Citation Nr: 1807773	
Decision Date: 02/06/18    Archive Date: 02/14/18

DOCKET NO.  03-35-244	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUES

1. Entitlement to service connection for left ear hearing loss. 

2. Entitlement to service connection for rhinitis and sinusitis.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

J. Dworkin, Associate Counsel
INTRODUCTION

The Veteran served on active duty from January 1972 to June 1974. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. 

In January 2009, the Veteran testified during a hearing before a Veterans Law Judge (VLJ) at the Los Angeles, California RO. A transcript of the hearing is of record. Although that VLJ has since retired from the Board, the Veteran did not respond to a January 2015 letter asking him if he wanted to have another Board hearing.

In July 2009 and April 2015, the Board remanded the case for additional development. 

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


FINDING OF FACT

Left ear hearing loss is etiologically related to noise exposure in service.


CONCLUSION OF LAW

Left ear hearing loss was incurred in active service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.385 (2017).



REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duty to Notify and Assist

Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.159 (2017); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided with 38 U.S.C. § 5103(a)-compliant notice in June 2005. 

The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The Veteran was provided VA examinations with respect to his claim, and the examinations adequately provide the findings necessary to a resolution to the appeal. 

The Veteran has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

II. Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2017). 

For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385 (2017).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant.  38 U.S.C. § 5107 (West 2014); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518 (1996).

The Veteran asserts that his left hearing loss is as a result of acoustic trauma sustained in active service.  The Board notes that the Veteran has been granted service connection for right ear hearing loss based upon hazardous noise exposure in service.  Therefore, exposure to hazardous noise has been conceded.  

The January 1972 enlistment examination contains an audiogram with the following pure tone thresholds, in decibels:


HERTZ

500
1000
2000
3000
4000
RIGHT
10
10
15
N/A
15
LEFT
10
5
15
N/A
10

The May 1974 separation examination contains an audiogram with the following pure tone thresholds, in decibels:


HERTZ

500
1000
2000
3000
4000
RIGHT
10
10
10
N/A
10
LEFT
10
10
10
N/A
10

The clinical assessments of the Veteran's ears were normal upon enlistment and separation.

A March 2004 VA treatment record contains a diagnosis of hearing loss. The clinician opined that this condition was "likely secondary" to in-service noise exposure.

In June 2007, a clinician opined that the Veteran's hearing loss was "more likely than not" caused by in-service noise exposure.

A VA audiology examination was provided in January 2011. The Veteran stated that he was exposed to bazookas, tanks, jet engines, and various weapons during service. He denied civilian noise exposure. Objective testing showed pure tone thresholds as follows:


HERTZ

500
1000
2000
3000
4000
RIGHT
20
15
20
40
45
LEFT
15
15
15
35
35

A July 2017 VA audiological examination showed that the Veteran was diagnosed with bilateral sensorineural hearing loss. Objective testing showed pure tone thresholds as follows:


HERTZ

500
1000
2000
3000
4000
RIGHT
15
20
25
55
45
LEFT
15
15
25
45
35

The VA examiner opined that it was less likely than not that the left ear hearing loss was related to service. The examiner's rationale noted that there was no significant change in hearing was shown on in-service audiograms and no evidence of hearing loss during service. 

Based on a review of the evidence, the Board concludes that service connection for left ear hearing loss is warranted. While the Veteran's service treatment records, to include his separation examination, are negative of any complaints of, treatment for, or diagnosis of hearing loss, he has submitted statements that he first noticed this condition during service and that it has continued since that time. While the Veteran is not competent to provide an opinion as to a diagnosis of a hearing loss disability as defined by 38 C.F.R.§ 3.385, his statement as to the presence of some degree of hearing loss is evidence in support of the claim. Secondly, the DD Form 214 shows that the Veteran was a light weapons infantryman and was awarded the parachute badge. His assertions relating to his exposure to excessive noise during that time are consistent with the record. See 38 U.S.C. § 1154(b). Accordingly, the record contains sufficient evidence to find that the Veteran incurred acoustic trauma during service and first noticed some degree of hearing loss while on active duty, which has continued over the many years since service.

There is also medical evidence dated confirming that the Veteran has a left ear hearing loss disability as defined by 38 C.F.R. § 3.385. The question remains whether there is competent evidence of a nexus between this current condition and service, to include his exposure to acoustic trauma.

The Board is cognizant of the decades that elapsed before a hearing loss disability was first demonstrated clinically. However, as explained above, the Veteran currently has left ear hearing loss and sustained acoustic trauma during service. He has provided a history of hearing loss since service that stands uncontradicted in the record. The VA treatment records and VA examination reports indicate that the audiologists found the Veteran to have hearing loss consistent with acoustic trauma due to service. The most recent July 2017 VA examiner did not comment on the Veteran's report of continuity of symptoms since service, which makes his assessment without any value when adjudicating the question of service connection.

Accordingly, in considering the in-service noise exposure, the competent lay evidence of in-service onset of hearing loss, the March 2004 and June 2007 positive nexus opinions, and by affording the Veteran the benefit-of-the-doubt, the Board finds that it is at least as likely as not that he has left ear hearing loss that is traceable to military service. The evidence is in favor of a grant of service connection. See 38 U.S.C §5107.


ORDER

Entitlement to service connection for left ear hearing loss is granted.


REMAND

The Veteran asserts that allergic rhinitis and sinusitis are related to service. The Veteran reports that his symptoms onset in 1972 and 1973, and persisted since separation from service. An April 1974 service treatment record showed that the Veteran was diagnosed with sinusitis.

A February 2000 private treatment record shows that the Veteran sought treatment for chronic sinusitis after removal of nasal polys 2 months prior. 

A December 2010 statement from the Veteran shows that he claimed that after falling during a parachute exercise and impacting the ground his rhinitis/sinusitis symptoms onset. 

A December 2010 VA examination report noted that the Veteran reported sinus problems since 1972. Sinus problems were noted to occur 6 times per year lasting for 2 weeks. No antibiotic treatments was needed for the problem. A sinus radiology report shows that the sinuses were normally developed. A nasal septal deviation to the right was noted. The impression was of post-inflammatory changes in the anterior ethmoids and both maxillary sinuses, most likely chronic. 

A July 2017 VA examination report shows that the Veteran was diagnosed with allergic and non-allergic rhinitis as well as sinusitis. After a review of the service treatment and post service treatment records, the examiner opined that it was less likely than not that the Veteran's rhinitis and sinusitis are related to service. The examiner reported that it would be resorting to speculation to support causation from military service. The examiner reported that the Veteran had one episode of sinusitis in 1974, with no documentation thereafter until many years after service, which did not support military causation. The examiner also noted that the evidence did not support that allergic rhinitis was secondary to his service above and beyond his other contributing issues, such as aircraft construction for 15 years post military service and drug use. The examiner also noted that the history the Veteran had for a retention cyst was not responsible for sinusitis and he did not take antibiotics often for a sinus issues or upper respiratory infection. 

While the Board notes that the July 2017 VA examination report provided an etiological opinion regarding the Veteran's rhinitis and sinusitis, the examiner did not comment upon the Veteran's contention that his injury from a parachute accident caused injuries that caused his sinusitis and rhinitis. Therefore, the Board finds that additional VA opinion must be provided to contend with the Veteran's assertions of causation.

Accordingly, the case is REMANDED for the following actions:

1. Obtain an addendum opinion from an otolaryngologist, or other qualified medical professional, regarding the etiology of the Veteran's claimed rhinitis and sinusitis disability. The examiner must review the entire claims file and must note that review in the examination report. The examiner should clearly set forth the rationale for all opinions expressed. An additional examination of the Veteran should be performed only if deemed necessary by the individual providing the opinion. The VA examiner should provide an opinion as to the following:
 
Whether it is at least as likely as not (a 50 percent probability or greater) that any rhinitis or sinusitis is directly related to active service, to include an in-service parachute accident.

2. Then, readjudicate the claim. If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board.

The appellant has the right to submit additional evidence and argument on the matter 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).




____________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs