Citation Nr: 1601894 Decision Date: 01/15/16 Archive Date: 01/21/16 DOCKET NO. 08-31 754 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to an increased rating for a left knee disorder, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina (RO). The issue involving an increased disability rating for the Veteran's service-connected left knee disorder is addressed in the Remand portion of the decision. FINDINGS OF FACT 1. An October 1966 pre-induction examination revealed a pre-existing hearing defect, which resulted in a hearing profile of "H-3," which was disqualifying for service. 2. A June 1967 entrance examination revealed a less severe hearing defect, which resulted in a hearing profile of "H-2" which was not disqualifying for service. 3. The Veteran experienced noise exposure during service in the form of small arms fire and being an operator of an amphibious transport vehicle. 4. Beginning in February 1969 the Veteran reported an increase in difficulty hearing, and an audiology examination revealed bilateral severe sensorineural hearing loss and his hearing profile of "H-3" was assigned. 5. VA examinations reveal a current hearing loss disability for VA purposes. CONCLUSION OF LAW 1. Bilateral hearing loss was incurred in active military service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2014); 38 C.F.R. § 3.303, 3.385 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for disability due to a disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after separation, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Moreover, sensorineural hearing loss may be presumed to have been incurred during active military service if they are manifest to a degree of 10 percent within the first year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet. App. 341, 346 (1999). Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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. Service connection may also be established for a current disability on the basis of aggravation of a pre-existing disorder. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303(a), 3.304, 3.306 (2015). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306(a). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306(b). Generally, veterans are presumed to have entered active service in sound condition as to their health except for defects noted at the time of examination for entrance into service. 38 U.S.C.A. § 1111 (West 2002); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The law provides that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities or disorders noted at the time of examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). The presumption only attaches where there has been an induction examination in which the disability subsequently noted was not detected. See Bagby, 1 Vet. App. at 227. The evidence cited below shows that the defect of impairment of hearing was noted at the time of entrance into service. Accordingly, the presumption of soundness does not attach. Prior to November 1967, service department audiological examinations were conducted using American Standards Association (ASA) units of measurement. Current audiological examination standards use International Standards Organization (ISO) units of measurement. Accordingly, the Board has converted the audiology data reported in ASA units on the October 1966 and June 1967 service department examination reports to ISO units. In October 1966 a pre-induction examination of the Veteran was conducted. Audiological evaluation revealed pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 35 50 / 70 LEFT 25 30 55 / 60 In the accompanying report of medical history, the Veteran reported a history of ear, nose, or throat trouble, but denied a history of hearing loss. The Veteran explained that he had ear trouble as a child with infection, but that he did not have any complaints at that time. Nevertheless, the examiner indicated that the Veteran had "impairment of hearing" as a defect. A physical profile score of "H-3" was assigned for hearing and the Veteran was noted to be disqualified from military service due to his hearing impairment. In June 1967 another audiological evaluation was conducted and revealed pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 25 / 35 LEFT 10 15 15 / 55 The defect of impairment of hearing was not removed from the examination report. Rather, as a result of these hearing test results, the Veteran's PUHLES profile for hearing was upgraded from "H-3" to "H-2," and he was found qualified for military service. Based on this examination, the Veteran entered active duty in August 1967. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (noting that the "PULHES" profile reflects the overall physical and psychiatric condition of the veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)). Although the Veteran did not serve in combat, the evidence of record clearly establishes that he incurred acoustic trauma in for form of noise exposure during service. Service records establish that his military specialty was as an amphibious transport driver, and that he served on the command rifle and pistol shooting team. Accordingly, he incurred noise exposure during service. A January 1969 service department otolaryngology treatment record notes that the Veteran complained of decreased hearing for many years, and that he felt that his hearing loss became worse. He reported that he had an infection during childhood and that he had worked around loud noise during service. The provisional diagnosis was hearing loss of unknown cause. After evaluation in February 1969, including audiology testing, the diagnosis was noise induced hearing loss. In February 1969 audiology consultation was conducted. An audiological evaluation was performed, and the diagnosis was bilateral sensorineural high frequency severe sensorineural hearing loss, with adequate hearing in the speech frequencies. A permanent "H-3" profile was assigned for the Veteran's hearing including limitations that he should not be assigned to guard duty, sentry duty, or duty at a forward listening post "where the safety of himself and others requires acute hearing." A February 1969 physical profile record also indicates that a permanent "H-3" profile was assigned for the Veteran's hearing. An April 1969 audiometric evaluation reveals that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 15 15 30 80 LEFT 20 15 15 70 70 In June 1969, separation examination of the Veteran was conducted. Audiological evaluation revealed pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 30 55 70 LEFT 10 10 40 50 50 In July 2014, a VA audiology examination established that the Veteran had a current hearing loss disability for VA purposes. 38 C.F.R. § 3.385. An August 2014 addendum provides the examiner's medical opinion which states that the service treatment records showed that high frequency hearing loss was present throughout active duty both, with hearing scores in 1966 and 1967 and throughout the remaining years of military service. The reports indicate hearing loss since childhood with no significant shift from pre-induction to separation. The examiner's opinion was that there was no significant shift in hearing thresholds from entrance to separation examination in either ear to indicate any damage to the auditory system on active duty or to indicate any progression of per-existing hearing loss. The assertion that was no significant shift in the Veteran's hearing thresholds from entrance to separation examination is not accurate. The October 1966 pre-induction audiogram shows similar results to those conducted in 1969, including on separation examination. However the June 1967 audiogram, conducted the month before entry into service, reveals audiology results that are significantly better than those indicated in any of the other service treatment records. The Veteran's physical profile for hearing was changed from an "H-3" to an "H-2" based on these audiology results and he was inducted into service, despite the prior findings showing a disqualifying level of hearing loss on the October 1966 pre-induction examination. The Board must accept that the level of hearing noted on the June 1967 audiogram as the accurate reflection of the level of the Veteran's hearing upon entry into service. By separation in 1969, the Veteran's hearing thresholds had increased. Based upon the Veteran's exposure to noise during active service; the hearing threshold shift shown between the June 1967 entrance examination and the 1969 separation examination; and, his increase in permanent physical profile for hearing from a "H-2" on entry to a disqualifying "H-3" on separation; the Board finds that the evidence shows that aggravation of a pre-existing hearing loss occurred during service. Resolving all doubt in the Veteran's favor, service connection for bilateral hearing loss is warranted. ORDER Service connection for bilateral hearing loss is granted. REMAND X-ray evidence of record shows arthritis of the left knee. However, x-ray examination conducted during a June 2007 VA examination indicated that left knee was "unremarkable." The July 2010 VA examination report indicates that x-ray examination of the knee was not conducted because the Veteran was submitting a copy of a recent private x-ray examination report. However, the private x-ray report is not of record. A VA Compensation and Pension examination indicates that imaging studies were conducted and reviewed showing left knee arthritis. However, the dates of the x-ray examination are not indicated, and it is unclear if an x-ray examination was conducted at that time, or if prior VA x-ray examination reports were merely reviewed in the medical records. In either case, the radiology reports are not of record, which was the defect that required the prior remand in June 2014. Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the case is remanded for the following action: 1. The radiology report for the x-ray examination conducted during the August 2014 Compensation and Pension examination must be associated with the Veteran's electronic claims file. If an x-ray examination was not conducted in August 2010, the Veteran must be afforded a VA examination to determine the current severity of his service-connected left knee disorder. The electronic claims file must be made available to and reviewed by the examiner in conjunction with the examination. The examiner must describe all symptomatology due to the Veteran's service-connected left knee disorder, to include whether there is any instability, weakness, fatigability, incoordination, flare-ups, lateral instability, or subluxation. All indicated tests and studies, to include range of motion testing of the left knee, expressed in degrees, with standard ranges provided for comparison purposes, must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. A current x-ray of the Veteran's left knee must be obtained. The examiner must state whether there is any functional loss due to pain, weakened movement, excess fatigability, or incoordination causing additional disability beyond that reflected on range of motion measurements, and if so, the additional degree of impairment. With respect to any subjective complaints of pain, the examiner must comment on whether pain is visibly manifested on movement of the left knee, the presence and degree of, or absence of, muscle atrophy attributable to the service-connected left knee disorder, the presence or absence of changes in condition of the skin indicative of disuse due to the service-connected left knee disorder, and the presence or absence of any other objective manifestation that would demonstrate disuse or functional impairment due to pain attributable to the service-connected left knee disorder. 2. The RO must notify the Veteran that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained and associated with the evidence of record that shows that notice scheduling the examination was sent to his last known address. Documentation must be also be obtained and associated with the evidence of record demonstrating any notice that was sent was returned as undeliverable. 3. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim on appeal must be readjudicated. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs