Citation Nr: 1513504 Decision Date: 03/30/15 Archive Date: 04/03/15 DOCKET NO. 13-14 241 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for left shoulder scar, secondary to a shell fragment wound. 4. Entitlement to service connection for peripheral neuropathy of the left arm. REPRESENTATION Appellant represented by: Nebraska Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran and his spouse. ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1966 to September 1968. His awards and decorations include the Purple Heart Medal and Combat Infantryman Badge, among other awards. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In August 2014 the Veteran and his spouse testified before the undersigned Veterans Law Judge via video conference. The transcript of that hearing has been associated with the Veteran's Virtual VA file. The issues of entitlement to service connection for a left shoulder scar and entitlement to service connection for peripheral neuropathy of the left arm are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran has a present diagnosis of bilateral hearing loss within the meaning of hearing loss for VA purposes; the Veteran has a present diagnosis of tinnitus. 2. The Veteran's bilateral hearing loss is at least as likely as not related to in-service noise exposure. 3. The Veteran's tinnitus that is at least as likely as not related to noise exposure in service, or to his service-connected hearing loss. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2014). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2014), requires VA to assist a claimant in obtaining evidence necessary to substantiate a claim. It also requires VA to notify the claimant and the claimant's representative of any information, medical evidence, or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim. See 38 U.S.C.A. 5103(a); Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). Given the results favorable to the Veteran, a discussion of VA's duties to notify and assist the Veteran is not necessary at this time. II. Bilateral Hearing Loss Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.303(a), 3.304 (2014). Establishing service connection generally requires (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) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Where a veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946, and develops an organic disease of the nervous system, to include sensorineural hearing loss, that becomes manifest to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2014). In the absence of evidence establishing a presumption of in-service incurrence, service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection for impaired hearing shall only be established when hearing status, as determined by audiometric testing, meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels), over a range of frequencies (in Hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. For the purposes of applying the law 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 threshold 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. See 38 C.F.R. § 3.385 (2014). In the present case, on September 27, 1966, the Veteran submitted for an audiological examination in connection with his enlistment in the military, the report of which noted the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 15 (30) 10 (25) 0 (10) 10 (20) 15 (20) LEFT 20 (35) 15 (30) 5 (15) 10 (20) 10 (15) (Service department audiometric testing conducted before November 1967 generally applied ASA standards. Thereafter, an ISO standard has been applied. The numbers in parentheses reflects a conversion to ISO standard for comparison purposes.) In July 1968, the Veteran underwent an examination in connection with his release from active duty. In his Board hearing, the Veteran testified that he did not undergo an audiological examination at that time, and that the service department filled in the results so that he could be separated from active duty. The report noted the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 N/A 0 LEFT 0 0 0 N/A 0 In December 2012, the Veteran was afforded a VA audiological examination in connection with his claim for service connection for bilateral hearing loss and tinnitus. The report of that examination noted the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 50 65 70 85 100 LEFT 30 25 45 45 65 Speech recognition was 20 percent for the right ear and 84 percent for the left ear based on the Maryland CNC Test. The VA examiner opined that the Veteran's hearing loss is less likely caused by or a result of an event in military service because the Veteran had no ratable hearing loss at the time of separation from active service. The Veteran has also submitted letters from his private physician, Dr. A.M., concerning his hearing loss and tinnitus. Particularly, in a letter dated August 2014, Dr. A.M. states that, in his opinion, the Veteran's hearing loss is as likely as not due largely, if not entirely, to his in-service noise exposure. In that letter, he states that his opinion is based on the Veteran's history of noise exposure in the military, to include turbine engines, unmuffled diesel engines, and automatic weapons fire and explosions, all without the benefit of adequate hearing protection; the Veteran's negative history for noise exposure since leaving service; the Veteran's available service medical records; and clinical notes and physical examinations. In light of the above, the Board is satisfied that the Veteran has met the burden for service connection for bilateral hearing loss. At the outset, the Board notes that the December 2012 audiological examination report shows present findings well within the threshold for a diagnosis of bilateral hearing loss. See 38 C.F.R. § 3.385. The Board also notes that the Veteran is the recipient of the Purple Heart and Combat Infantryman Badge, which establish that he "engaged in combat with the enemy." Thus, the Veteran's lay testimony alone is enough to establish that he was exposed to excessive noise while in the military. See 38 U.S.C.A. § 1154(b) (West 2014); 38 C.F.R. 3.304(d) (2014). Therefore, the question is one of nexus between the current disability and in-service noise exposure. Here, resolving reasonable doubt in favor of the Veteran, the Board is satisfied that the record shows a nexus between the two. In reaching this conclusions, the Board finds particularly probative the opinion by Dr. A.M. which considered the Veteran's medical history, history of noise exposure, both during and after service, and formed an opinion based on all available records and physical examination, that the Veteran's hearing loss is at least as likely, if not entirely, related to his in-service noise exposure. While the December 2012 VA examiner provided a negative nexus opinion, the Board does not find it probative for several reasons. First, in light of the comparison between the Veteran's entrance and separation examination reports, the Board finds credible the Veteran's contentions that he did not undergo a hearing examination upon separation from service. Therefore, the negative etiology opinion, which relies entirely upon the lack of ratable hearing loss at the time of separation, is not deemed credible. Further, the Board notes that even in the absence of in-service incurrence, service connection may still be granted if the evidence establishes a nexus between the two. See 38 C.F.R. § 3.303 (d). Here, the VA examiner relied solely on the lack on an incurrence in service to support her negative opinion. The opinion does not consider the Veteran's history of post-service noise exposure, neither does it provide a reasoned opinion based on known medical principles which the Board could use to make a reasoned decision in this matter. For these reasons, the Board finds the opinion by Dr. A.M. more probative of the cause of the Veteran's hearing loss. Thus, resolving all reasonable doubt in favor the of Veteran, the Board finds that service connection for bilateral hearing loss is warranted in this case. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2014). III. Tinnitus As discussed above, service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303 (a), 3.304. Establishing service connection generally requires (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) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, supra; Hickson, supra A veteran is competent, as a layperson, to testify as to the presence of symptoms such as ringing in the ears. Charles v. Principi, 16 Vet. App. 370, 374 (2002) (stating that "ringing in the ears is capable of lay observation"). Further, in certain situations, lay evidence may be sufficient to diagnose a medical condition. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) ("Lay testimony is competent . . . to establish the presence of observable symptomatology and 'may provide sufficient support for a claim of service connection'" (quoting Layno v. Brown, 6 Vet App. 465, 469 (1994))). In his December 2012 VA examination, the Veteran asserted that he had experienced a constant "squealing" tinnitus in both ears, the right greater than the left, which had been present since he was in the service. The VA examiner gave a diagnosis of tinnitus. Thus, there is competent and credible evidence of a current tinnitus disability. Id. Moreover, as discussed above, the Veteran was exposed to acoustic trauma while in service, thus, the question is one of nexus. Here, the Board notes that medical treatises indicate that the cause of tinnitus can usually be determined by finding the cause of a coexisting hearing loss. See, e.g., Harrison's Principles of Internal Medicine 182 (Dennis L. Kasper et al. eds., 16th ed. 2005). Further, tinnitus may occur as the symptom of nearly all ear disorders including sensorineural or noise-induced hearing loss. See The Merck Manual § 7, Ch. 82 (18th ed. 2006). Under the particular circumstances presented here, the Board is persuaded that the Veteran's tinnitus can as likely as not be attributed to either the same etiology as his service-connected hearing loss, particularly, his exposure to loud turbine and diesel engines and artillery fire, or to his service-connected hearing loss itself. Further, as opined by Dr. A.M., even presuming the Veteran's present tinnitus is not related to his service connected hearing loss, it is at least as likely as not related to his in-service noise exposure. Again, the Board finds the opinion by the December 2012 VA examiner to be less probative in this matter. Here, the VA examiner relied solely on a normal hearing exam upon separation from service as rationale for her negative etiology opinion. However, Dr. A.M. considered the Veteran's medical history and history for noise exposure and provided an opinion that is within the findings of the American Tinnitus Association (ATA) and the National Institutes of Health (NIH). Thus, resolving reasonable doubt in the Veteran's favor, service connection for tinnitus is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2014). ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMAND Once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An opinion is considered adequate when it is based on consideration of an appellant's medical history and examinations and describes the disability in sufficient detail so the Board's evaluation of the claimed disability is a fully informed one. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). VA generally must investigate the reasonably apparent and potential causes of the Veteran's condition and theories of service connection that are reasonably raised by the record or raised by a sympathetic reading of the Veteran's filing, to include those causes unknown to the Veteran. Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000). Here, the Veteran has claimed service connection for peripheral neuropathy of the left arm, secondary to his service connected arthritis of the left shoulder. In December 2012, the Veteran was afforded a VA examination in connection with that claim. In the resulting examination report, the examiner gave a positive diagnosis of peripheral neuropathy in the left arm and provided an opinion as to whether it is etiologically related to his service connected arthritis, finding that it was less likely than not to be related. However, the Board notes that the Veteran has been service connected for diabetes mellitus, type II, since August 2004. Further, in October 2014, the Veteran was awarded service connection for peripheral neuropathy of the right arm, as secondary to his service connected diabetes mellitus, type II. After reviewing the December 2012 examination report, it is not evident to the Board that the VA examiner considered the Veteran's diabetes mellitus, type II, as a possible cause of his left arm peripheral neuropathy. At the very least, the Board finds that the theory is raised by a sympathetic reading of the Veteran's claims file, and therefore, VA has a duty to investigate the possibility of a connection between the Veterans left arm peripheral neuropathy and his diabetes mellitus, type II. Regarding the Veteran's claim for service connection for a left shoulder scar, secondary to a shell fragment wound, the Board notes the Veteran is in receipt of the Purple Heart for injuries sustained to his left arm in 1967. He is also presently service connected for arthritis of the left shoulder as a result of a shrapnel wound sustained in service. In February 1998, a VA examiner found evidence of an old shrapnel wound to the left shoulder with occasional intermittent muscular strain and degenerative changes noted. In January 2013, the Veteran was afforded a VA examination in connection with his present claim. In the resulting examination report, the VA examiner indicated that the Veteran has a scar on the trunk or extremities, discussing the Veteran's reported history of a shrapnel wound in 1967, however, the examiner then states that the Veteran's left upper extremity is affected, but that an inspection of the arm, forearm and shoulder demonstrated no residual scars secondary to shrapnel. Here, the Board notes that the January 2013 examiner did not consider the Veteran's confirmed history of a shrapnel wound to the left shoulder, nor was any explanation provided as to how the Veteran could sustain a shrapnel wound without a resulting scar. At the very least, the Board finds this examination to be inconsistent and therefore inadequate for it to make a ruling on the merits. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination in connection with his claim for service connection for peripheral neuropathy of the left arm. All indicated tests and studies should be performed, and all findings should be set forth in detail. Particularly, the examination should address the Veteran's presently service connected diabetes mellitus, type II, as a potential cause of his peripheral neuropathy. The claims folder, and a copy of this remand, must be provided to and reviewed by the examiner as part of the examination. The examiner should provide an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's presently diagnosed peripheral neuropathy of the left arm is related to his active military service, or to his service-connected diabetes mellitus, type II. The examiner should provide complete medical rationale for all conclusions reached. Particularly, the examiner should be asked to provide citation to evidence in the record as well as to medical treatise evidence or known medical principles in support of all opinions and diagnoses given. 2. Schedule the Veteran for a VA examination in connection with his claim for service connection for a scar secondary to an in-service shell fragment wound. All indicated tests and studies should be performed, and all findings should be set forth in detail. The examiner should provide a complete description of any shrapnel wounds and related scars. If the examiner finds that the Veteran does not have a present scar, the examiner must rectify that finding with the fact that the Veteran was confirmed to have sustained a shrapnel wound in service and is presently service connected for arthritis secondary to that wound. The examiner should provide complete medical rationale for all conclusions reached. Particularly, the examiner should be asked to provide citation to evidence in the record as well as to medical treatise evidence or known medical principles in support of all opinions and diagnoses given. 3. After undertaking any other development deemed appropriate, the AOJ should then readjudicate the issue remaining on appeal. If a benefit sought remains denied, the AOJ should issue a supplemental statement of the case and provide the Veteran and his representative with the requisite period of time to respond. The case should then be returned to the Board for further appellate review. The appellant 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). 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 2014). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs