Citation Nr: 1802274	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO. 16-22 177	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Entitlement to service connection for bilateral hearing loss.

2. Entitlement to service connection for tinnitus.

2. Entitlement to service connection for bilateral bone spurs.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. Neal, Associate Counsel



INTRODUCTION

The Veteran served on active duty from June 1959 to June 1961, including service as a combat medic. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA).

Regarding the issue of entitlement to service connection for tinnitus, this was included in the April 2016 statement of the case (SOC). In May 2016, the Veteran submitted a VA Form 9, substantive appeal, to perfect his appeal. He indicated he was limiting his appeal to the issues of entitlement to service connection for bilateral hearing loss and bilateral bone spurs. However, two weeks later, also in May 2016, the Veteran submitted another VA Form 9, in which he indicated that he wanted to appeal "all of the issues on the [SOC]." As the second VA Form 9 was also timely filed, the Board finds that the issue of entitlement to service connection for tinnitus is also on appeal before the Board, and will be addressed herein.

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 issue of entitlement to service connection for bilateral bone spurs is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. The competent and credible evidence of record establishes that the Veteran's bilateral hearing loss is caused by or related to his active service.

2. The competent and credible evidence of record establishes that the Veteran's tinnitus is caused by or related to his active service.


CONCLUSIONS OF LAW

1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2017).

2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify & Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012) defined VA's duty to assist a veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). However, in view of the Board's favorable decision herein, further assistance is unnecessary to aid the Veteran in substantiating his claims of entitlement to service connection for bilateral hearing loss and tinnitus.

Legal Criteria & Analysis

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 military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2006); 38 C.F.R. § 3.303. 

If an organic disease of the nervous system, such as sensorineural hearing loss and tinnitus, becomes manifest to a degree of 10 percent or more during the one-year period following a Veteran's separation from qualifying service, the condition may be presumed to have been incurred in service, notwithstanding that there is no in-service record of the disorder. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017); see also Fountain v. McDonald, 27 Vet. App. 258 (2015) (where there is evidence of acoustic trauma, the presumptive provisions of 38 C.F.R. § 3.309(a) include tinnitus as an organic disease of the nervous system). In cases of chronic diseases, such as hearing loss and tinnitus, it is not enough that an injury or disease occurred in service; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b).

For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies 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 (2017). It has been established that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a medical relationship between the Veteran's in-service exposure to loud noise and current disability. Hensley v. Brown, 5 Vet. App. 155 (1993). The Board notes that the directives in Hensley are consistent with 38 C.F.R. § 3.303(d).

Based on knowledge of service audiometric practice, it is assumed that service department audiometric tests prior to October 31, 1967, were in ASA (American Standard Association) units, and require conversion to ISO units. The ASA units generally assigned lower numeric scores to hearing loss than did the ISO (International Organization for Standardization) units. Conversion to ISO units is accomplished by adding 15 decibels to the ASA units at 500 Hertz, 10 decibels to the ASA units at 1000 Hertz, 2000 Hertz, and 3000 Hertz, and 5 decibels to the ASA units at 4000 Hertz. See VA Interim Issues 21-66-16, 21-66-17 (June 6, 1966); 10-66-20 (June 8, 1966); DM&S Manual M-2, Part XVIII, Chapter 4, paragraph 4.02, Use of International Standards Organization (ISO) for Audiological Examinations.

In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (lay testimony is competent to establish the presence of observable symptomatology). Once evidence is determined to be competent, the Board must then determine whether such evidence is also credible. Id. at 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). 

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.

The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to the appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.

According to service treatment records (STRs), the Veteran underwent an enlistment examination in June 1959. See June 1959 Report of Medical Examination. The examiner did not conduct a hearing test; however, the Veteran denied experiencing ear trouble.

In May 1961, a hearing test was conducted in connection with the Veteran's separation examination. See May 1961 Report of Medical Examination. Audiogram results reflect pure tone thresholds, in decibels, as:


Hertz

500
1,000
2,000
3,000
4,000
Right Ear
35
20
20
Not tested
30
Left Ear
30
25
15
Not tested
25

The Veteran filed a service connection claim for bilateral hearing loss and tinnitus in February 2013. See February 2013 VA Form 21-526, Veteran's Application for Compensation and/or Pension. In his application, the Veteran stated that he was subjected to small arms and mortar fire during field exercises while in service. Id.

A VA hearing examination took place in November 2013. See November 2013 Compensation and Pension Audiology Examination Note (Legacy Content Manager Documents). During the examination, the Veteran indicated that he was not provided ear protection during his active service. An audiogram revealed the following results:

Hertz

500
1,000
2,000
3,000
4,000
Right Ear
35
45
45
50
55
Left Ear
35
40
40
65
60
The examiner diagnosed bilateral sensorineural hearing loss. However, the examiner concluded that the Veteran's bilateral hearing loss was not at least likely as not caused by or a result of an event in service. The examiner based her conclusion solely on the May 1961 separation examination, which did not find hearing loss for VA purposes at the time.

In a May 2016 statement, the Veteran, though his representative, indicated that he continued to suffer from residual hearing loss acquired during active duty. See May 2016 Statement of Accredited Representatives in Appealed Case.

Upon review of the record, the Board finds that the competent and credible evidence of record establishes that the Veteran's diagnosed bilateral hearing loss is related to his active service. First, the Board notes the November 2013 VA examination is inadequate. The examiner's negative etiological opinion relied solely on the May 1961 separation examination. In Hensley v. Brown, 5 Vet. App. 155 (1993), the United States Court for Veterans Claims held that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability merely because hearing was within normal limits on audiometric testing at separation from service. 

Moreover, the Board notes that the Veteran's statements of record reflect competent and credible evidence of a continuity of symptomatology of hearing loss. The Veteran indicated that he was exposed to substantial small arms and mortar fire and experienced hearing loss in service. See February 2013 VA Form 21-526, Veteran's Application for Compensation and/or Pension. Further, the Veteran indicated that he continues to suffer from residual hearing loss acquired during active duty. The Veteran, as a layperson, is competent to testify to having experienced hearing loss and service as well as residual hearing loss after his separation. See Layno, 6 Vet. App. at 470. In addition, the Board finds no evidence to doubt the Veteran's credibility. The Board also finds that the Veteran's military occupational specialty (MOS) as a combat medic is consistent with his military noise exposure and subsequent hearing loss. Finally, while the May 1961 separation examination does not reflect hearing loss for VA purposes at the time, it does reflect elevated auditory thresholds.

Similarly, the Board finds that the competent and credible evidence of record establishes that the Veteran's recurrent tinnitus is related to his active service. As discussed above, the Veteran's MOS is consistent with exposure to noise while in service. The November 2013 VA examination offered no evidence to refute the Veteran's competent and credible contention that his tinnitus is related to military noise exposure while in service.

With no other competent and credible evidence of record, the Board determines that the Veteran's testimony is sufficient to establish a nexus between his diagnosed bilateral hearing loss and tinnitus and his active service. See 38 C.F.R. § 3.303(b). Accordingly, the criteria for service connection for bilateral hearing loss and tinnitus have been met. 38 C.F.R. § 3.303.


ORDER

Service connection for bilateral hearing loss is granted. 

Service connection for tinnitus is granted. 


REMAND

The Veteran contends he suffered from bilateral bone spurs during service and continues to suffer from the condition up to the present. See December 2017 Appellate Brief. The record does not reflect that any VA or other post-service treatment records have been associated with the claims file. The record also does not reflect that VA sent the Veteran an authorization request form for the release of treatment records. Therefore, the Board finds that VA has failed to meet its duty to assist the Veteran in developing his claim, and a remand is necessary to obtain outstanding treatment records and to conduct further development of the evidence in accordance with the VCAA. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).

Accordingly, the case is REMANDED for the following actions:

(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. With any required assistance of the Veteran, obtain any outstanding VA and pertinent private medical records, and associate them with the claims file. 

2. Then, ensure that all further development of the evidence required under the VCAA is accomplished (to include the scheduling of a VA examination, if warranted).
 
3. Thereafter, readjudicate the issue remaining on appeal-entitlement to service connection for bilateral bone spurs. If this benefit sought on appeal is not granted in full, the Veteran and his representative should be issued a supplemental statement of the case and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if otherwise in order.

No action is required of the Veteran until he is notified by VA. However, he is again advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood, 1 Vet. App. at 190. His failure to help procure treatment records, for example, may impact the determination made. His failure to report for a VA medical examination may have the same impact. 38 C.F.R. § 3.655 (2017). The Veteran also is advised that he has the right to submit additional evidence and argument, whether himself or through his attorney, with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. The law indeed requires that all remands by the Board or the United States Court of Appeals for Veterans Claims (Court) are to be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). 




______________________________________________
A. ISHIZAWAR
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs