Citation Nr: 0000123 Decision Date: 01/04/00 Archive Date: 12/28/01 DOCKET NO. 94-00 294 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD R. A. Seaman, Associate Counsel INTRODUCTION The veteran served on active duty from April 1942 to December 1945. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 1992 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The veteran provided testimony at a personal hearing before the RO in August 1993. A transcript of that hearing is of record. This matter was previously before the Board in July 1995 and October 1996, at which times it was remanded for additional development. The RO affirmed the denial of entitlement to service connection for bilateral hearing loss in December 1998. The case has been returned to the Board for further appellate consideration. FINDINGS OF FACT 1. Competent evidence is of record which indicates that the veteran suffered acoustic trauma and complained of hearing loss while on active duty. 2. Audiometric testing has revealed that the veteran currently has moderate to severe sensorineural hearing loss bilaterally. 3. Competent medical evidence has related the veteran's current hearing loss disability to the acoustic trauma he experienced while on active duty. CONCLUSION OF LAW The veteran's claim of entitlement to service connection for bilateral hearing loss is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The veteran's service medical records reflect that he was treated on three occasions, between October 1943 and January 1944, for ear problems. The final treatment records associated with the veteran's claims file reflect that he was hospitalized at Bethesda Naval Hospital for six weeks in December 1943, at which time the veteran was reported to have punctured an ear drum one month earlier. The RO received the veteran's application for compensation in December 1945, wherein he listed a hospitalization for his left ear at Bethesda Naval Hospital in October 1944. The veteran further indicated that his ear drum had been punctured by gun fire in July 1944. After review of his service medical records, the RO granted service connection for otitis media in December 1945. The veteran's service- connected otitis media was rated as zero percent disabling under Diagnostic Code 6201. In a September 1960 statement submitted in support of the veteran's request for an increased disability rating, J. Baker, D.O. reported that the veteran had been treated for a chronic draining otitis media of the left ear. VA examination for disability evaluation purposes in November 1960 included audiometric testing which resulted in diagnoses of impaired hearing and residuals of chronic suppurative otitis media (healed). VA examination in November 1978 again included audiometric testing which revealed a mild hearing loss. On an October 1992 audiological evaluation, the VA audiologist diagnosed bilateral sloping moderate to severe sensorineural hearing loss. The veteran reported a progressive loss of hearing in both ears, greater in the right ear than the left. The veteran was afforded a VA examination in January 1996. He reported that he had served in the Navy as a gunner's mate, and that he suffered a perforation of his left tympanic membrane after an explosion in 1943. He reiterated his complaints of progressive hearing loss. The veteran also reported a work history which included 22 years of work as a press operator with Ford Motor Company. He stated that he experienced noise exposure pursuant to that employment and did not utilize hearing protection. Examination revealed sclerosis of the left tympanic membrane with a small posterior and anterior perforation. There was crust anteriorly but no evidence of cholesteatoma. The auricle, external ear canal, tympanum and mastoid were all normal. It was further observed that there was no evidence of any active ear disease. Diagnosis in January 1966 was "[b]ilateral symmetric down sloping sensorineural hearing loss that is likely secondary to noise, his previous ear infection after the explosion near his left ear and aging." In an addendum to the examination dated in May 1997, the VA physician reiterated the opinion that the veteran's current hearing loss was likely secondary to noise, his previous ear infection after the in-service explosion, and aging. On a November 1998 audiological evaluation, the veteran complained of significant difficulty understanding speech in all situations. He reported to the VA audiologist his in- service history of noise exposure, mostly from weapons, as well as the noise exposure which he experienced subsequent to his service while working as a press operator. Diagnosis was "moderate to severe sloping sensorineural hearing loss in both the left and right ear." In the assessment, the examiner noted "Mr. Eck is a 73 year old gentleman with a history of extensive noise exposure secondary to his work as a gunner's mate in the Navy during the Second World War. The patient also sustained a traumatic perforation of the left ear in 1944 secondary to an explosion. Although the patient appears to have healed the perforation, he does have extensive scarring and tympanosclerosis, which may be responsible for the mild discrepancy between left and right sides. Although the patient almost certainly has a degree of presbycusis, a superimposed noise-induced loss is likely given the history and the notching at 4000 Hz. No audiograms prior to 1992 were available for review today." Criteria Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (1999). Service connection may also be granted for certain chronic diseases, including sensorineural hearing loss, if manifest to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998), the United States Court of Appeals for the Federal Circuit held that, under section 5107(a), the VA has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (Court) issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Because there is no duty to assist under 38 U.S.C. § 5107(a) absent the submission of a well-grounded claim, the Court held that the Secretary cannot undertake to assist a veteran in developing facts pertinent to his or her claim until such a claim has first been established. Thus, the threshold question that must be resolved is whether the veteran has presented evidence of a well-grounded claim. A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. An allegation that a disorder is service connected is not sufficient; the veteran must submit evidence in support of a claim that would "justify a belief by a fair and impartial individual that the claim is plausible." See 38 U.S.C.A. § 5107(a) (West 1991); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The quality and quantity of the evidence required to meet this statutory burden of necessity will depend upon the issue presented by the claim. Grottveit v. Brown, 5 Vet. App 91, 92-93 (1993). A well-grounded service connection claim generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the asserted in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam). Where the determinative issue involves medical etiology or a medical diagnosis, competent medical evidence that a claim is "plausible" or "possible" is required for the claim to be well grounded. See Epps v. Gober, 126 F.3d 1464, 1469 (Fed. Cir. 1997) (adopting the Court's prior definition of a well- grounded claim as set forth in Caluza, 7 Vet. App. at 506); Grottveit, 5 Vet. App. at 93. This burden may not be met merely by presenting lay testimony, as lay persons are not competent to offer medical opinions. See, e.g., Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). For the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 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 (1999). Further, the Court has indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Id. at 160. Analysis The Board notes that the last record reflecting in-service treatment for otitis media, dated in December 1943, reflects that the veteran complained at that time of poor hearing in his left ear. The examination generated pursuant to the veteran's discharge from service notes that he was treated at least three times for otitis media while in service. However, service medical records do not reflect the origin or causation of the veteran's in-service ear disorders. Nevertheless, the service records are clear in showing that the veteran suffered from a perforated ear drum during service, and thus it cannot be said that the veteran did not suffer some kind of acoustic trauma during his active duty. Therefore, the first "prong" of Caluza, i.e., an in-service injury, has been met. Post-service medical records have clearly provided diagnosis that the veteran suffers from a current bilateral hearing loss. Further, the VA examinations performed in 1996 and 1998 contain medical opinions that relate the veteran's current bilateral hearing loss to the left ear injury, or injuries, that the veteran suffered in service. Thus, the Board finds that the second and third prong of Caluza are met, and holds that the veteran has submitted a well-grounded claim for service connection for bilateral hearing loss, secondary to acoustic trauma the veteran experienced while on active duty. ORDER The claim of entitlement to service connection for bilateral hearing loss is well-grounded. REMAND The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. The Board recognizes that VA has a duty to assist the veteran in the development of facts pertinent to his well-grounded claim. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.159. This duty is neither optional nor discretionary. Littke v. Derwinski, 1 Vet. App. 90, 92 (1990). In Stegall v. West, 11 Vet. App. 268 (1998), the Court held that a remand by the Board conferred on the veteran, as a matter of law, the right to compliance with the remand's instructions. In the instant case, the Board finds that the instructions for further development set forth within the October 1996 remand have not been met with full compliance that would allow the Board to render a fair and equitable decision. In its July 1995 remand, the Board requested that a VA audiometric examination be performed to evaluate the veteran's bilateral hearing loss. The remand further requested that the VA examiner provide answers to certain detailed questions regarding the veteran's hearing loss. Specifically, the examiner was asked to elicit a detailed account from the veteran regarding in-service ear problems and noise exposure. The examiner was also asked to provide a medical opinion as to the etiology of any hearing loss and its probable date of onset. Pursuant to the Board's July 1995 remand, the veteran was afforded VA examination in January 1996. After audiological evaluation, the examining physician opined that the veteran's current hearing loss was likely secondary to noise, his previous ear infection after the explosion near his left ear, and aging. However, there is no indication in the examination report that the veteran's claims file was reviewed. Indeed, it appeared that the etiological opinion was based on history alone as reiterated by the veteran. The Board remanded the veteran's claim in October 1996, requesting that his claims file be reviewed by an ear, nose, and throat specialist in order to determine the etiology of the veteran's current hearing loss. In an October 1998 request for said VA examination, the RO specifically asked for an etiological opinion by a VA ear, nose, and throat physician after reviewing the veteran's claims file. The RO also asked specifically that the examiner should render an opinion as to "whether it is at least as likely as not" that the veteran's current hearing loss is related to service. The VA physician's November 1998 report, however, contains no etiological opinion. It was noted that the veteran has a history of extensive noise exposure secondary to his work as a gunner's mate. There is no response, however, regarding the RO's request for the reporting physician to opine as to whether it is at least as likely as not that the veteran's current hearing loss is related to any in-service injury or disease. Moreover, the examining physician noted that "[n]o audiograms prior to 1992 were available for review today." Therefore, it appears to the Board that the physician did not have the opportunity to review the veteran's claims file in its totality, as the claim file reflects that the veteran underwent audiometric examination during service, including audio evaluation performed at the service induction and separation examinations. Also of record, but not appearing to have been considered, are the veteran's audiometric examination reports from November 1960 and November 1978. In this regard, the Board notes that the Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1999), provides that is an essential requirement that examinations view each disability in relation to its history. 38 C.F.R. § 4.1 (1999). The Board is of the opinion therefore, that an opinion pertaining the etiology of the veteran's bilateral hearing loss, rendered after a complete and thorough review of the veteran's claims file, and preferably by the VA physician who conducted the November 1998 examination, would be of assistance in this case. Additionally, the Board notes that in his December 1945 claim, the veteran reported that he had been hospitalized for his left ear at Bethesda Naval Hospital in October 1944. During a hearing at the RO in October 1993, the veteran recalled being hospitalized at Bethesda Naval Hospital for two months after a gun went off near his ear when he was not wearing ear protection. Therefore, the Board informed the RO in it's October 1996 remand that it should attempt to determine whether additional hospitalization records for the veteran's period of service are available. Pursuant to that instruction, the RO wrote to the veteran in November 1996 and requested that he identify all in-service treatment he had received for his ears and hearing loss. The claims file reflects that the veteran did not respond to the RO's request. The record also shows that the RO contacted Bethesda Naval Hospital directly in an attempt to obtain records that might reflect medical treatment the veteran received in October 1944. However, the record contains no evidence that Bethesda Naval Hospital responded to that request in any manner. Finally, the Board notes that during his August 1993 hearing, the veteran testified that the injuries he suffered to his ears during service were the result of firing weapons during combat. Specifically, the veteran testified that he served on the "USS Duncan," the "AKA Aquarius," and a Navy "tanker." The record, however, including the veteran's DD Form 214, is not clear on this matter. Accordingly, the case is remanded for the following: 1. The RO should attempt to obtain the specific medical record(s) from Bethesda Naval Hospital reflecting medical treatment the veteran received at that facility from October 1944. If it is determined that said record(s) cannot be obtained, the RO should note that fact in the claims file provide the reasons why said records are unobtainable. Any response from the subject naval facility should be documented in the claims file. 2. The RO should request all necessary service records from the appropriate service department in order to determine whether there is evidence establishing that the veteran served in combat. 3. The RO should arrange for the veteran's claims file to be referred back to the VA physician who performed the November 1998 audiometric examination with a request that the physician perform a complete and thorough review of the veteran's claims file, to include review of service medical records and all VA audiometric examinations performed subsequent to the veteran's discharge from service. The VA physician should be requested to provide an opinion regarding the etiology of the veteran's bilateral hearing loss, and to specifically opine whether is it as least as likely as not that the veteran's current hearing loss is related to any incident of service. Based upon review of pertinent information in the claims folder, the VA physician should determine, if possible, whether the veteran has suffered any intercurrent causes(s) of hearing loss, and if so, an opinion should be expressed as to the extent, if any, the post-service hearing loss can be dissociated from hearing loss due to any incident(s) of service, and if so, the physician should designate the nature and severity of the hearing loss incurred during service as opposed to that due to intercurrent cause(s) of hearing loss. If the VA physician performing the November 1998 examination is not currently available to render said opinions, the RO should schedule another appropriate specialist to conduct a review of the veteran's claims file and render the above-requested opinions. Any opinions rendered must be accompanied by a complete rationale. 4. Thereafter, the RO should carefully review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the RO should review the requested opinions (and additional examination if required) to ensure that they are responsive to and in complete compliance with the directives of this remand and if they are not, the RO should implement corrective procedures. The RO and the veteran are advised that the Board is obligated by law to ensure that the RO complies with its directives. See Stegall, supra. 5. After undertaking any development deemed essential in addition to that specified above, the RO should readjudicate the issue of entitlement to service connection for bilateral hearing loss, with application of 38 U.S.C.A. § 1154(b) (West 1991) and 38 C.F.R. § 3.304(d) (1999), if warranted If the benefit sought on appeal is not granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review. By this remand, the Board intimates no opinion as to any final outcome warranted. The purpose of this remand is to obtain additional information and to ensure due process of law. No action is required of the veteran until he is notified by the RO. RONALD R. BOSCH Member, Board of Veterans' Appeals