Citation Nr: 1008167 Decision Date: 03/04/10 Archive Date: 03/11/10 DOCKET NO. 07-03 525 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for a fungal disability of the groin, feet, legs, and ears. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Muhlfeld, Associate Counsel INTRODUCTION The Veteran had active military service from October 1965 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. During the pendency of this appeal, the Veteran's claim for service connection for tinnitus was granted by way of a January 2010 rating decision. As this represents a complete grant of the claim on appeal, this issue is no longer before the Board. (Consideration of the appellant's claim for service connection for a fungal condition of the groin, legs, feet and ears is deferred pending completion of the development sought in the remand that follows the decision below.) FINDING OF FACT The Veteran does not have hearing loss attributable to active military service. CONCLUSION OF LAW The Veteran does not have hearing loss that is the result of disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will attempt to obtain on behalf of the claimant, and (3) any evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board notes that effective May 30, 2008, VA amended its regulations governing VA's duty to provide notice to a claimant regarding the information necessary to substantiate a claim. The new version of 38 CFR 3.159(b)(1), removes the portion of the regulation which stated that VA would request that the claimant provide any evidence in his possession that pertains to the claim. See 73 Fed. Reg. 23353-54 (April 30, 2008). The Board notes that the Veteran was apprised of VA's duties to both notify and assist in correspondence dated in February 2006, and September 2009. (Although the complete notice required by the VCAA was not provided until after the RO adjudicated the appellant's claims, any timing errors have been cured by the RO's subsequent actions. Id.) Specifically regarding VA's duty to notify, the notifications to the Veteran apprised him of what the evidence must show to establish entitlement to service connection, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. The Veteran was apprised of the criteria for assigning disability ratings and for award of an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist, the RO obtained the Veteran's service treatment records (STRs), service personnel records, VA and private medical records, and provided an examination in furtherance of his claim. The Board notes that a VA examination with respect to the issue on appeal was obtained in November 2009. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinion obtained in this case is more than adequate, as the opinion was predicated on consideration of the STRs and VA medical records in the Veteran's claims file, and considered all of the pertinent evidence of record, including the Veteran's lay statements regarding in-service noise exposure, and the date of onset of his hearing loss. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). In summary, no duty to assist was unmet. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). Further, it is not enough that an injury or disease occurred in service; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Certain chronic diseases, including sensorineural hearing loss (organic disease of the nervous system) may be presumed to have been incurred in or aggravated by active military service if shown to a compensable degree within one year of separation from qualifying active service. 38 C.F.R. §§ 3.307, 3.309. The Veteran contends that his hearing loss is the result of acoustic trauma while working as an armorer in Vietnam. He stated that he was exposed to artillery and rifles while in Vietnam. See February 2006 entry in the outpatient treatment records. His DD Form 214 noted that he served as an organizational supply specialist, with the related civilian occupation noted to be a stock clerk. The October 1965 entrance audiological evaluation reported that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -5(10) -5(5) 0(10) N/A 0(5) LEFT -5(10) 0(10) -5(5) N/A 5(10) The September 1967 separation audiological evaluation reported that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5(20) 0(10) -5(5) N/A 5(10) LEFT 0(15) 5(15) 5(15) N/A 10(15) At discharge, the Veteran checked no to "have you ever had or have you now" hearing loss. See September 1967 Report of Medical History. (The Board notes that both in-service audiological examinations occurred prior to October 31, 1967; therefore ASA units are assumed. The conversions from ASA to ISO (ANSI) units are shown in parentheses above). A September 2002 audiogram reflects a diagnosis of mild to moderate bilateral sensorineural hearing loss, and showed among other things, that his auditory thresholds at 4000 Hertz were greater than 40 decibels, bilaterally. A September 2002 progress note by J.B.B., M.D. gave the impression of sensorineural hearing loss, probably mostly noise-induced, associated with tinnitus in the left ear. This impression was based on the Veteran's report of serving in Vietnam, being raised and working on a farm, in addition to 34 years of construction work, and a fair amount of exposure to gunfire, both target and hunting. The Veteran was afforded a VA audiological evaluation in November 2009. At this examination, the Veteran reported in- service noise exposure, stating that he was exposed to trucks, self-propelled artillery units, Howitzers, and M14s while training. Regarding occupational noise exposure, the Veteran reported working as a utility man for ten to twelve months, before attending welding school for about twelve weeks, then working as an iron worker for 35 years until he retired in 2001. The Veteran reported wearing hearing protection during the last 15 to 20 years. Recreational noise exposure included target shooting while wearing muffs and ear plugs, and occasional gun and bow hunting. The November 2009 audiological evaluation reported that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 35 10 50 65 LEFT 15 25 75 70 80 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 76 percent in the left ear. The audiologist diagnosed the Veteran with normal to moderately severe sensorineural hearing loss in the right ear, and normal to severe sensorineural hearing loss in the left ear. After reviewing the claims file, including the STRs and the Veteran's statements regarding in-service noise exposure, the audiologist opined that the Veteran's hearing loss was not due to his military noise exposure. She explained that the basis of her opinion was that the Veteran's service treatment records showed normal hearing at separation in both ears and did not show any significant threshold shift for either ear at any frequency when comparing his enlistment and separation auditory examinations. The Board notes that for the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies 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. However, the threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155 (1993). Here, the record shows a current hearing disability- specifically, bilateral sensorineural hearing loss. See November 2009 audiological examination. However, the STRs are negative for complaints or treatment related to hearing loss, and the September 1967 discharge examination revealed hearing within normal limits. Further, at discharge, the Veteran denied that he had ever had any trouble with his ears, including hearing loss. Although the Veteran is competent to describe his in-service exposure to loud noises, see Charles v. Principi, 16 Vet. App. 370 (2002); Layno v. Brown, 6 Vet. App. 465, 469 (1994), the Board questions the credibility of the Veteran's statement regarding the onset of his hearing loss. Specifically, when the Veteran filed his claim in 2006, he stated that the onset of his hearing loss was in 1967; however, the evidence of record is silent for in-service evidence of hearing loss or post-service complaints of trouble hearing until 1991, over twenty years after discharge. Significantly, although in 2006, the Veteran described the onset of hearing trouble in 1967, in a Report of Medical History completed by the Veteran at discharge in 1967, he noted that he did not currently experience problems hearing, and had not had problems hearing in the past. This contemporaneous statement provided at discharge in 1967, contradicts the Veteran's 2006 statement regarding the onset of his hearing loss. The Board finds the 1967 statement more credible because it was not made in the context of a claim for monetary benefits, but was made in a medical setting where the Veteran was likely more intent on accurately reporting his ailments, if any. Additionally, the 1967 indication that he had not had hearing loss is consistent with the audiogram performed at that time and with the VA examiner's later assessment of the entire record. In terms of establishing a nexus to service, the November 2009 VA examiner opined that the Veteran's current hearing loss was not due to his military noise exposure because the Veteran's separation evaluation revealed normal hearing in both ears, and there was not a significant threshold shift for either ear at any frequency when comparing his enlistment and separation audiological evaluations. The examiner concluded that the Veteran's history of in-service noise exposure notwithstanding, his current hearing loss is not traceable to military service. Although in September 2002, Dr. B. opined that the Veteran's hearing loss was "probably mostly noise induced," this assessment was based on several different types of noise exposure, including post-service employment working construction, recreational noise exposure while target shooting and hunting, in addition to the Veteran's service in Vietnam. In addition, Dr. B. did not offer a rationale for the opinion. In this regard, the Board notes that in Nieves- Rodriguez v. Peake, supra, the Court found that a medical opinion which only contains data and conclusions, and is not supported by reasons or rationale is accorded no probative weight. See also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007), which held that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.") In this case, the Board finds that because the September 2002 medical opinion by Dr. B. contains only a conclusory opinion without any supporting data or medical explanation or analysis, it does not have the same probative value as the 2009 VA examiner's opinion. The November 2009 VA examiner provided a reasoned medical explanation for her opinion, supported by a review of the STRs. In summary, the STRs are devoid of treatment or complaints related to hearing loss, and at discharge in 1967, the Veteran noted that he did not have trouble hearing. Further, the first post-service indication of hearing complaints was not until July 1991, more than 20 years after discharge. Moreover, despite evidence of in-service noise exposure, the 2009 VA examiner opined that the Veteran's current bilateral hearing loss was not due to military service, explaining that there was not a significant threshold shift for either ear at any frequency when comparing his enlistment and separation audiological evaluations. For these reasons, the Board finds that the preponderance of the evidence is against the claim. It should also be noted that sensorineural hearing loss (organic disease of the nervous system) was not manifested to a compensable degree within a year of the Veteran's separation from service, as the first documented post-service evidence of hearing loss was not shown until over twenty years after service. A presumption of service incurrence consequently may not be made. 38 C.F.R. §§ 3.307, 3.309. ORDER Service connection for hearing loss is denied. REMAND The Veteran contends that he developed his current skin disability while serving in Vietnam in 1966. He noted that his condition has been intermittent over the last 40-year period and has been worse in the summer months. The Veteran stated that he treated himself with baby powder, noting that it decreased his itching and moisture. Although the Veteran's STRs are negative for any reference to a fungal condition of the groin, legs, feet, or ears, in March 1974, when the Veteran presented for treatment of a rash, he stated that he thought he got his rash while in Vietnam. Private reports reflect subsequent treatment for a fungal condition in March 1983, July 1983, May 1984, September 1989, and September 1999. These entries contained diagnoses of tinea cruris. A progress entry dated in February 2006, contained a diagnosis of dermatomycosis, and noted that the Veteran's groin itched and noted a probable fungal infection of the skin on the legs and groin. The Veteran was afforded a VA examination in November 2009. The Veteran described an intermittent skin condition occurring over the past 40 years, and stated that he treated himself with baby powder and cornstarch. The VA examiner was asked to opine whether the Veteran had a skin disability of the groin, feet, legs, and/or ears that could be attributed to service. However, the 2009 VA examiner stated that the Veteran had no active rash or residuals at the time of the examination, and opined that he could not resolve the issue of whether his skin condition was attributable to military service without resorting to mere speculation because the Veteran did not currently have a skin disability. In this case, the evidence shows that the Veteran has a recurrent, chronic skin condition, with documented flare-ups from 1983 through 1999, and as recently as 2006. Further, the Veteran has noted intermittent flare-ups for the past 40 years. Based on the evidence described above, and to afford the Veteran an adequate VA examination, the Board finds that a remand is necessary to obtain a VA examination during an active period of the Veteran's skin disability. At this examination, the examiner should offer an opinion as to whether the Veteran has a fungal condition of the groin, feet, legs, and/or ears that can be attributed to service. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all health care providers, VA and private, who may possess additional records pertinent to his claim. With any necessary authorization from the Veteran, the RO should attempt to obtain and associate with the claims file any medical records identified by the Veteran that have not been secured previously. 2. Arrange with the Veteran the scheduling of an examination of the skin during an active phase of his condition. After reviewing the claims file, examining the Veteran, and conducting any testing deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran has a fungal disorder of the groin, feet, legs, or ears that can be attributed to service. A complete rationale should be provided. If it is not feasible to schedule an examination during an active phase of the skin disorder, a VA physician should be asked to review the record, including any evidence obtained as a result of development sought in paragraph 1 above, and provide the requested opinion. (The Board recognizes that a certain level of conjecture is required in the forming of any medical opinion. The VA examiner/reviewer should be instructed to provide the opinion based on his or her expertise and best judgment even if speculation is required.) 3. After undertaking any other development deemed appropriate, adjudicate the claim of service connection for a fungal condition of the groin, legs, feet, and ears. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case (SSOC) and afford them an opportunity to respond before the record is returned to the Board for further review. 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2009). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs