Citation Nr: 1803321 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-20 888 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and Spouse ATTORNEY FOR THE BOARD Leanne M. Innet, Associate Attorney INTRODUCTION The Veteran served on active duty from August 1969 to September 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office in Columbia, South Carolina (RO). In February 2016, the Veteran testified before a decision review officer, and in September 2017, the Veteran and his wife testified at a travel board hearing before the undersigned. Transcripts are of record. This appeal was processed using the Virtual VA (VVA) and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future review of this Veteran's case should take into consideration the existence of these electronic records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran essentially contends that his hearing loss and tinnitus are related to his period of active service, to include exposure to hazardous noise. The Veteran's military personnel record shows that his military occupational specialty (MOS) was combat engineer, and his in-service hazardous noise exposure is consistent with this MOS. The Veteran's service treatment records show that he complained of and was treated for ear/nose/throat conditions, generally sore throats, in October 1968, March 1970, February 1971, January 1972, February 1972, and June 1972. In the Veteran's August 2013 notice of disagreement, he stated that he did not have hearing loss while in service but that the ringing in his ears began while he was driving heavy equipment while in service, and it has continued throughout his life. He stated that the truck muffler was by his left ear six days a week. The Veteran stated that he also has a problem in his left ear that often has infections that are quite painful. He stated that at separation, like all twenty-year-olds, he was more interested in getting home than listing his problems. On the Veteran's June 2014 VA Form 9, the Veteran stated that he has had problems with hearing for over thirty years and that he has pain that moves down his neck; his ear throbs. On his August 2016 VA Form 9, the Veteran stated he was a combat engineer, driving dump truck, and that the exhaust pipes came up the left side of the truck causing him earaches in the left ear. He stated that he started using sweet oil in his left ear to treat the earaches. The Veteran stated that he constantly has earaches in his left ear but he does not always seek treatment, rather, he just uses sweet oil on a cotton ball and puts it in his ear. He stated that it helps a little with the pain; the pain goes all the way down his neck. In February 2016, the Veteran testified before a decision review officer. He testified that he was a combat engineer, building bridges, and that he drove a dump truck. He stated that the pipes on the truck were on the left side such that he had little ringing in his ear. He stated that there was not hearing protection. He stated that after service he was a forklift operator and that hearing protection was required for the jobs. The Veteran testified that when there was ringing in his ear there was also pain in his left ear that he treated with sweet oil on a cotton ball. He stated that the pain medication he took for his arthritis also helped with the pain. The Veteran stated that he had started to have pains in his right ear and to have dizzy spells. The dizzy spells had occurred when he was driving and he had had to pull over to the side of the road. He stated that when he was in service he had not been treated for hearing loss or tinnitus. In September 2017, the Veteran and his wife testified at a travel board hearing. The Veteran stated that before service he had no problems with his hearing. He stated that while in service he was a combat engineer, building bridges and bunkers. He stated that he operated a ten-ton dump truck, a bulldozer, front loader, all heavy equipment. He also stated that he operated a jack hammer. He stated that the pipe on the dump truck, which was diesel, came up the left side of the truck so it was right next to his left ear. The Veteran also testified that he was arms qualified and that they used practice grenades during training. He stated that there was no hearing protection. The Veteran testified that he experienced ringing in his ears in service, which he attributed to the altitude in the Demilitarized Zone. He stated that it never lasted more than a day or so but it has continued intermittently through the years since then. The Veteran stated that he noticed having hearing loss while in service and that he started having earaches; he started using sweet oil to ease the pain. In response to the question of whether he went to sick call, the Veteran stated that he might have gone once or twice but the only thing he was given was ear drops that did not really help. The Veteran stated that he self-medicated as much as possible. The Veteran stated that he had pain in his left ear and down the left side of his neck and that he cannot lay on his left side. The Veteran's VA medical records show that in April 2016 it was noted that the Veteran was still having some issue with hearing and that there was a complaint of increased drainage about once a month with earache. It was noted that the Veteran was using sweet oil for the canal. In his medical records for 2017, there was a recurrent entry that the Veteran was positive for earaches, mostly right ear. In February 2013, the Veteran was afforded a VA examination for hearing loss and tinnitus. The Veteran was diagnosed as having bilateral sensorineural hearing loss in the frequency range of 500 to 4000 Hz. The audiogram showed that the puretone thresholds were higher in the left ear than in the right. It was noted that the Veteran reported hearing problems in the left ear only when he was having an earache. The examiner opined that it was not at least as likely that the Veteran's hearing loss was caused by or a result of an event in military service. In the rationale, the examiner stated that the Veteran reported no problems with his hearing other than when he was having a recurring left ear infection. The examiner noted that the Veteran's in-service hearing examination was within normal limits bilaterally. The examiner opined: "It is less likely than not that hearing loss and tinnitus are due to military noise exposure and more likely due to another cause." It was noted that the Veteran "reported ear pain associated with his hearing decreases and tinnitus," and the Veteran was advised to be medically evaluated by an ENT to address the ear symptoms. As to tinnitus, the examiner recorded that tinnitus occurred in the left ear only and only when the Veteran was having earaches on that side. The examiner opined that it was less likely than not that the Veteran's tinnitus was a symptom associated with the Veteran's hearing loss. It was explained that the tinnitus was in one ear only when the hearing loss was in both ears, and the Veteran stated that it only occurs with earaches in the left ear. The examiner also opined that it was less likely than not that the Veteran's tinnitus was caused by or a result of military noise exposure. It was explained that the Veteran reported tinnitus only with earaches on the left side and, therefore, it is likely a medical problem and not associated with military noise exposure. Because these opinions do not address relevant medical evidence in the Veteran's service treatment records or the correlation, if any, between the Veteran's in-service hazardous noise exposure predominately on the left side and the higher thresholds in the left ear, the Board finds these opinions inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). Therefore, the Veteran must be afforded another VA examination to determine the etiology of the Veteran's present bilateral hearing loss and tinnitus, taking into account the Veteran's statements about noise exposure and onset of symptoms, including earaches and sore throats, the record evidence, and accepted medical principles. On remand, any outstanding records should be obtained. Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran and afford him the opportunity to identify by name, address, and dates of treatment or examination of any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all records of treatment or examination from all the sources listed by the Veteran (VA and private facilities) which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file. If any records cannot be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. After all additional records are associated with the claims file, schedule the Veteran for a VA examination to determine the etiology of his present ear disability, whether it is related to his bilateral hearing loss and tinnitus, and whether they are related to the Veteran's active service. If possible, schedule the examination during a flare-up of the Veteran's earaches. The claims file (including Virtual VA and VBMS documents) and a copy of this Remand in its entirety must be made available to and be reviewed by the examiner in conjunction with the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should also be performed. If the examiner finds that another audiometry examination is warranted, then it must include a speech recognition test using the Maryland CNC wordlist and a puretone audiometry test. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements as contained in hearing testimony transcripts and written statements. The Board would like the examiner to specifically consider the Veteran's in-service history of recurrent sore throats, exposure to hazardous noise predominately on the left side, and the Veteran's chronic history of earaches in the left ear, which had their onset in service along with the onset of ringing in the ears and hearing loss. Before rendering an opinion, the examiner is asked to determine if the audiological results in service represent ASA or ISO units. If this cannot be determined, the examiner should presume the reports are in ASA units. If ASA units were reported (or presumed reported) during service, the examiner should convert those findings into ISO units. A thorough explanation for any opinion must be provided. The examiner must obtain a full history from the Veteran, including the details of his use of sweet oil on cotton to treat recurrent earaches. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner must provide a fully reasoned explanation. a. The examiner must identify any current ENT disabilities other than hearing loss and tinnitus. b. The examiner must provide an opinion whether it is at least as likely as not (50 percent or greater probability) that any diagnosed ENT disability other than hearing loss and tinnitus was caused by or aggravated by active service. c. The examiner must provide an opinion whether it is at least as likely as not (50 percent or greater probability) that any diagnosed ENT disability caused or aggravated the Veteran's hearing loss. d. The examiner must provide an opinion whether it is at least as likely as not (50 percent or greater probability) that any diagnosed ENT disability caused or aggravated the Veteran's tinnitus. e. The examiner must provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hearing loss disability was caused by or aggravated by noise exposure during active service. f. The examiner must provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the Veteran's tinnitus was caused by or aggravated by noise exposure during active service. In rendering these opinions, the examiner should discuss medically known or theoretical causes of hearing loss and describe how hearing loss that results from noise exposure generally presents or develops in most cases, in determining the likelihood that current hearing loss was caused by noise exposure in service as opposed to some other cause. The examiner should note that the absence of evidence of a hearing loss disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. In rendering the opinion, the examiner should not resort to mere speculation, but rather should consider that the phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If any of the claims remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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 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. §§ 5109B, 7112 (2012). _________________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).