Citation Nr: 18151160 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 16-27 289 DATE: November 16, 2018 ORDER Service connection for right ear hearing loss is granted. REMANDED Entitlement to a compensable rating for service connected left ear hearing loss is remanded. Entitlement to a rating in excess of 30 percent for chronic obstructive pulmonary disease (COPD) is remanded. Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT The Veteran’s right ear hearing loss had its onset during the Veteran’s combat service. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1110, 1154(a-b), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1970 to March 1972, including combat service in the Republic of Vietnam and his decorations include the Combat Infantryman Badge and the Silver Star. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned in November 2016. In November 2016, the Veteran raised the issue of whether he was unemployable due to his service-connected disabilities. The Board takes jurisdiction of the issue of entitlement to a TDIU because it is part and parcel to the increased rating claim on appeal. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Entitlement to service connection for right ear hearing loss The Veteran is seeking service connection for right ear hearing loss that he attributes to acoustic trauma during active duty service. The Board notes, the Veteran is already service-connected for hearing loss in his left ear. All three elements of service connection are established by the competent and credible lay and medical evidence of record. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran has a diagnosis of right ear hearing loss, and suffered acoustic trauma when exposed to extreme loud noise in service due to military noise exposure. See September 2015 VA examination; and March 1972 Certification of Release or Discharge from Active Duty. Thus, the first two criteria have been met. Further, the competent and credible evidence of record, including the Veteran’s November 2016 sworn testimony before the Board, shows that his current right ear hearing loss began during combat service in Vietnam. The Board finds that the Veteran’s reports of noise exposure during his period of service, and right ear hearing problems since service, are credible. See also Jandreau v. Nicholson, 492 F.3d 1372 (2007). Moreover, in cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d) are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in the case of a combat Veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran served in combat and was likely exposed to acoustic trauma while serving in Vietnam given that such exposure is consistent with the circumstances, conditions and hardships of that service. 38 U.S.C. § 1154(b). As such, VA must presume the occurrence of the in-service injury. In addition, the medical evidence shows that the Veteran has been diagnosed as having right ear hearing loss and he reports the onset of the condition during combat service in Vietnam. Further, the Board finds that he is both competent to report observing the onset of this disability during and since serving in combat in Vietnam and that his account of having right ear hearing loss since that time is credible. Thus, the Board finds that the evidence is not sufficient to rebut the presumption that his right ear hearing loss became manifest during his combat service. See Reeves. In light of his in-service, combat-related acoustic trauma, the credible history of right ear hearing loss in and since service, and the diagnosis of right ear hearing loss, the Board finds that service connection is warranted because the disability had its onset in service. REASONS FOR REMAND 1. Hearing loss is remanded. In November 2016, the Veteran testified that his hearing loss in both ears had worsened since his most recent VA examination in September 2015. The Veteran explained that he can no longer hear phones conversations, and his hearing has gotten progressively worse since his last VA examination. Accordingly, a new VA examination is required to adequately evaluate the current nature and severity of his service-connected bilateral hearing loss. 2. Entitlement to a rating in excess of 30 percent for chronic obstructive pulmonary disease (COPD) is remanded. The Veteran asserts that his COPD has worsened since his last VA examination August 2015. The Board finds that a new VA Respiratory Conditions (Other than Tuberculosis and Sleep Apnea) Examination is warranted to assess the current nature and severity of the Veteran’s service-connected COPD. See 38 C.F.R. § 3.327(a) (providing that reexaminations will be requested whenever VA needs to determine the current severity of a disability). The Veteran was last afforded a VA Respiratory Conditions Examination in August 2015. During the November 2016 Board hearing, the Veteran advised of his current symptoms and that his current symptoms and that his COPD has worsened since his previous examination. The Board finds that the current evidence of record does not adequately reveal the present state of the Veteran’s service-connected COPD. Because the level of severity of the Veteran’s CAD is not entirely clear given the presence of the Veteran’s COPD; and, because the Veteran asserts that his condition has worsened since the last examination, a new examination is necessary to decide the claim. 3. Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. The Board finds the claim of entitlement to a TDIU is inextricably intertwined with the increased rating claims being remanded herein. Specifically, the Board notes that a grant of any of the other claims being remanded could impact whether the Veteran is entitled to a TDIU. Therefore, the issue of entitlement to a TDIU is also remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1993) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). The matters are REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and any individual who has first-hand knowledge of the nature, extent, and severity of his service-connected bilateral hearing loss and COPD and their impact on his ability to work. An appropriate amount of time should be allowed for the Veteran to respond. 2. Schedule the Veteran for a VA examinations to determine the current severity of his bilateral hearing loss. All findings should be reported in detail. 3. Schedule the Veteran for a VA examination to determine the current nature and severity of his COPD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 4. Contact the Veteran and request that he identify any outstanding VA and private treatment records related to his TDIU claim. After obtaining the necessary authorization forms from the Veteran, obtain any pertinent records and associate them with claims file. 5. Request that the Veteran complete VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jacquelynn M. Jordan, Associate Counsel