Citation Nr: 1806925 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-12 186 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. Kipper, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1968 to February 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In October 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been prepared and associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the issues on appeal. The Veteran contends that his bilateral hearing loss and tinnitus were incurred as a result of his exposure to loud noise from gunfire and mortars while serving in an artillery unit. The Veteran has been diagnosed with bilateral hearing loss and tinnitus and the severity of his hearing loss in each ear meets the criteria for a disability as defined by 38 C.F.R. § 3.385. See December 2012 VA Examination Report. Also, the Veteran's service records indicate that he served as an artillery crewman. As this military occupational specialty (MOS) has been determined by the Department of Defense to involve a "highly probable" likelihood of hazardous noise exposure, in-service noise exposure is conceded. See VA Fast Letter 10-35 (Sept. 2, 2010) (providing Duty MOS Noise Exposure Listing and stating that if the duty position is shown to have a "Highly Probable" likelihood of exposure to hazardous noise, exposure to such noise will be conceded for purposes of establishing the in-service event). Since the Veteran was afforded a VA examination in December 2012, there has been an update on VA's policy for interpreting audiometric data. The Veteran had in-service audiological evaluations in February 1968, September 1969, and October 1969, at which time auditory thresholds were recorded. It is unclear whether such thresholds were recorded using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units. For service audiological evaluations conducted prior to January 1, 1967, VA protocol is to presume the ASA standard was used. For service audiological evaluations conducted between January 1, 1967 and December 31, 1970, VA protocol is to consider the data under both ASA and ISO-ANSI standards, relying on the unit measurements most favorable to the Veteran's appeal. For service audiological evaluations conducted after December 31, 1970, VA protocol is to assume the ISO-ANSI standard was used. In light of the above, and where necessary to facilitate data comparison for VA purposes, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data as follows: Hertz 250 500 1000 2000 3000 4000 6000 8000 Add 15 15 10 10 10 5 10 10 The Veteran's February 1968 induction report of medical examination shows that the Veteran's pure tone thresholds (ISO or ANSI units after conversion are in parentheses), in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) 0 (10) 10 (20) 10 (20) 10 (15) LEFT 10 (25) 10 (20) 15 (25) 5 (15) 0 (5) The Veteran's October 1969 discharge report of medical examination shows that the Veteran's pure tone thresholds (ISO or ANSI units after conversion are in parentheses), in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) 5 (15) 5 (15) / 10 (15) LEFT 5 (20) 5 (15) 5 (15) / 10 (15) However, also of record is an audiogram card dated in September 1969, which shows pure tone thresholds (ISO or ANSI units after conversion are in parentheses), in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 (30) 10 (20) 5 (15) 5 (15) 10 (15) LEFT 15 (30) 20 (30) 10 (20) 5 (15) 15 (20) Service treatment records also show that the Veteran was treated in April 1968 for an ear ache. The Board notes that an October 1969 (separation) Report of Medical History form, although signed by the Veteran and by an examiner, is completely blank. Post-service, a March 1978 private audiological record shows pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 35 / 55 LEFT 25 35 40 / 65 The Board notes that these results meet the criteria for a hearing loss disability in both ears. See 38 C.F.R. § 3.385. Also of record is a summary of the Veteran's annual hearing test data from 1983 to 2007. In an April 2014 statement, the Veteran reported that he was exposed to noise from artillery guns while serving in Germany. He reported that he had problems with his ears, but he did not go to sick bay until he "could not stand the pain anymore." He also reported that he was always around the gun when it was fired and that the only hearing protection he used was cigarette butts as ear plugs. See also October 2016 Hearing Transcript. The Veteran was afforded a VA examination in December 2012. Following a physical examination of the Veteran and a review of the claims file, the VA examiner diagnosed the Veteran with bilateral hearing loss and tinnitus. The examiner opined that the Veteran's bilateral hearing loss was less likely as not related to service because "[e]ntrance and separation exams were WNL bilaterally with no significant threshold shifts." The examiner declined to give an etiology opinion regarding tinnitus because the Veteran had normal hearing at separation. Two days later, a different VA examiner reviewed the claims file and opined that tinnitus was not caused by or the result of acoustic trauma during service because "[a] review of the [V]eteran's STRs fails to indicate the presence of tinnitus during active military service." The examiner also opined that the most likely etiology for the Veteran's tinnitus was the Veteran's current bilateral hearing loss. The Board finds the December 2012 opinions insufficient to allow the Board to determine whether the Veteran is entitled to service connection for bilateral hearing loss and tinnitus. As an initial matter, the opinion that the Veteran had no change in hearing sensitivity appears to be based on an inaccurate factual premise and reflects a less than thorough review of the evidence. See Reonal v. Brown, 5 Vet.App. 458, 461 (1993) (holding that a medical opinion based on an inaccurate factual premise has no probative value). In this regard, although the results recorded at the Veteran's October 1969 discharge examination do not show any threshold shifts (except at 4000 Hz in the left ear), the September 1969 audiogram appears to show significant threshold shifts at multiple frequencies when compared to the Veteran's February 1968 entrance examination. It is not clear whether the examiners considered this evidence in rendering the negative nexus opinions. Further, the VA examiners based the negative nexus opinions on a finding that the Veteran's hearing at separation was within normal limits and that the Veteran's tinnitus started after service. Relying on the absence of evidence in medical records without regard for lay statement to provide a negative opinion is contrary to established case law, and such opinions are therefore inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Moreover, hearing acuity within normal limits on separation does not preclude service connection for a current hearing loss disability. See Hensley v. Brown, 5 Vet. App. 155 (1993); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). In Hensley v. Brown, 5 Vet. App. 155 (1993), the United States Court of Appeals for Veterans Claims (Court) held that even though a hearing disorder may not have been demonstrated at separation, a veteran may still establish service connection for a current hearing disorder by showing he now has a hearing disorder and by submitting evidence that his current hearing disability is related to his active military service. See also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). In Hensley, there was an upward shift in threshold levels at some frequencies on an examination for separation and in-service audiometric testing yielded elevated thresholds at some frequencies. Thus, the Court found that the claim could not be denied solely because the hearing loss did not meet the criteria for 38 C.F.R. § 3.385 at separation. Rather, if there were any current hearing loss (by VA standards) it had to be determined whether shifts in auditory thresholds during service represented the onset of any current hearing loss (even if first diagnosed a number of years after service). Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current hearing disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service. See 38 U.S.C. §§ 1110; C.F.R. §§ 3.303 and 3.304; Hensley, 5 Vet. App. at 159-60. Here, as noted above, the audiogram dated in September 1969 appears to show significant threshold shifts at multiple frequencies when compared to the Veteran's February 1968 entrance examination. However, the examiners did not address this evidence in rendering the negative nexus opinions. Nor did the examiners discuss the service treatment records showing treatment for ear pain or the private audiological records showing hearing loss by VA standards as early as 1978. In light of the foregoing, the claim must be remanded for an addendum opinion with an adequate rationale regarding the etiology of the Veteran's diagnosed bilateral hearing loss and tinnitus. See 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007) (Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence...is essential for a proper appellate decision"). Furthermore, with respect to the Veteran's claim of entitlement to service connection for tinnitus, the Board finds that this claim is inextricably intertwined with his pending service connection claim for bilateral hearing loss. Specifically, as noted above, the December 2012 VA examiner stated that the Veteran's tinnitus is at least as likely as not due to his bilateral hearing loss. Thus, it is appropriate to defer final appellate review of the tinnitus issue until the inextricably intertwined claim of entitlement to service connection for bilateral hearing loss has been adjudicated. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). Accordingly, the case is REMANDED for the following action: 1. Obtain an addendum opinion regarding the nature and etiology of the Veteran's diagnosed bilateral hearing loss and tinnitus. The claims file and a copy of this REMAND must be made available to the reviewing examiner, and the examiner shall indicate in the addendum report that the claims file was reviewed. If an examination is deemed necessary in rendering the addendum opinion, another evaluation should be conducted. Following a review of the claims file, and if necessary an examination of the Veteran, the reviewing examiner should provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's bilateral hearing loss and tinnitus are related to his military noise exposure. In so opining, the examiner must do the following: (a) Consider the converted ASA to ISO-ANSI standards in evaluating the results of the in-service audiograms. (b) Review and comment on (i) the in-service audiograms of record and discuss the shifts in hearing thresholds between the Veteran's entrance into service in February 1968, an audiogram dated in September 1968, and his separation from service in October 1969; (ii) the April 1968 service treatment record showing treatment for ear pain; and (iii) the private audiological records showing hearing loss by VA standards as early as 1978. (c) Explain the significance of the absence or presence of threshold shifts and severity of such threshold shifts in relation to the likelihood that military noise exposure caused permanent hearing damage. (d) Explain the significance of normal hearing in relation to the likelihood military noise exposure caused permanent hearing damage, including addressing theories of delayed/latent onset of hearing loss. For purposes of this opinion, the Board notes that there is a factual basis in the record to support the Veteran's account of his exposure to hazardous levels of noise in-service while performing his duties as an artillery crewman, which is deemed credible, and therefore the "in-service injury" of acoustic trauma is conceded. The examiner is also advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history and the relevant sciences as applicable to this case, which may reasonably explain the medical guidance in this study of this case. 2. After the above development has been completed, review the file and ensure that all development sought in this REMAND is completed. Arrange for any further development indicated by the results of the development requested above, and then re-adjudicate the claims. If benefits sought on appeal remain denied, supply the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the case should be returned to the Board for further appellate review, if otherwise in order. 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). _________________________________________________ DEBORAH W. SINGLETON 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).