Citation Nr: 1751242	
Decision Date: 11/08/17    Archive Date: 11/17/17

DOCKET NO.  13-12 340	)	DATE
	)
	)

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


THE ISSUES

1. Entitlement to service connection for bilateral hearing loss.

2. Entitlement to service connection for tinnitus.

3. Entitlement to a rating in excess of 20 percent for residuals of a right knee injury with traumatic arthritis.

4. Entitlement to a total disability rating due to individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	South Carolina Office of Veterans Affairs


WITNESSES AT HEARING ON APPEAL

Veteran and Spouse
ATTORNEY FOR THE BOARD

M. Alhinnawi, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1964 to May 1966.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.  The Board remanded this appeal for additional development in February 2014.

A personal hearing was conducted between the Veteran and undersigned in June 2014.  A transcript is associated with the record.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issues of entitlement to a rating in excess of 20 percent for residuals of a right knee injury with traumatic arthritis and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. It is as likely as not that the Veteran's diagnosed bilateral sensorineural hearing loss had its onset in service.

2. Tinnitus is as likely as not related to the Veteran's active service or 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, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016).

2. The criteria for service connection for tinnitus have been met.  38 U.S.C.A. §§ 1110, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease initially diagnosed after service 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 for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

The threshold for normal hearing is from 0 to 20 decibels.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  For the purposes of applying the laws 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, 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.

A May 2012 VA examination diagnosed bilateral sensorineural hearing loss meeting the threshold requirements for hearing loss under 38 C.F.R. § 3.385.  The Veteran's complaints of tinnitus are also noted.  Element (1) of Shedden has been met.

The Veteran attributes his current hearing loss and tinnitus to in-service exposure to noise from artillery fire.  See June 2014 Hearing Testimony.  His service treatment records show that he served in an artillery unit.  The Veteran's reports of in-service noise exposure are credible and sufficient to satisfy element (2) of Shedden.

Turning to Shedden element (3), while the record does not reflect treatment or diagnosis of hearing loss for VA purposes in service, the lay evidence supports the Veteran's claim of experiencing hearing loss since service.  The Veteran states that he noticed a shift in hearing acuity while in service that has progressively worsened over time.  His spouse reports that the Veteran has had hearing problems for more than 30 years.  She describes having to constantly raise her voice to speak with the Veteran, even at close distances.  She also indicates that his hearing has progressively worsened.

Taken together with the circumstances of the Veteran's service and the aforementioned lay statements, the totality of the evidence supports the finding that the onset of the Veteran's current hearing loss disability occurred during service, and that the symptoms of his hearing loss have progressed to this time.  The Veteran is entitled to service connection for his bilateral hearing loss.  

The Board has considered the May 2012 VA examiner's opinion that the Veteran's hearing loss is less likely as not caused by or a result of an event during service.  However, there is no indication that consideration was given to the lay history presented by the Veteran and his wife.  The opinion is therefore inadequate and outweighed by the evidence of record.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008).

With respect to tinnitus, the evidence is at least in equipoise on the question of a nexus, or Shedden element (3).  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The May 2012 examiner opined that the Veteran's tinnitus is less likely than not caused by or a result of military noise exposure based on the absence of notation of tinnitus in the service treatment records.  At his June 2014 hearing, the Veteran clarified that he experienced ringing in the ears continuously since service, but did not immediately file a claim for tinnitus, because he believed there was insufficient evidence that the condition was service connected.  Additionally, the Board notes that tinnitus may occur as a symptom of nearly all ear disorders including sensorineural hearing loss.  See The MERCK Manual, Sec. 7, Ch. 82, Approach to the Patient with Ear Problems; The MERCK Manual, Section 7, Ch. 85, Inner Ear.  

The Board finds the Veteran's competent and credible reports of tinnitus to be of equal weight to the medical opinion.  In view of the totality of the evidence, including the recognition of in-service noise exposure, current finding of tinnitus, the provision from the MERCK manual, and credible lay testimony, the Board finds the evidence is at least in relative equipoise regarding tinnitus.  When the evidence is in relative equipoise, the benefit of the doubt doctrine provides that such reasonable doubt will be resolved in favor of the Veteran.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  Service connection for tinnitus is warranted.


ORDER

Entitlement to service connection for bilateral hearing loss is granted.

Entitlement to service connection for tinnitus is granted.


REMAND

In the June 2014 hearing, the Veteran stated that his service-connected right knee disability had worsened.  He reported increasing incapacitation, immobility, pain, and worsening ranges of motion.  As the Veteran has testified that his symptoms have worsened since his last examination in May 2012, he should be afforded a new VA examination to evaluate the current severity of his right knee disability.  See Olson v. Principi, 3 Vet. App. 480, 482 (1992).

The Board also notes the Veteran's reports of being unemployable and unable to work due to his right knee disability.  See June 2014 Hearing Testimony.  His statements raise an inferred claim for TDIU.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  The TDIU claim is intertwined with the Veteran's increased rating claim, and therefore cannot be adjudicated at this time.  See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered).  On remand, the Veteran should be provided a VA 21-8940 form.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. Identify and obtain any outstanding VA treatment records.  Any additional treatment records identified by the Veteran should be obtained and associated with his claims file.  If such efforts yield negative results, a notation to that effect should be inserted in the file.

2. Schedule the Veteran for a VA examination to address the current severity of his right knee.  All indicated studies should be completed, including range of motion testing.  All findings must be fully reported.

a) The report should discuss the examiner's objective evaluation for any weakened movement, excess fatigability with use, incoordination, and painful motion.

b) The clinician must address range of motion loss specifically due to pain and any functional loss during flare-ups.  The clinician is to express an opinion on whether pain could significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time.  These determinations should, if feasible, be portrayed in terms of degrees of additional range of motion loss due to pain on use or during flare-ups. 

c) Testing of the range of motion must include testing in active motion and passive motion.  The examiner should also discuss weight-bearing and nonweight-bearing ranges.  If such are not applicable, the examiner should state such along with an explanation. 

d) If it is not feasible to provide the degrees in which there is an additional loss in range of motion during flare-ups or repeated use over time or any range of motion testing, then the clinician must provide an adequate explanation as to why. 

e) Findings of the opposite (left) knee must also be included, unless the examiner states that the left knee is damaged (abnormal).

3. Send the Veteran a VA 21-8940 form and conduct any additional development necessary for the TDIU claim.

4. Then, readjudicate the issues on appeal.  If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response.  Then return the claim to the Board.

The Veteran 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.




______________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs