Citation Nr: 0814203 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 06-14 375 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a pulmonary disability, to include asbestosis. REPRESENTATION Appellant represented by: Pennsylvania Department of Military and Veterans Affairs ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The veteran had active service from January 1943 to March 1946. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision in which the RO denied service connection for bilateral hearing loss, tinnitus, and a pulmonary disability, to include asbestosis. The veteran filed a notice of disagreement (NOD) in June 2005, and the RO issued a statement of the case (SOC) in April 2006. The veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in May 2006. In November 2006, the RO issued a supplemental statement of the case (SSOC), continuing the denials of the claims. The Board's decision on the claim for service connection for bilateral hearing loss is set forth below. The claims for service connection for tinnitus and for a pulmonary disability, to include asbestosis, are addressed in the remand following the order; these matters are being remanded to RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim for service connection for bilateral hearing loss has been accomplished. 2. The veteran currently has bilateral hearing loss to an extent recognized as a disability for VA purposes. 3. The veteran's assertion of noise exposure in service is consistent with his established combat service. 4. The competent evidence is, at least, evenly balanced on the question of whether the veteran's current bilateral hearing loss is medically related to in-service noise exposure. CONCLUSION OF LAW With all reasonable doubt resolved in the veteran's favor, the criteria for service connection for bilateral hearing loss are met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2007)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). In view of the Board's favorable disposition of the veteran's claim for service connection for bilateral hearing loss, the Board finds that all notification and development action needed to fairly adjudicate this claim has been accomplished. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). Such a 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, 143 (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) (2007). Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2007). The veteran asserts that his current bilateral hearing loss is the result of noise exposure from his service aboard Navy ships during World War II. The veteran acknowledges that, after service, he experienced noise exposure when working for a railroad and in a steel mill, but maintains that his hearing loss is attributable to in-service, rather than post- service, noise exposure. Service medical records reflect no complaints or findings of hearing loss. Although the veteran was not specifically diagnosed with hearing loss of either ear during service, the Board notes that the absence of in-service evidence of hearing loss is not fatal to the claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Competent evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above), and a medically sound basis for attributing such disability to service, may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). On the authorized VA audiological evaluation in June 2006, the veterans pure tone thresholds, in decibels, were as follows: Hertz 1,000 2,000 3,000 4,000 Right ear 55 80 70 85 Left ear 60 80 80 85 Speech audiometry revealed speech recognition ability of 80 percent in the right ear and 52 percent in the left ear. Thus, the audiometric testing results clearly establish bilateral hearing loss to an extent recognized as a disability for VA purposes, as defined in 38 C.F.R. § 3.385 (2007). As noted, the veteran claims that he experienced in-service noise exposure while serving aboard a Navy ship during World War II. While the veteran's service medical records do not document the occurrence of, or treatment for, any specific incidence of acoustic trauma, the veteran's service personnel served during operations in support of the invasion and occupation of Okinawa and Iwo Jima, and his discharge certificate reflects that he received the European and Pacific Theater Ribbons. These documents reflect that the veteran engaged in combat. See 38 U.S.C.A. § 1154(b) (West 2002 & Supp. 2007). For injuries that are alleged to have been incurred in combat, 38 U.S.C.A. § 1154(b) provides a relaxed evidentiary standard of proof to determine service connection. See Collette v. Brown, 82 F.3d 389 (1996). VA regulations provide that in the case of any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of service, even though there is no official record of such incurrence or aggravation. See 38 U.S.C.A. § 1154(b) (West 2002 & Supp. 2007); 38 C.F.R. § 3.304(d) (2007); see generally Peters v. Brown, 6 Vet. App. 540, 543 (1994). This reduced evidentiary burden only applies to the question of service incurrence, and not to the question of either current disability or nexus to service, both of which generally require competent medical evidence. See Brock v. Brown, 10 Vet. App. 155, 162 (1997); Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459, 464 (1996). Thus, although there is no objective evidence to support a specific incident of acoustic trauma in service, the Board accepts the veteran's assertions of in-service noise exposure as credible and consistent with the circumstances of his service. Therefore, the question remaining is whether there is a medically sound basis for attributing the veteran's bilateral hearing loss to service. See Hensley, 5 Vet. App. at 159. The audiologist who performed the June 2006 VA audiology examination, noting the lack of audiological testing in service and long history of post-service occupational exposure, wrote, "I cannot resolve this issue without resort to mere speculation." However, a VA physician rendered provided a somewhat more definitive comment in a July 2006 opinion. Noting the veteran's in-service and post-service noise exposure, the VA physician wrote that, while there was definite evidence of noise-induced hearing loss, "I doubt that even King Solomon could differentiate the hearing loss due to his military experience from that of his post-military occupational noise exposure." After reviewing the audiological test results and noting the veteran's in-service noise exposure, the physician wrote, "I am sure this caused some hearing loss but just how much one can never know." Although the audiologist was, essentially, unable to provide a nexus opinion, the physician did find some link between the veteran's bilateral hearing loss and in-service noise exposure. Admittedly, the doctor expressed some question as to the extent to which post-service noise exposure also contributes to the veteran's hearing loss; however, he certainly did not rule out the in-service noise exposure as a causative factor, and the legal authority governing service connection does not require that an in-service injury or disease be the sole factor in the development of a disability. Under these circumstances, the Board finds that the competent evidence is, at least, in relative equipoise, on the question of whether there exists a medical nexus between current bilateral hearing loss and service. When, as here, after consideration of all evidence and material of record in a case for VA benefits, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving such issue shall be given to the claimant. See 38 C.F.R. § 3.102 (2007). See also 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2007); Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). On these facts, and with resolution of all reasonable doubt in the appellant's favor, the criteria for service connection are met. ORDER Service connection for bilateral hearing loss is granted. REMAND The Board's review of the record reveals that further RO action on the claims for service connection for tinnitus and for a pulmonary disability, to include asbestosis, is warranted. After issuance of the November 2006 SSOC, and prior to certification and transfer of the appeal to the Board, the RO sent an April 2007 memorandum to the veteran's representative requesting that the representative prepare a statement of accredited representative in appealed case (VA Form 646), or check a box indicating an acknowledgement in lieu of filing such a statement. While the veteran's representative signed and returned the form, no VA Form 646 was filed, nor was the box checked to indicate acknowledgment in lieu of VA Form 646. To ensure that the veteran's representative has had full opportunity to provide argument on the veteran's behalf in connection with the remaining claims, the Board finds that further action in this regard is warranted, While these matters are on remand, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims for service connection for service connection for tinnitus and for a pulmonary disability, to include asbestosis. Accordingly, these matters are hereby REMANDED to the RO, via the AMC, for the following: 1. The RO should afford the veteran's representative further opportunity to provide written argument on the remaining claims for service connection for tinnitus and a pulmonary disability, to include asbestosis, or to clearly indicate that the representative declines the opportunity to do so. 2. To help avoid future remand, the RO must ensure that all requested action has been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 3. After completing the requested action, and any additional notification and development deemed warranted, the RO should readjudicate the claims for service connection for service connection for tinnitus and for a pulmonary disability, to include asbestosis, in light of all pertinent evidence and legal authority. 4. If any benefits sought on appeal remain denied, the RO must furnish to the veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but he may furnish additional evidence and argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). These claims 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 Supp. 2007). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs