Citation Nr: 1736627	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  09-47 436	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1. Entitlement to service connection for a bilateral hearing loss disability.

2. Entitlement to an effective date earlier than March 19, 2013 for the award of service-connection for right upper extremity cervical radiculopathy.

3. Entitlement to an effective date earlier than January 16, 2009 for service-connected left upper extremity cervical radiculopathy.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Robert A. Elliott II, Associate Counsel

INTRODUCTION

The Veteran served on active duty from October 1987 to April 2001.

This matter is on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia and a May 2013 rating decision of the Appeals Management Center (AMC) in Washington, D.C. Jurisdiction of the claim is currently with the RO in Roanoke, Virginia.

The Board notes that in a January 2013 rating decision, the RO implemented the Board's January 2013 decision to award a 10 percent rating for scars to the little finger of the left hand.  The RO assigned an effective date of February 25, 2009 for the award of the increase.  The Veteran disagreed with the effective date and perfected an appeal as to this issue in May 2016, at which time he requested a hearing before the Board.  It appears the Veteran has since withdrawn that hearing request; however, the issue has not been certified to the Board and it is unclear whether the agency of original jurisdiction (AOJ) continues to work on the appeal.  As such, the issue will not exercise jurisdiction of that appeal at this time and it is referred to the RO for completion and certification if otherwise in order.

The cervical radiculopathy effective date claims are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

A bilateral hearing loss disability had its onset during service.





CONCLUSION OF LAW

The criteria for service connection for a bilateral hearing loss disability are met.  38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2014); 38 C.F.R. § 3.303 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

In order to obtain service connection (under 38 U.S.C.A. §§ 1110, 1131 and 38 C.F.R. § 3.303), the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, i.e., a "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

Where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2016).

Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307  and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. 

With respect to continuity of symptomatology, the Court has held that, under 38 C.F.R. §3.303(b), the theory of continuity of symptomatology is an alternative route to establish service connection for specific chronic diseases, including bilateral hearing loss and tinnitus,  and can only be used in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  As an organic disease of the nervous system, sensorineural hearing loss is considered a chronic disease under 38 C.F.R. § 3.309(a).  

The competence, credibility, and probative (relative) weight of evidence, including lay evidence must be assessed.  See generally 38 U.S.C.A. § 1154 (a).  Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the unique and readily identifiable features of a medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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.  Further, an examination for hearing impairment must meet the four requirements of 38 C.F.R. § 4.85 (a).  It must be conducted by a state-licensed audiologist, the examination must include a controlled speech discrimination test (Maryland CNC), the examination must include a puretone audiometry test, and the examination must be conducted without the use of hearing aids.

"[W]hen audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service."  Hensley v. Brown, 5 Vet. App. 155, 160 (1993).  The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Id. at 157.

The Veteran alleges that his bilateral hearing loss result from acoustic trauma sustained during his active duty service. 

With regard to the first element of service connection, current disability, the Veteran has a current diagnosis of a bilateral hearing loss disability as defined by 38 C.F.R. § 3.385.  See a May 2016 Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ).

With regard to the second element of service connection, in-service incurrence or aggravation of a disease or injury, the evidence demonstrates that the Veteran was a hazardous material control management technician and shipboard CBR defense
operation and training specialist during his active duty service.  His service records indicate that associated duties would place him in areas where there was hazardous noise.  He has credibly discussed working in and around engineering plants and helicopters, and VA has already awarded service-connected for tinnitus based on exposure to in-service noise.  Thus, in-service acoustic trauma to the ears has been conceded.  See the October 2014 Board Decision. 

With regard to the third element of service connection, nexus, the Board finds that there is sufficient competent and credible lay evidence to establish that there is a likely continuity of symptoms from the time of service until the present.  See 38 C.F.R. § 3.303(b).

Indeed, hearing conservation data dated in February 2000 showed auditory thresholds in service of 20dB at 2000 Hz bilaterally, marking a 15dB threshold shift for each ear at that frequency.  At this February 2001 separation examination, the Veteran indicated that he "didn't know" whether he ever had hearing loss.  His audiological examination did not yield results identifying a hearing loss disability for VA purposes under 38 C.F.R. § 3.385. 

A July 2002 QTC fee-based examiner tested the Veteran's hearing acuity and diagnosed mild high frequency hearing loss that was worse in the left ear with complaint of mild intermittent tinnitus in both ears.  Although the loss did not meet the VA standards for a hearing loss disability for either ear at that time, the examiner pertinently indicated that the date of onset of his hearing loss was 8 to 10 years prior, which would be during the Veteran's period of active service. 

In February 2009, the Veteran attended a VA auditory consultation.  The examiner indicated that the Veteran appeared to be struggling with conversational speech in a quiet environment and that results indicated hearing is borderline normal with fair speech discrimination which is worse than what would normally be expected relative to degree and configuration of hearing results.  

In February 2011, the Veteran attended a DRO hearing.  Veteran stated he entered service with no hearing issues and that it wasn't until he started working around loud engineering plants, air stations and helicopters that his hearing started worsen. 

In May 2016, a Hearing Loss and Tinnitus DBQ was completed on behalf of the Veteran.  Puretone thresholds for the right and left ear, in decibels, were as follows:




HERTZ



500 
1000
2000
3000
4000
RIGHT
35
25
30
35
35









HERTZ



500
1000
2000
3000
4000
LEFT
30
20
35
35
25







Further, the examiner noted a Maryland CNC Test score of 92 percent for the right ear and 88 percent for the left ear.  These results indicated hearing loss that is considered a disability for VA purposes.  The examiner nevertheless opined that it was less likely that the Veteran's bilateral hearing loss was caused by or a result of an event in military service because there was no evidence of a significant threshold shifting during active duty service, nor did the Veteran meet the threshold levels for a hearing loss disability under 38 C.F.R. § 3.385 during service.  

Here, the Board finds the Veteran's assertions regarding the onset of his hearing loss and a continuity of symptoms since service are credible.  As noted above, the Veteran's in-service noise exposure, and his tinnitus has been medically attributed to such noise exposure.  Further, as the record above shows, even though the Veteran did not meet the standards identified in 38 C.F.R. § 3.385 for a bilateral hearing loss disability for VA purposes until 2016, the medical evidence demonstrates the presence and progression of hearing loss from service to the present day.  Notably, the July 2002 QTC fee-based examiner diagnosed the Veteran with mild sensorineural hearing loss that had its onset 8 to 10 years prior, which was during the Veteran's period of service.  The Veteran has consistently asserted that he experienced bilateral ear hearing loss in-service and that it continues to today.  

The Veteran's statements, when viewed in relation to the Veteran's in-service noise exposure, current hearing loss, and documented hearing loss progression from the time he separated from service to today are entitled to significant probative weight, and thus, are sufficient to establish the presence of a current bilateral hearing loss disability for VA purposes and a likely continuity of symptomatology from service to the present.  38 C.F.R. § 3.303(b).  The Board affords the May 2016 VA examiner's negative nexus opinion little weight, as it was based largely on the fact that the Veteran did not have hearing loss for VA purposes as defined under 38 C.F.R. § 3.385 at the time of separation.  Indeed, service connection for a disability diagnosed after discharge may be granted when the evidence establishes the disease was incurred in service.  See 38 C.F.R. § 3.303(d).  So it is in this case, and the benefit sought on appeal is granted.    


ORDER

Service connection for a bilateral hearing loss disability is granted.




REMAND

Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration.  38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016).

In October 2014, the Board issued a remand which instructed, in pertinent part, that the Veteran be issued a statement of the case (SOC) addressing the issues of entitlement to an effective date earlier than March 19, 2013 for the award of service-connection for his cervical radiculopathy of the right and left upper extremities.  Manlincon v. West 12 Vet. App. 238 (1999) 

In a November 2016 rating decision, the RO granted an effective date of January 16, 2009 for the award of service connection for left upper extremity cervical radiculopathy.   In the rating decision, the RO indicated this award was not a full grant on appeal.  The RO did not issue an SOC addressing either effective date claim, and the Veteran has not had the opportunity to perfect an appeal as to either matter.  Accordingly, both issues must be remanded again so that the AOJ can send the Veteran an SOC and provide an opportunity to perfect an appeal.

Accordingly, the case is REMANDED for the following action:

The RO should evaluate the evidence of record, and issue a statement of the case (SOC) to the Veteran and his representative regarding the issues of entitlement to an effective date earlier than March 19, 2013 for the award of service connection for right upper extremity cervical radiculopathy, and entitlement to an effective date earlier than January 16, 2009 for the award of service connection for left upper extremity cervical radiculopathy.  The Veteran is advised that a timely substantive appeal will be necessary to perfect an appeal to the Board concerning these claims.  
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.A. §§ 5109B, 7112 (West 2014).



______________________________________________
V. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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