 1978 examination conducted pursuant to the Veteran's separation from active service, the clinical evaluation of his ears and drums was shown to be normal, and the Veteran denied a history of ear, nose, or throat trouble on his report of medical history. The examination reflected pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 5 0 10 5 LEFT 20 10 5 15 5 The Veteran contends that he was exposed to loud noises and sounds associated with field artillery equipment while serving as a Cannon Crewmember in the military, and attributes his current hearing loss and tinnitus to his in-service noise exposure. In the October 2009 rating decision, the RO noted that the Veteran's separation documents reflect the fact that he did serve "in artillery" in service, and conceded the possibility that the Veteran may have been exposed to acoustic trauma in the military. The Board agrees with this determination and concludes that the Veteran's description of noise exposure while serving in the military is credible. However, the record remains unclear as to whether the Veteran has a current diagnosis of bilateral hearing loss for VA purposes, and if so, whether said hearing loss is related to his noise exposure in service. The Veteran was afforded a VA audiological examination in September 2009, at which time he described his in-service exposure to noises produced by"[c]annon fire," and noted that he used hearing protection in service. The VA examiner attempted to conduct an audiological evaluation of the Veteran, but determined that "[d]espite repeated attempts and reinstruction, the test results were not reliable and are not suitable for rating purposes...and are therefore not being reported." The examiner did note that the test results were strongly suggestive of a "non-organic hearing loss/hearing loss component." The Veteran underwent another VA audiological evaluation in October 2010, at which time he reported to experience difficulty hearing for the past two years, and further described a constant bilateral ringing sound in his ears of ten years duration. After conducting a VA audiological evaluation of the Veteran, the VA examiner also determined that these test results would not be reported due to poor reliability. According to the VA examiner, despite repeated attempts at reinstruction and retesting, "pure tone averages, which were in the moderate HL [hearing loss] range, were not in agreement with speech reception thresholds, which were in the normal range." The VA examiner further noted that the word recognition scores were "extremely poor" and "were not consistent with demonstrated communication ability." Based on her evaluation of the Veteran, the VA examiner determined that these test results were suggestive of a non organic hearing loss. Despite the fact that the Veteran's more recent audiometric test results were not considered reliable for rating purposes, earlier medical records issued from the Veteran's private treatment providers, and dated in March 2008 and March 2009, reflect the Veteran's complaints of hearing problems and occasional tinnitus. At his hearing, the Veteran testified that he currently wears hearing aids, and these hearing instruments were first issued to him in 2011, after his last VA examination. See T., p. 11. The Board further notes that during the October 2010 evaluation, the VA examiner noted that a VA audiometric report dated in April 2010 showed moderate sensorineural hearing loss at frequencies 3000-4000 Hertz in the right ear, and mild sensorineural hearing loss at frequencies 3000 to 4000 Hertz in the left ear. However, according to the VA examiner, these results were deemed to be of "poor reliability" by the VA treatment provider, due to poor agreement between speech reception thresholds and pure tone averages. The April 2010 audiometric report referenced by the examiner is currently not associated with the claims file. The Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically in the claims file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, as the identified VA audiometric report may have a bearing on the Veteran's claim, on remand the AOJ must attempt to obtain the above-identified audiometric report, and any other relevant records reviewed by the RO that are pertinent to the Veteran's claims. Furthermore, the fact that the Veteran began using hearing aids one year after his last VA audiological evaluation leads the Board to question whether his hearing loss has evolved and worsened since his last VA audiological evaluation. Even though both VA examiners determined that the audiological findings were not considered reliable for rating purposes, in light of the Veteran's contentions of ongoing and deteriorating hearing loss and given that the record remains unclear as to whether the Veteran has a current diagnosis of hearing loss for VA purposes, the Board finds that the Veteran should be scheduled for another VA audiological evaluation in an attempt to obtain contemporaneous and accurate audiometric testing to determine the current severity of his hearing loss. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (which stipulates that, when the record does not adequately reveal the current state of the claimant's disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination). See also Caluza v. Brown, 7 Vet. App. 498, 505-06 (1995) & Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). During the hearing, the Veteran's representative argued that he Veteran's claim for service connection for tinnitus is somewhat intertwined with the claim for hearing loss. See T., p. 9. As such, the issue of service connection for bilateral hearing loss must be resolved prior to resolution of the claim for tinnitus. Bilateral Tinea Pedis with Calluses The Veteran contends that his service-connected bilateral tinea pedis is more disabling than currently evaluated. After a review of the claims folder, the Board finds that a remand of the Veteran's rating claim for his skin disorder is required to allow for further development of the record. During his hearing, the Veteran testified that his bilateral tinea pedis with calluses had worsened since his last VA examination. See T., p. 8. The record reflects that the Veteran was last afforded a VA examination in connection to this disorder in May 2009. When a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995). See also Snuffer v. Gober, 10 Vet. App. 400 (1997) & Caffrey v. Brown, 6 Vet. App. 377 (1994). In addition, the duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. See Peters v. Brown, 6 Vet. App. 540, 542 (1994). As it has been over four years since the Veteran's last VA examination in connection with this disorder, and given that the Board is precluded from arriving at its own unsubstantiated medical conclusions and is instead bound by the medical evidence of record on these matters, further development is required. See Jones v. Principi, 16 Vet. App. 219, 225 (2002), citing Smith v. Brown, 8 Vet. App. 546, 553 (1996) (en banc); Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Veteran also testified at his hearing that VA refers him to a private treatment facility where he receives bi-annual treatment for his service-connected skin disability every six months. See T., pp. 3-5. As this matter is being returned for additional development, ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002). Accordingly, the case is REMANDED for the following action: 1. Obtain from the Tampa and/or Gainesville VA Medical Centers (VAMCs), or any other VA treatment facility, the April 2010 VA audiometric report referenced by the October 2010 VA examiner. In addition, request relevant records pertaining to treatment the Veteran has received for his hearing loss, tinnitus, and tinea pedis from the Tampa and Gainesville VAMCs from May 2010 to the present time. All such available documents should be associated with the claims file, and all efforts to obtain the evidence must be noted it the claims folder. 2. Ask the Veteran to provide the full address for the private treatment facility where he receives bi-annual treatment for his tinea pedis with calluses, as well as the specific dates in which he received treatment there. After obtaining the appropriate release of information form(s) where necessary, procure and associate with the claims folder copies of records of any skin treatment that the Veteran may have received for his bilateral tinea pedis with calluses. If any records are not obtained, inform the Veteran and provide him an opportunity to submit the records. All such available documents should be associated with the Veteran's claims folder. Any negative responses should be properly annotated into the record. 3. Then, once these records have been obtained and associated with the claims file, schedule the Veteran for an appropriate VA audiological examination to determine the nature and etiology of his current hearing loss and tinnitus. The claims folder and a copy of this REMAND must be made available to, and reviewed by, the examiner in conjunction with the examination. A notation to the effect that this review has taken place should be made in the evaluation report. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, and all pertinent pathology should be noted in the examination report. Following a review of the record and an examination of the Veteran, the examiner should determine whether the Veteran has any hearing loss and tinnitus (bilateral or unilateral). The examiner should then express an opinion as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that any hearing loss and/or tinnitus diagnosed on examination, had its clinical onset in service or is otherwise related to the Veteran's military service, to include the Veteran's conceded in-service noise exposure. In answering this question, the examiner should address the Veteran's assertions that he has experienced a ringing sound in his ears since service, and should set forth the medical reasons for accepting or rejecting the Veteran's statements regarding continuity of symptoms since his military service. If the examiner finds that the Veteran's disability(ies) is (are) not related to his service, then he or she must provide a complete rationale upon which his or her opinion is based, and must include a discussion of the medical principles as applied to the medical evidence and facts used in establishing his or her opinion. . If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 4. Then, make arrangements with the appropriate VA medical facility for the Veteran to be afforded a VA examination to determine the current degree of severity of his service-connected tinea pedis. The claims file, including a copy of this REMAND, must be made available to the examiner for review, and the examination report should reflect that such review was completed. All necessary tests should be conducted. The examiner should identify the nature, frequency, and severity of all current manifestations of the Veteran's bilateral tinea pedis with calluses. Pursuant to regulatory requirements, the examiner should provide specific findings as to the percentage of the Veteran's body affected by this disorder, as well as the percentage of the exposed areas. The examiner must also indicate whether treatment has included systemic therapy such as corticosteroids or other immunosuppressive drugs and the total duration during the past 12 month period. Also, the examiner should specifically comment on the impact of the Veteran's bilateral tinea pedis with calluses on his ability to engage in any type of full-time employment, including any form of sedentary work, and whether, in the examiner's opinion, this service connected disability is of such severity to result in an inability to obtain and to maintain employment. 5. After completing the above, and undertaking any additional evidentiary development deemed necessary, readjudicate the issues remaining on appeal. If any benefit sought is not granted, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of her claim. 38 C.F.R. § 3.655 (2012). The Veteran has the right to submit additional evidence and argument on the matter that 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 (Court) 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). _________________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).