Citation Nr: 1617533	
Decision Date: 05/02/16    Archive Date: 05/13/16

DOCKET NO.  07-28 829	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUES

1.  Whether new and material evidence has been received sufficient to reopen a service-connection claim for a bilateral hearing loss disability.

2.  Whether new and material evidence has been received sufficient to reopen a service-connection claim for tinnitus.

3.  Entitlement to service connection for a bilateral hearing loss disability.

4.  Entitlement to service connection for tinnitus.

5.  Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD).


REPRESENTATION

Veteran represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

V. Chiappetta, Counsel


INTRODUCTION

The Veteran served on active duty from June 1983 to July 1990.  

This matter is before the Board of Veterans' Appeals (the Board) on appeal from September 2006 and September 2008 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.  

The Veteran testified before a Veterans Law Judge at a personal hearing in September 2010.  A transcript of that hearing has been associated with the Veteran's claims file.  

The Board remanded the Veteran's appeal in December 2011, to include the Veteran's service-connection claims for left hip, left knee, bilateral ankle, and back disabilities.  The RO subsequently granted each of these four claims in August 2014 and February 2015 rating decisions.  Accordingly, they are no longer in appellate status.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997).

The Veterans Law Judge who presided over the September 2010 hearing and ordered the development in the Board's December 2011 remand is no longer employed at the Board.  The Veteran was notified of this fact in a March 2, 2016 letter.  In response, the Veteran elected to be rescheduled for a videoconference hearing with another Veterans Law Judge to discuss the remaining issues on appeal.  The Board has reviewed the record, and has determined that the current evidence is sufficient to reopen and grant the Veteran's bilateral hearing loss and tinnitus claims without first having to solicit additional testimony at another personal hearing.  Doing so in no way prejudices the Veteran or deprives him of any due process protection, as the Board's action below represents a full grant of the Veteran's hearing loss and tinnitus claims.  

The Veteran's psychiatric disability claim addressed in the REMAND portion of the decision below and REMANDED to the Agency of Original Jurisdiction (AOJ) so that the requested hearing may be scheduled.


FINDINGS OF FACT

1.  The RO in Los Angeles, California denied the Veteran's service-connection claims for a bilateral hearing loss disability and for tinnitus in a July 2002 rating decision; the Veteran did not appeal these determinations, nor did he submit new and material evidence within one year. 

2.  The evidence received since the RO's July 2002 rating decision relates to unestablished facts necessary to substantiate his service-connection claims for a bilateral hearing loss disability and for tinnitus.  

3.  The evidence of record supports a finding that the Veteran has a current bilateral hearing loss disability that is related to exposure to hazardous noise levels during his period of active duty service.  

4.  The evidence of record supports a finding that the Veteran has a current tinnitus disability that is related to exposure to hazardous noise levels during his period of active duty service.  





CONCLUSIONS OF LAW

 1.  The July 2002 rating decision denying the Veteran's service-connection claims for a bilateral hearing loss disability and for tinnitus is final.  38 C.F.R. §§ 3.156, 20.1103 (2015).
 
 2.  As new and material evidence has been received, the Veteran's service-connection claims for a bilateral hearing loss disability and for tinnitus are reopened.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015).

3.  A bilateral hearing loss disability is due to disease or injury that was incurred in active duty service.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015).

4.  Tinnitus is due to disease or injury that was incurred in active duty service.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence.  38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015).  To the extent that there may be any deficiency of notice or assistance with respect to the Veteran's bilateral hearing loss and tinnitus claims, there is no prejudice to the Veteran in proceeding with adjudication given the favorable nature of the Board's decisions below.

The Board adds that the AOJ recertified the Veteran's hearing loss and tinnitus claims to the Board without readjudicating the issues in a Supplemental Statement of the Case, as instructed by the Board in its December 2011 decision.  As above, because the Board is reopening and granting these claims in full, there is no prejudice in the RO's failure to comply with the Board's remand instructions with respect to these issues.

Analysis

The RO originally denied the Veteran's service-connection claims for a bilateral hearing loss disability and for tinnitus in a July 2002 rating decision, in pertinent part based on findings that the Veteran had no hearing loss disability for VA purposes at the time, and that no evidence linked the Veteran's tinnitus to the Veteran's period of service.  See the July 2002 RO rating decision, at 3-4.  The Veteran did not appeal, nor did he submit new and material evidence within a year of the RO's decision.  As such, the July 2002 rating decision is final.  See 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. § 20.1103 (2015).  In relation to his claim to reopen, the Veteran has submitted medical evidence clearly identifying hearing loss disability for VA purposes, and a medical opinion linking both his hearing loss disability and tinnitus to service.   See Dr. C.R.R.'s September 15, 2014 audiological examination report.  The Board finds such evidence to be new and material under the provisions of 38 C.F.R. § 3.156.  The appeals are accordingly reopened. 

Turning to the merits of the Veteran's claims, 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 service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009).  Service connection may also be granted for any disease diagnosed after discharge when all the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

Hearing loss for the purpose of VA disability compensation is considered a disability 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 (2014).  

With respect to hearing loss, the medical evidence of record demonstrates that the Veteran has a current bilateral hearing loss disability for VA purposes.  A September 15, 2014 audiogram filled out by Dr. C.R.R. demonstrates that the Veteran has an auditory threshold of 40 decibels or greater at the frequencies of 2000, 3000 and 4000 Hertz in his right ear, and at 1000, 2000, 3000, and 4000 Hertz in his left.  See 38 C.F.R. § 3.385.  

With respect to tinnitus, the Board notes that tinnitus is a condition that may be diagnosed by its unique and readily identifiable features, and the presence of the disorder is not a determination that is medical in nature and is capable of lay observation.  See Charles v. Principi, 16 Vet. App. 370, 374   (2002) (noting that "ringing in the ears is capable of lay observation").  In this connection, the Veteran has competently and credibly asserted that he has a longstanding history of experiencing ringing in his ears, and his VA treatment records confirm a tinnitus diagnosis.  

The Veteran asserts that he his bilateral hearing loss disability and his tinnitus were caused by in-service exposure to hazardous noise.  Specifically, he maintains that he sustained acoustic trauma carrying out his duties working as a vehicle recovery mechanic, as well as in performing training exercises with firearms during his period of service.  The Veteran's DD-214 confirms that the Veteran served in the Marine Corps as a vehicle recovery mechanic for over 6 years of his period of service, and that he is the recipient of the rifle sharpshooter's badge.  The Board finds no reason to call into question the Veteran's competent assertion that his in-service job duties required working in and around loud engines and other mechanical noise.

Thus, the key question at issue in this case is whether the Veteran's hearing loss disability and/or his tinnitus are at least as likely as not related to his in-service noise exposure.  There is only one medical opinion of record addressing the etiology of the Veteran's disabilities.  In a September 15, 2014 report, Dr. C.R.R. identified the Veteran's chief complaints, reviewed and discussed his medical history as well as his history of acoustic trauma, and ultimately determined that the Veteran's hearing loss and tinnitus were "at least as likely as not partially secondary to acoustic exposure while in military service."  Crucially, there is no medical opinion evidence of record contrary to that of Dr. C.R.R.

As the evidence of record establishes that (1) the Veteran has both tinnitus and a bilateral hearing loss disability for VA purposes; (2) the Veteran had in-service exposure to hazardous noise; and (3) a favorable link exists between his disabilities and this hazardous noise exposure, the Board finds that all three elements of service connection are met, and the benefits sought on appeal are granted.


ORDER

The claim of entitlement to service connection for a bilateral hearing loss disability is reopened.

The claim of entitlement to service connection for tinnitus is reopened.

Service connection for a bilateral hearing loss disability is granted.

Service connection for tinnitus is granted.


REMAND

In its December 2011 remand, the Board instructed the AOJ to schedule the Veteran for a hearing before the Board to discuss his service-connection claim for an acquired psychiatric disability, to include PTSD.  The AOJ never scheduled this hearing.  

As noted in the Introduction, the Veteran recently confirmed that he would like to be scheduled for a video teleconference hearing.  Given the expressed intent of the Veteran, as well as the Board's obligation to ensure compliance with its prior remand instructions, the Board concludes that this case must be returned to the AOJ to arrange for a videoconference hearing.  38 U.S.C.A. § 7107 (West 2014); 38 C.F.R. §§ 19.75, 19.76, 20.703, 20.704 (2015); Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance).

Accordingly, the case is REMANDED for the following action:

A videoconference hearing should be scheduled for the Veteran in connection with his appeal.  After the hearing is conducted, the case should be returned to the Board, in accordance with appellate procedures.

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).



______________________________________________
T. MAINELLI
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs