Citation Nr: 1620004 Decision Date: 05/17/16 Archive Date: 05/27/16 DOCKET NO. 14-30 972 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to an initial compensable disability evaluation for the Veteran's left ear hearing loss. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and the Veteran's spouse ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran is the appellant in the instant appeal. He had active service from October 1960 to October 1962. This matter came before the Board of Veterans' Appeals (Board) on appeal from a April 2013 rating decision of the Houston, Texas, Regional Office (RO) which established service connection for left ear hearing loss; assigned a noncompensable evaluation for that disability; effectuated the award as of April 27, 2012; and deny service connection for both right ear hearing loss and tinnitus. In April 2016, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript was prepared and incorporated into the record. At the hearing, the Veteran submitted a Motion to Advance on the Docket. The Board granted the Veteran's motion. The Board has reviewed both the Veterans Benefit Management System (VBMS) and the "Virtual VA" files. This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of the Veteran's appeal should take into consideration the existence of this electronic record. The issue of the evaluation of the Veteran's bilateral hearing loss is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. Right ear sensorineural hearing loss originated during active service. 2. Tinnitus originated during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for right hearing sensorineural hearing loss have been met. 38 U.S.C.A. §§ 1131, 1154, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a), 3.385 (2015). 2. The criteria for service connection for tinnitus are met. 38 U.S.C.A. §§ 1131, 1154, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this decision, the Board grants service connection for both right ear sensorineural hearing loss and tinnitus. Therefore, no further discussion of VA's duties to notify and to assist is necessary as to those issues. II. Service Connection for Right Ear Hearing Loss The Veteran asserts that service connection for right ear hearing loss is warranted as his service treatment records reflect that he sustained in-service acoustical trauma and associated hearing loss disability. Service connection may be granted for recurrent disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for impaired hearing shall be established when the thresholds for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz are 40 decibels or more; or the thresholds for at least three of these frequencies are 26 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The provisions of 38 C.F.R. § 3.385 prohibit the award of service connection for hearing loss where audiometric test scores are within the established limits. The threshold for normal hearing is from 0 to 20 dB and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 158 (1993) citing Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). An organic disease of the nervous system including sensorineural hearing loss is a "chronic disease" listed under 38 C.F.R. § 3.309(a). Therefore, the provisions of 38 C.F.R. § 3.303(b) are for application. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such during active service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless they are clearly attributable to intercurrent causes. Generally, if a condition noted during active service is not shown to be chronic, then, a "continuity of symptoms" after service is required to establish service connection. 38 C.F.R. § 3.303(b). The Veteran's service treatment records reflect that he exhibited hearing loss disability. The report of the Veteran's August 1960 physical examination for service entrance states that the Veteran exhibited bilateral auditory acuity of 15/15. Auditory acuity of 15/15 is normal. Smith v. Derwinski, 2 Vet. App. 137, 140 (1992). The report of a December 1960 physical evaluation conducted for Officer Candidate School (OCS) states that the Veteran exhibited pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 0 (10) - 10 (15) LEFT 0 (15) -5 (5) -5 (5) - 15 (20) The numbers in the brackets reflect a converted score based upon the change in testing methods that occurred in 1966 and 1967. The report of the Veteran's July 1962 physical examination for service separation states that he exhibited pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 (30) 5 (15) 10 (20) - 0 (5) LEFT 25 (40) 25 (35) 15 (25) - 25 (30) The numbers in the brackets reflect a converted score based upon the change in testing methods that occurred in 1966 and 1967. The Veteran was diagnosed with "71 (8704) Deafness due to acoustic trauma, firing weapons H-2." An April 2012 audiological evaluation from L. Rolph, Au.D., CCC-A, indicates that the Veteran complained of progressive bilateral hearing loss disability. He presented a history of "deafness due to an acoustic trauma related to being in the Army in 1961-62 in Germany." The Veteran was diagnosed with bilateral sensorineural hearing loss. At an April 2013 VA audiological evaluation, the Veteran exhibited pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 40 50 50 LEFT 30 30 45 80 80 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 66 percent in the left ear. The Veteran was diagnosed with bilateral sensorineural hearing loss. The examiner commented that: the "Veteran's C-file was reviewed;" his "C-file revealed no significant shift in hearing in his right ear from enlistment to discharge;" the "left ear revealed a mild loss at 8k Hz;" "[b]ased on review of the C-file, it is my opinion that his hearing in his left ear only was more likely than not affected by his military noise exposure;" the "right ear was normal at enlistment and discharge with no significant change;" and "[a]lthough there was a mild shift in the left ear, the majority of his hearing was still within the normal range at discharge." The Board observes that, contrary to the VA audiologist's comments, the in-service audiometric findings show multiple shifts in the Veteran's right ear auditory acuity between his 1960 evaluations and his July 1962 evaluation conducted after his documented acoustic trauma, including to 20 dB and higher at both 500 and 2000 Hertz. Indeed, it appears that the examiner may not have converted the pre-1966 audiometric findings to the current standards. Given these deficiencies, the Board concludes that the April 2013 examination report is of little probative value. At the April 2016 Board hearing, the Veteran and his spouse testified that the Veteran had experienced recurrent bilateral hearing loss following his in-service acoustic trauma. The Board observes that the Veteran's service treatment records convey that he sustained in-service acoustic trauma and exhibited reduced bilateral auditory acuity at his subsequent physical examination for service separation. The Veteran has been diagnosed with bilateral sensorineural hearing loss which meets the criteria set forth in 38 C.F.R. § 3.385 by both VA and private audiologists. He and his wife have testified on appeal that he experienced significant bilateral hearing loss disability since service separation. Service connection has been previously granted for left ear hearing loss. Therefore, the Board finds the evidence is in at least equipoise as to whether the Veteran's diagnosed right ear sensorineural hearing loss originated during active service. Upon resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service connection for right ear sensorineural hearing loss is now warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. III. Service Connection for Tinnitus The Veteran asserts that service connection for tinnitus is warranted as the result of his documented in-service acoustic trauma. As discussed above in regards to his claim of entitlement to service connection for right ear hearing loss, the Veteran's service treatment records show that he sustained in-service acoustic trauma and associated bilateral hearing loss. The documentation does not refer to tinnitus or ringing of the ears. However, the Veteran is competent to report that tinnitus was incurred in service and it has existed from service to the present. See 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Charles v. Principi, 16 Vet. App 370, 374 (2002). In his April 2012 Veteran's Application for Compensation or Pension (VA Form 21-526), the Veteran advanced that his recurrent tinnitus was initially manifested in January 1961 during active service. At the April 2013 VA audiological examination, the Veteran complained of recurrent tinnitus. He was unsure as to the date of the onset of his tinnitus. The Veteran was diagnosed with tinnitus. The examiner concluded that, "[b]ased on the fact that he is unsure of the onset time, there is no causal event, and the frequency and duration are not consistent with a noise induced tinnitus, it is my opinion that any tinnitus the vet hears is less likely than not related to his military noise exposure." The Board finds that the evidence is in at least equipoise as to whether the Veteran's tinnitus arose during active service. The Veteran had documented in-service acoustic trauma and resulting hearing loss disability. He reported the onset of tinnitus during active service which has persisted to the present day. The Veteran has been diagnosed with recurrent tinnitus on post-service examination. Upon resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service connection is now warranted for tinnitus. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for right ear sensorineural hearing loss is granted. Service connection for tinnitus is granted. REMAND VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Given the award of service connection for right ear sensorineural hearing loss above and as the Veteran was last afforded a VA audiological evaluation in April 2013, the Board finds that further VA examination is required. Clinical documentation dated after April 2013 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran's claim. See Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide information as to all treatment of his service-connected bilateral hearing loss after April 2013 including the names and addresses of all health care providers whose records have not already been provided to VA. Upon receipt of the requested information and the appropriate releases, the RO should contact all identified health care providers and request that they forward copies of all available clinical documentation pertaining to treatment of the Veteran, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e) (2015). 2. Associate with the record any VA clinical documentation not already of record pertaining to treatment of the Veteran, including that provided after April 2013. 3. Schedule the Veteran for a VA audiological examination in order to assist in determining the current nature and severity of his service-connected bilateral hearing loss and associated vocational impairment. All relevant medical records must be made available to the examiner for review of pertinent documents therein. The examination report should specifically state that such a review was conducted. A rationale for all opinions should be provided. 4. Then adjudicate the issue of the initial evaluation of the Veteran's bilateral hearing loss. If any benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC) which addresses all relevant actions taken on the Veteran's claim for benefits, to include a summary of the evidence considered, since the issuance of the statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs