Citation Nr: 1237297	
Decision Date: 10/31/12    Archive Date: 11/09/12

DOCKET NO.  09-03 450	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Nashville, Tennessee



THE ISSUES

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

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to an initial rating in excess of 20 percent for the service-connected residuals of prostate cancer with urinary incontinence.

4.  Entitlement to service connection for degenerative joint disease of the right knee.

5.  Entitlement to service connection for degenerative joint disease of the left knee.

6.  Entitlement to service connection for peripheral neuropathy of the right lower extremity.

7.  Entitlement to service connection for peripheral neuropathy of the left lower extremity.

8.  Entitlement to service connection for a disability manifested by a limitation of motion of the hips, ankles and feet.

9.  Entitlement to a total disability rating based on individual unemployability (TDIU) by reason of service-connected disability.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

M. Mills, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1967 to September 1969.

These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2008 by the RO.

A review of the Virtual VA paperless claims processing system shows that, in an April 2010 rating decision, the RO increased the evaluation for service-connected fecal incontinence to 60 percent, effective on March 31, 2010.

The issues of service connection for degenerative joint disease of the knees; peripheral neuropathy of the lower extremities; and a disability manifested by limitation of motion of the hips, ankles and feet and the claims for an increased rating for the service-connected residuals of prostate cancer with urinary incontinence and a TDIU rating are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The currently demonstrated bilateral hearing loss disability is shown as likely as not to be due to the Veteran's documented exposure to harmful noise levels in connection with duties in the artillery while serving in the Republic of Vietnam.

2.  The currently demonstrated tinnitus is shown as likely as not to be due to the Veteran's documented exposure to harmful noise levels in connection with duties in the artillery while serving in the Republic of Vietnam.


CONCLUSIONS OF LAW

1.  By extending the benefit of the doubt to the Veteran, his bilateral hearing loss disability is due to disease or injury that was incurred in active service.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§3.102, 3.303, 3.385 (2011).

2.  By extending the benefit of the doubt to the Veteran, his disability manifested by tinnitus is due to disease or injury that was incurred in active service.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2011).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Notify and Assist

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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

Proper 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 seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1).

The February 2008 VCAA letter explained the evidence necessary to substantiate the claims for service connection.  This letter also informed the Veteran of his and VA's respective duties for obtaining evidence.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

In addition, the VCAA notice letter from VA was provided prior to initial adjudication of the Veteran's claims and explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of his claims.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The RO obtained all relevant medical and other records that he identified.  He was also examined for VA compensation purposes in June 2008.  

This examination report and medical evidence on file contain the information needed to grant service connection for bilateral hearing loss and tinnitus.  38 C.F.R. §§ 3.327, 4.2.  See also Caffrey v. Brown, 6 Vet. App. 377 (1994).  

.

II.  Legal Criteria

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131.  With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.

For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these 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 (2011).

However, the absence of in-service evidence of hearing loss is not fatal to the claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  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).

Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Generally, in order to prevail on the merits on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances lay, evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999).

The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Service connection may also be established by chronicity and continuity of symptomatology.  See 38 C.F.R. § 3.303(b).  Continuity of symptomatology may establish service connection if a claimant can demonstrate that (1) a condition was "noted" during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 495-96 (1997)). "[S]ymptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Savage, 10 Vet. App. at 496.  

The requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even in cases where the disability resolves prior to the Secretary's adjudication of the claim.  McClain v. Nicholson, 21 Vet. App. 319, 321-323 (2007)

Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107 (West 2002).  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102.

When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).


III.  Analysis 

Here, the Veteran asserts that his bilateral hearing loss and tinnitus are the result of harmful noise exposure during his period of active duty including while serving in the Republic of Vietnam.  

Specifically, the Veteran reported developing a hearing loss after a 155mm Howitzer fired and caused his ears to bleed and required hospitalization. 

On a September 1967 enlistment audiogram, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
10
15
30
25
LEFT
5
15
15
40
45

See 38 C.F.R. § 3.385 (defining hearing loss disability); Hensley v. Brown, 5 Vet. App. 155 (1993) (citing to medical texts for medical definition of hearing loss, as contrasted with VA regulations defining hearing loss disability).

A service treatment record dated in April 1968 indicated the Veteran reported that his ear ached and that he had decreased hearing following contact with a 155mm Howitzer sufficient to warrant evacuation from the field.  He was diagnosed with mild inflammation of the external canal.  

A November 1968 service treatment record indicated the Veteran reported having decreased acuity in the left ear.  On audiological testing, pure tone thresholds, in decibels, were as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
30
25
20
N/A
60
LEFT
60
65
65
N/A
80

On a June 1969 separation examination, the audiological evaluation revealed pure tone thresholds, in decibels, were as follows:




HERTZ



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

An August 2006 VA treatment note reported a diagnosis of hearing loss with a history of nerve damage.  

At a VA examination on September 2006, an audiology clinician opined that, based on the Veteran's reported history of in-service noise exposure and the type of configuration of hearing loss, it was at least as likely as not that the hearing loss and tinnitus might be related to service.

On the authorized VA audiological evaluation in June 2008, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
55
60
75
90
90
LEFT
45
70
70
80
75

Speech audiometry testing revealed a speech recognition ability of 24 percent in the right ear and 54 percent in the left ear.

As to the etiology of the hearing loss, the June 2008VA examiner noted that he had reviewed the Veteran's service treatment records and attempted to reconcile conflicting medical evidence between the Veteran's service entrance and service exit audiology evaluations.  

The examiner stated the Veteran had significant noise exposure in the service as an artillery crewman and appeared to suffer some trauma to his ears, more so to the left ear, following an encounter with a 155mm Howitzer.  The exit examination indicated normal hearing sensitivity, bilaterally.  

The VA examiner noted that, as the Veteran's hearing upon discharge was better than at entrance, one of the two tests was inaccurate.  The examiner opined if the entrance examination is inaccurate then it would be less likely as not that the hearing loss was aggravated by military service; however, if the exit examination is inaccurate then it might be as least as likely as not.  

The examiner reasoned that in reviewing these conflicting results, and given the absence of any other prior or subsequent test that were closer in time to the service period, that he could not accurately resolve the issue without resorting to speculation.  The Veteran did not report a history of current tinnitus to the examiner.

The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence."  See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).  However, the Court has held that the Board may not reject medical opinions based on its own medical judgment.  See Obert v. Brown, 5 Vet. App. 30 (1993).

After considering the entire record, the Board finds the evidence to be in relative equipoise in showing that the current hearing loss disability and tinnitus as likely as not are due to the Veteran's exposure to increased and hazardous noise levels during his service in artillery, including under the conditions of combat in the Republic of Vietnam.  

In resolving all reasonable doubt in the Veteran's favor, service connection for bilateral hearing loss disability and tinnitus is warranted.


ORDER

Service connection for bilateral hearing loss disability is granted.

Service connection for tinnitus is granted.  


REMAND

A remand for further development of the evidence is required before the matters remaining on appeal are ready for final adjudication by the Board.  The law provides that the VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence.  38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159.  

Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim, and obtaining relevant Social Security Administration (SSA) records and relevant records of in-service hospitalization.  38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159.

The Veteran reports that he began to receive SSA benefits disability due to his service-connected disabilities in June 1992.  However, records and evidence pertaining to SSA adjudication are not of record.  

The SSA records are likely to contain evidence pertinent to his claim for an increased rating for residuals of prostate cancer and his pending claims for service connection.  VA has a duty to obtain potentially relevant SSA records when it has actual notice that the Veteran is receiving SSA benefits.  See Golz v. Shinseki, 530 F.3d 1317 (Fed. Cir. 2010) 

In a January 2008 written statement, the Veteran reported being hospitalized for two weeks during his service in the Republic of Vietnam following a combat explosion and injury to his legs.  The claims file does not contain records of this hospitalization.   

Under 38 U.S.C.A. § 5103A (West 2002), VA's duty to assist the Veteran in the development of his claim includes providing a claimant a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim.  

With respect to the claim for a TDIU rating, the Veteran contends that he is unemployable due to his service-connected disabilities.   

VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities.  38 C.F.R. §§ 3.340, 3.341, 4.16 (2011).

A total rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16(a).  If the schedular criteria are not met, in certain cases an extraschedular TDIU may be considered.  See 38 C.F.R. § 4.16(b).  

The record in this case shows that the Veteran was service-connected for residuals of prostate cancer with urinary incontinence (20 percent), from January 11, 2008; coronary artery disease (10 percent), for the period from January 11, 2008; and fecal incontinence (30 percent), for the period from August 28, 2008; for a combined disability rating of 50 percent, effective August 28, 2008.

In March 2010, the RO most recently assigned a rating of 60 percent rating for the service-connected fecal incontinence (60 percent), for the period beginning on March 31, 2010.

To the extent that the claim for a TDIU rating is closely related to the other issue remaining on appeal, further consideration of the claim must be deferred pending completion of the requested development.  

Accordingly, these remaining matters are REMANDED to the RO for the following action:

1.  The RO should take all indicated action in to contact the Social Security Administration (SSA) in order to obtain and associate with the claims file copies of the Veteran's records regarding his receipt of SSA benefits, including any SSA administrative decisions (favorable or unfavorable) and the medical records upon which the decisions were based.  

2.  The RO then should take steps to have the Veteran scheduled for a VA examinations in order to determine the nature and likely etiology of the claimed degenerative joint disease of the knees, peripheral neuropathy of the lower extremities and claimed hip, ankle and foot disorders.

The claims folder should be made available to the examiners for review.  The records reviewed should include the service treatment records and the relevant post-service records of treatment.  All indicated testing should be undertaken.

The examiners in this regard should elicit from the Veteran and record a complete medical history referable to the claimed conditions.

In particular, the VA examiners should address the Veteran's lay assertions that his symptoms of peripheral neuropathy are due to his period of service rather than secondary to alcohol abuse.  See March 1992 VA medical center discharge summary.

After examining the Veteran and reviewing the entire record, the appropriate VA examiner should offer an opinion as to whether it is at least as likely as not that any current disability manifested by degenerative joint disease of the knees, peripheral neuropathy of the lower extremities or limitation of motion of either hip, ankle and foot are due to a disease or injury of the Veteran's period of active duty, including in the Republic of Vietnam.  

3.  After completing all indicated development, the RO should readjudicate the claims remaining on appeal in light of all the evidence of record.  If any benefit sought on appeal remains denied, the Veteran and his representative should be furnish a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. 

Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition.  

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 Supp. 2011).



______________________________________________
STEPHEN L. WILKINS
Veterans Law Judge
Board of Veterans' Appeals


Department of Veterans Affairs