Citation Nr: 1801758 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 15-27 134 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to a compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service from September 1959 to August 1962. This matter comes before the Board of Veterans' Appeals (Board) from a November 2014 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran testified at a November 2017 videoconference before the undersigned Veterans Law Judge (V|LJ) and a transcript is of record. Historically, the Veteran appealed a January 2003 rating decision which denied service connection for tinnitus and bilateral hearing loss. Following a September 2004 audiology evaluation, a November 2004 rating decision granted service connection for tinnitus and bilateral hearing loss, rated 10 percent and noncompensably disabling, respectively from December 26, 2001 (date of receipt of original claim). On July 22, 2014, the Veteran's executed VA Form 21-526b, Supplemental Claim for Compensation, was received specifically requesting a compensable rating for service-connected bilateral hearing loss (with no mention made of his service-connected tinnitus). By RO letter of July 22, 2014, the Veteran was provided notice of what was required to substantiate his increased rating claim and of the respective evidence gathering duties under the Veterans Claim Assistance Act of 2000 (VCAA). After the Veteran failed to attend a scheduled VA rating examination in October 2014, a November 2014 decision denied the claim for a compensable rating for bilateral hearing loss. The Veteran's notice of disagreement (NOD) was received on January 6, 2015, attached to which was a letter dated December 17, 2014 to his service representative stating that he had had a hearing test several months earlier, and had had an MRI which had revealed bone damage. Thereafter, a May 5, 2015 deferred rating action indicated that the Veteran had shown good cause for missing his scheduled rating evaluation and he was to be rescheduled for such an evaluation. That evaluation was conducted later in May 2015. In correspondence, and at the videoconference, the Veteran has made reference to his belief that inservice acoustic trauma caused some form of inner ear damage and his current jaw pain which, either alone or with his service-connected tinnitus (his only other service-connected disorder which is rated as 10 percent disabling) has caused sleep disturbance and caused him to be depressed. Greater details as to these matters are set forth in the Remand section herein. However, the Board notes that to the extent that inservice acoustic trauma caused inner ear damage leading to decreased hearing acuity; this is already encompassed by his service-connected bilateral hearing loss. Thus, the Veteran appears to have raised the issue of entitlement to service connection for some form of inner ear damage and his current jaw pain, and possibly service connection for a psychiatric disorder manifested by depression. The Veteran is advised that his statements do not meet the standards of an intent to file under 38 C.F.R. § 3.155(b) or those of a complete claim under 38 C.F.R. § 3.155(a). The AOJ should notify the Veteran as to the procedures required under 38 C.F.R. § 3.155 for filing a claim for VA benefits. This appeal was processed using the Veteran's Benefits Management System (VBMS) and, in addition there is a Virtual VA paperless claims electronic file (now described as Legacy Content Manager Documents). Accordingly, any future consideration of this appeal should take into consideration the existence of these electronic records. 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 appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND VA outpatient treatment (VAOPT) records show that at a May 12, 2014 audiology evaluation at the Loma Linda VA Medical Center the Veteran complained of worsening hearing and understanding of speech, bilaterally, and also reported sensitivity and intermittent otalgia in right ear only. He had been issued a hearing aid for his left ear in June 2008 and for his right ear in December 2005. On audiology evaluation his speech discrimination ability in the right ear was 56 percent at 85 decibels (dbs.) with contra masking, and in the left ear it was 96 percent at 75 dbs. with contra masking. Puretone testing revealed, in the right ear, a mild sloping to moderately-severe sensorineural hearing loss and in the left ear hearing was within normal limits to 1,500 Hz but with a steeply sloping mild to severe sensorineural hearing loss. It was specifically reported that the Veteran's left ear hearing was stable, but his hearing in the right ear worse as compared to his last audiogram. In June 2014 he was fitted with new hearing aids. VAOPT records also show that on October 1, 2014 it was reported that the Veteran claimed he had been having intermittent pain of the right temporomandibular joint (TMJ) for the past 20 years. However, the pain was worst when he wore his hearing aids. Also, it was noted that his personal medical history included prostate cancer, hypertension, and diabetes mellitus. It was reported that audiometric testing had revealed an asymmetric sensorineural hearing loss which was greater in the right ear than in the left ear. He was to have an MRI of the "IAC" (inner ear canal) to rule out a "CPA tumor" and to return in 2 weeks with the MRI, and if it was negative, consideration was to be given to a referral to dental services for TMJ dysfunction. An October 29, 2015 VAOPT record reflects that an MRI had been negative for a "CPA tumor" and consideration was to be given to referral of the Veteran to dental services for "TMJ" management. On official (QTC) audiology examination on May 24, 2015 audiometric testing revealed the following puretone thresholds, in decibels: Hertz ? Decibels ? 1,000 2,000 3,000 4,000 Discrimination Ability Right 60 70 70 75 68 % Left 25 50 75 70 84 % The audiologist reported that the Veteran's responses in the left ear during the pure tone testing were not consistent upon repeated testing. He was service-connected for bilateral hearing loss, but the current test results "can't be counted as valid response." The diagnosis was a bilateral sensorineural hearing loss. The examining audiologist noted that the Veteran reported that he was exposed to loud artillery noise during the military service as a military policeman. When the tiny hairs of the inner ear become damaged or bent from exposure to loud sounds, this may result in reduction and deterioration of audible range. The Veteran's hearing loss impact ordinary conditions of daily life, including ability to work. The Veteran reported that, as to overall functional impairment from the hearing loss, he had been told that he only heard parts of conversation or would inaccurately understand a conversation and required clarification in most instances. The examining audiologist reported that an air conduction study is better than a bone conduction study to reflect the Veteran's hearing loss. There was an asymmetrical hearing loss of 20 dbs. or greater (by air conduction). As to tinnitus, the Veteran reported having had tinnitus for 50 years, and had been exposed to acoustic trauma during service. As to overall functional impairment from the tinnitus the Veteran reported that because of the 24/7 ringing and humming in his right ear, he had trouble sleeping and he had been found to be napping at various times of the day. He had to be as careful to have someone with him when driving to help keep him awake when necessary. Because of the duration of this condition, he had found himself becoming depressed. VAOPT records also show that on June 3, 2015 the Veteran reported that he had had an increased rating examination done outside VA and he was disappointed with quality of examination. He reported having continued pain in jaw area; with the same side being monitored for worsened hearing. Attached to the Veteran's VA Form 9 was a July 21, 2015 letter by the Veteran stating: I would like the Veterans Administration to acknowledge the damage and hearing loss in my right ear and be compensated appropriately. Due to a feeling of 'fullness' in the right ear, I am unable to wear the right hearing aid for any time period without pain. Because of this pain, it exacerbates my ability to converse in discussion and conversations on a regular basis. I am told that I frequently do not hear parts of the conversation or 'mishear' parts of conversation. This is interfering with quality of life in my daily activities. My wife frequently needs to intervene and repeat or interpret what I have heard or not heard in conversations she is privy to. He also stated that: Additionally, because of the 24/7 ringing/humming in my right ear I have trouble sleeping and I am found cat napping at various times of the day. I have to be careful as often as possible to have someone with me when driving. (Usually this is my son with autism who doesn't drive but keeps me awake, when necessary.) Because of the duration of this condition I find myself depressed. Dr. Chonkich from the ENT Clinic in Loma Linda, left me the following message on my home phone answering machine "This is Dr. Chonkich from the ENT clinic in Loma Linda. I got a message from Dr. Maudy, audiologist, with your problem with jaw discomfort and what we need to do is to get an MRS specifically of the jaw bone joints. When you had that MRI of the inner ear, the radiologist said they could not visualize the jaw bone joints properly with that particular MRI, so I'm going to order that for you and when it's done I will give you a call." Subsequently, the MRI was scheduled for 7-20-2015 at 3:30 PM. MRI was performed and we are awaiting results. I believe the VA has decided my case incorrectly because it is my understanding that the 10% compensation I receive is for tinnitus. I believe due to the conditions of my job duties and lack of protective gear to prevent injuries to personnel, I was subject to harsh/severe conditions in which to accomplish by job. As a result, the tinnitus is more than ringing. In reality, it is ringing and humming and is with me for 24/7 ongoing. The other issue is the jaw bone pain and inner ear 'fullness' I suffer on a regular basis. The aforementioned has contributed to non-sleep and depression. Not being able to wear the hearing aid fitted to me by the VA is heartbreaking. I thought-the [sic] proper hearing aid might at least solve the issue so I could still carry on a conversation and positively impact my quality of life. That has not been the case. At the November 2017 videoconference the Veteran attested to his inservice exposure to acoustic trauma. He also testified that he had pain. He had had difficulty understanding a foreign VA physician and had been told that there was nothing that could be done for him. The Veteran's service representative noted that the report of the most recent official rating examination indicated that it was inadequate for rating purposes and, so, another rating examination was requested. The service representative also made reference to a "structural issue with his ear and his jaw connection." Page 5 of the transcript. The presiding VLJ indicated that this would be considered a claim, or claims, for service connection but such had to be referred to the RO for initial consideration. In this regard the Veteran testified that an MRI had not revealed any abnormality and that as to jaw pain he had to move his jaw "to make it pop like." Page 6. Thus, inasmuch as the Veteran has challenged the adequacy of the May 2015 audiology evaluation and the report of that evaluation reflects on its face that it is inadequate for rating purposes, the Veteran should be scheduled for another audiology rating examination. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Schedule the Veteran for a VA audiological examination to determine the current level of severity of his service-connected bilateral hearing loss. If possible and if necessary, the Veteran's electronic medical records should be made available to and be reviewed by the examiner, if needed. Any tests or studies deemed necessary should be conducted, to specifically include audiometric testing, and the results should be reported in detail. The examiner must also fully describe the functional effects caused by the Veteran's hearing disability. If the auditory thresholds from the current examination differ significantly from the results of other tests, the VA examiner should explain the reason why there is a difference, if possible. 2. After the development requested above has been completed, the record should again be reviewed. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The appellant 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 (West 2014). _________________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).