Citation Nr: 1601469	
Decision Date: 01/13/16    Archive Date: 01/21/16

DOCKET NO.  12-03 008	)	DATE
	)
	)

Received from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

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

2.  Entitlement to service connection for left ear sensorineural hearing loss.

3.  Entitlement to service connection for tinnitus.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

The Veteran and his friend, J. L. W.



ATTORNEY FOR THE BOARD

J. Jenkins, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from November 1966 to November 1968.

These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. 

The Veteran had a hearing before the undersigned Veterans Law Judge (VLJ) in November 2013 and the transcript is of record.

In an October 2014 decision, the Board denied entitlement to service connection for bilateral hearing loss and tinnitus and remanded the issues of service connection for diabetes, hypertension, residuals of burns or other injuries to the bilateral feet, entitlement to an increased rating for posttraumatic stress disorder, and entitlement to a total disability rating based on individual unemployability.  The Veteran appealed the Board's denial of his bilateral hearing loss and tinnitus claims to the United States Court of Appeals for Veterans Claims (the Court).  In an October 2015 Order, the Court granted the parties' joint motion for remand (JMR) and vacated the Board's October 2014 decision as it pertained to entitlement to service connection for bilateral hearing loss and tinnitus.  The other appeals were not disturbed by the October 2015 Court Order and have not yet been returned to the Board subsequent to the October 2014 remand.  

The issue of entitlement to service connection for right ear hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).



FINDINGS OF FACT

1.  The Board finds that the Veteran's preexisting left ear hearing loss was aggravated by active duty.

2.  The Veteran's tinnitus is related to his service-connected left ear hearing loss.


CONCLUSIONS OF LAW

1.  The criteria for service connection for left ear hearing loss have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.385 (2015).

2.  The criteria for service connection for bilateral tinnitus have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2015); 38 C.F.R. §§ 3.303, 3.310, 3.385 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist 

In this decision, the Board grants entitlement to service connection for left ear hearing loss and tinnitus, which constitutes a complete grant the Veteran's claims decided herein.  Therefore, no discussion of VA's duty to notify or assist is necessary.

Legal Criteria

Service connection may be established for a disability resulting from a disease or injury in service, or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 U.S.C.A. §§ 1110 (West 2014); 38 C.F.R. § 3.303 (2015).  Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an 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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004).

If a Veteran seeks service connection for a preexisting disorder noted upon entry into service, the Veteran has the burden of showing that there was an increase in disability during service to establish the presumption of aggravation.  See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) (stating that the Veteran bears the burden of establishing that there was an increase in the disability during service).  If the Veteran meets his burden of demonstrating an increase in service, the disability is presumed to have been aggravated in service, and the burden is on the Secretary to rebut that presumption.  Horn v. Shinseki, 25 Vet. App. 231, 234 (2012); 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (2015).  To rebut that presumption, the Secretary must show by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease.  Id. at 235 n. 6; 38 U.S.C. § 1153 (West 2014).

Service connection may also be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310 (2015); Allen v. Brown, 7 Vet. App. 439 (1995) (holding that service connection on a secondary basis requires evidence sufficient to show that the current disability was caused or aggravated by a service-connected disability).  To establish secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between a service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509 (1998).

Analysis 

Left Ear Hearing Loss

The Veteran contends that his current left ear hearing loss disabilities are related to his period of active service.

The evidence of record demonstrates that the Veteran has a left ear hearing loss disability for VA purposes under 38 C.F.R. § 3.385 (2015).  Accordingly, the first Shedden element is met.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004).

With respect to evidence of an in-service disease or injury, the Veteran's DD Form 214 shows that his military occupational specialty was as a heavy truck driver.  His DD Form 214 also indicates that he achieved Marksman status with the M-14 rifle and Expert status with the M-16 rifle and M-60 machine gun.  The Veteran testified that he was exposed to loud noises from vehicles and at the firing range without hearing protection.  The Board finds no reason to doubt the Veteran's description of in-service noise exposure and the description is generally consistent with the known circumstances of his military service.  Accordingly, the second Shedden element is met.  Id.

As to nexus evidence between the Veteran's current left ear hearing loss and his in-service acoustic trauma, the Veteran was provided with VA audiology examination in March 2011.  The Board finds that the audiology report is inadequate for adjudicating the Veteran's claim.  Specifically, the examiner indicated that the Veteran's hearing was normal bilaterally at entrance, which is inaccurate.  As such, the examiner's opinion regarding the etiology of the Veteran's hearing loss is of no probative weight.  

The Board notes that the Veteran's June 1966 service entrance examination indicated that he had preexisting left ear hearing loss.  The Board further notes that service department audiometer test results prior to October 31, 1967 are assumed to have been reported in American Standards Association (ASA) units, rather than the current International Standards Organization (ISO) units.  Conversion to ISO units is accomplished by adding 15 decibels to the ASA units at 500 Hertz, 10 decibels to the ASA units at 1000 Hertz, 2000 Hertz, and 3000 Hertz, and 5 decibels to the ASA units at 4000 Hertz.  

When the Veteran's June 1966 audiometric results are converted to the current ISO standard, they are as follows:



HERTZ

500
100
2000
3000
4000
LEFT
30
20
10
20
30

As indicated above, the Veteran's audiometric threshold exceeded 20 decibels at 500 and 4000 Hertz.  See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (noting that the threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss).  As such, left ear hearing loss was demonstrated on the Veteran's service entrance examination, and the presumption of soundness does not attach with regard to the Veteran's left ear.  

Nonetheless, a preexisting injury or disease will be considered to have been aggravated by active military service, where there is an increase in disability during such service, unless there is clear and unmistakable evidence that the increase in disability is due to the natural progress of the disease.  38 U.S.C.A. § 1153 (West 2014); 38 C.F.R. § 3.306(a) (2015).

With regard to in-service aggravation, the record contains a September 1968 report of medical examination at separation.  As the audiometric results are dated after October 31, 1967, the above noted presumption regarding conversion from ASA and ISO does not apply and there is no need to convert the results to ISO.  

The Veteran's September 1968 audiometric results are as follows:


HERTZ

500
100
2000
3000
4000
LEFT
5
5
0
35
0

The Board notes that the Veteran's September 1968 audiometric test results demonstrate an increase in his preexisting left ear hearing loss disability during service.  Specifically, his left ear acuity at 4000 Hz went from 30 decibels to 35 decibels.  In the absence of clear and unmistakable evidence that the preexisting hearing loss was not aggravated by service, the presumption of in-service aggravation is applicable.  Accordingly, the third Shedden element is met with respect to the Veteran's claims for a left ear hearing loss disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Thus, resolving all reasonable doubt in favor of the Veteran, service connection for a left ear hearing loss is warranted.  38 C.F.R. § 3.102 (2015).  See also 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

Tinnitus

The March 2011 VA examination report indicates that the Veteran is diagnosed with tinnitus.  Additionally, the decision above granted service-connected for a left ear hearing loss disability.  Thus, the first and second Wallin elements are met.  See Wallin v. West, 11 Vet. App. 509 (1998).


Regarding the third element, nexus evidence establishing a connection between the Veteran's service-connected disability and his current tinnitus, the March 2011 examiner indicated that the Veteran's tinnitus was more likely than not a symptom associated with the Veteran's hearing loss.  As the above decision grants service connection for left ear hearing loss and there is an etiological opinion relating the Veteran's tinnitus, at least in part, to his left ear hearing loss service connection is warranted.  38 C.F.R. § 3.310 (2015); Allen v. Brown, 7 Vet. App. 439 (1995).


ORDER

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

Entitlement to service connection for tinnitus is granted.


REMAND

With regard to the Veteran's right ear hearing loss, the Board finds that a remand for an adequate VA examination is warranted.  The March 2011 VA examiner indicated that the Veteran's hearing was normal bilaterally at entrance.  However, as noted above, the Veteran had pre-existing left hearing loss at entrance.  

When the Veteran's June 1966 right ear audiometric results are converted to the current ISO standard, they are as follows:


HERTZ

500
100
2000
3000
4000
RIGHT
15
15
10
15
20

Accordingly, the examiner's statement regarding the Veteran's right ear acuity was correct, even after his June 1966 right ear audiometric results were converted from ASA to ISO.  The Board notes that the Veteran's representative requested another VA examination in his November 2015 Appellate Brief.  As the examiner's inaccurate statement regarding the Veteran's left ear hearing loss at separation, arguably calls into question the examiner's review of the record, on remand the Veteran should be provided another VA examination to determine the etiology of his right ear hearing loss disability. 

Additionally, an April 2010 VA treatment record noted that the Veteran had an unnamed private physician.  On remand any outstanding private treatment records related to the Veteran's right ear hearing loss disability should be obtained and associated with the record. 

Accordingly, the case is REMANDED for the following actions:

1.  Obtain and associate with the record all VA treatment records for the Veteran dated from May 2010 to present.  All attempts to obtain these records must be documented in the claims file.

2.  Request that the Veteran complete a VA Form 21-4142, Authorization and Consent to Release Information to VA, for any private treatment records related to his right ear hearing loss disability.  If any private records are identified, the RO must make two attempts to obtain the records, unless the first attempt demonstrates that further attempts would be futile.  If records are identified, but not obtained, the RO must inform the Veteran (1) of the records that were not obtained, (2) the steps taken to obtain them, (3) that the claim will be rated based on the evidence available, and (4) if the records are later submitted, the claim may be readjudicated.

3.  Thereafter, schedule the Veteran for a VA audiological examination, with an examiner other than the March 2011 examiner, to determine the etiology of his right ear hearing loss disability.  The claims file and a copy of this remand must be reviewed by the examiner.  The examiner should opine whether it is at least as likely as not (50 percent or greater degree of probability) that the Veteran's right ear hearing loss disability began in service, manifested to a compensable degree within a year of the Veteran's November 1968 separation from service, was caused by service, or is otherwise related to service, to include his conceded in-service noise exposure. 

In rendering the above requested opinions, the examiner should address the lay statements concerning in-service and post-service audiological symptoms and noise exposure, the audiometric testing in June 1966 and September 1968, and the Veteran's lay statements regarding post-service noise exposure. 

The examiner should note that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service.  Hensley v. Brown, 5 Vet. App. 155, 159 (1993). 

The examiner must provide complete rationales for all conclusions reached.
4.  Finally, readjudicate the claim.  If the benefit sought on appeal remains denied, provide a Supplemental Statement of the Case to the Veteran and his representative, and an appropriate period in which to respond.  Then, if warranted, return the appeal to the Board.

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 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).



______________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs