Citation Nr: 1300274	
Decision Date: 01/04/13    Archive Date: 01/11/13

DOCKET NO.  09-50 813	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for bilateral glaucoma.


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. Davitian, Counsel


INTRODUCTION

The Veteran served on active duty from July 1945 to December 1946.

This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which denied the benefits sought on appeal.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The issue of entitlement to service connection for bilateral glaucoma is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

The competent medical, or competent and credible lay, evidence of record demonstrates that the Veteran's bilateral hearing loss is related to active duty.  


CONCLUSION OF LAW

Bilateral hearing loss was incurred during active service.  38 U.S.C.A. §§ 1110, 1112, 1131, 1133, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2011).





REASONS AND BASES FOR FINDING AND CONCLUSION

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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) (2012).  In this case, the Board is granting in full the benefit sought on appeal.  Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed.  

A veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service.  See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

If there is no evidence of a chronic condition during service, or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim.  See 38 C.F.R. § 3.303(b).  Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent.  See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997).

In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a).

Certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  The determination of whether a veteran has a service-connectable hearing loss is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a "disability" when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent.  38 C.F.R. § 3.385 (2012). 

The Board points out that the absence of in-service evidence of hearing loss, including one meeting the requirements of 38 C.F.R. § 3.385, is not always fatal to a service connection claim.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Hensley also provides that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a medical relationship between a Veteran's in-service exposure to loud noise and his current disability.  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.  38 U.S.C.A. § 5107(b).

Based on a thorough review of the record, the Board finds that the evidence supports the Veteran's claim.  

The report of a VA audiological examination conducted in October 2009 provides pure tone thresholds that constitute hearing loss disability for VA purposes.  38 C.F.R. § 3.385.  

During an October 2012 hearing before the undersigned Veterans Law Judge, the Veteran testified as to inservice noise exposure.  This included a particularly close explosion during basic training.  He testified that he went to first aid on bivouac and was simply told his hearing would get better.  He testified that thereafter he had intermittent hearing problems that deteriorated over the years.  

The Board finds that this incident is consistent with the places, types, and circumstances of the Veteran's service.  38 U.S.C.A. § 1154(a).  

Further, the Veteran is competent to testify that his observable symptoms began during service and have continued to the present.  See Falzone v. Brown, 8 Vet. App. 398, 405 (1995).  The Board finds him to be credible in this regard.  The Board finds it significant that the Veteran's service treatment records do not include a report of separation medical examination.  As a result, there is no evidence that the Veteran did not report current or past hearing loss at separation.  

In July 2008 the Veteran submitted two lay statements in support of his claim.  In one statement, the Veteran's teacher stated that she had known him his entire life.  She stated that prior to active duty, the Veteran had normal hearing.  When he came home after active duty, there was a noticeable difference in his hearing.  One had to constantly repeat information and speak louder to him.  As years progressed, the Veteran's hearing continued to decline.  

In another letter, a second witness stated that she had known the Veteran for most of his life.  She noted in essence that after active duty the Veteran had a hearing problem.  

Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  Additionally, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Further, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

Thus, in this case, the Board finds that the testimony from the Veteran and his two lay witnesses is competent and credible lay evidence that his current bilateral hearing loss began during active duty, and has existed since that time.  

The Board finds that there is no probative evidence to the contrary.  

In so concluding, the Board is aware that the October 2009 VA examiner relates that the Veteran's hearing at entrance was 15/15 bilaterally, and at separation was 15/15 WV [whispered voice] bilaterally.  She provides the opinion that it was not possible for her to state the etiology of the Veteran's hearing loss without resort to mere speculation.  She cited the VA Handbook of Standard Procedures and Best Practices for Audiology  - Compensation and Pension Examinations for the proposition that "whispered voice tests are insensitive to high frequency hearing loss, the type of hearing loss most commonly caused by noise exposure, and are not reliable evidence of normal hearing or hearing impairment."  

The Board finds that this opinion neither supports nor weighs against the Veteran's claim.  The rationale behind it, however, does tend to support the Veteran's claim.  The rationale shows that the Veteran's audiological findings at separation do not constitute evidence of normal hearing at separation, and do not contradict his testimony that he had hearing loss at that time.  In this regard, the Board again notes that as the Veteran's service treatment records do not include a report of separation medical examination, there is no evidence that the Veteran did not report current or past hearing loss at separation.  

In addition, VA Training Letter 10-02, issued in March 2010 regarding the adjudication of claims for hearing loss, provides that "whispered voice tests are notoriously subjective, inaccurate, and insensitive to the types of hearing loss most commonly associated with noise exposure."  VBA Training Letter 211D (10-02) (March 18, 2010).  In that letter, the Director of the VA C&P Service stated that "whispered voice tests... cannot be considered as reliable evidence that hearing loss did or did not occur."  Id.  

In light of the foregoing, service connection for bilateral hearing loss is warranted.  


ORDER

Service connection for bilateral hearing loss is granted.


REMAND

The Veteran's claim for service connection for bilateral glaucoma requires additional development.  

The Veteran has testified that the particularly close explosion during basic training described above also caused chemicals and dirty water from a cesspool to get into his eyes.  He has testified that he went to first aid on bivouac, where his eyes were washed out.  

As noted above, the Board finds that this incident is consistent with the places, types, and circumstances of the Veteran's service.  38 U.S.C.A. § 1154(a).  In addition, the Veteran is competent to testify as to observable symptoms such as getting foreign matters into his eyes.  See Falzone, supra.  The Board finds him to be credible in this regard.  As noted above, the Veteran's service treatment records do not include a report of separation medical examination, and thus there is no evidence that the Veteran did not report current or past vision or eye problems at separation.  

A July 2008 letter from the Veteran's private medical doctor notes that this eye care practice had treated the Veteran since November 1994.  The Veteran had a pertinent diagnosis of primary open angle glaucoma in both eyes.  The private medical doctor noted that the Veteran had a history of head and or eye trauma many years ago and that glaucoma can be a long-term complication of eye trauma.  However, this was impossible to predict.  

Since this medical evidence raises the possibility that the Veteran's current glaucoma is related to active duty, the Board finds that a remand is necessary in order for the RO to obtain a VA medical opinion.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  Schedule the Veteran for an examination by an appropriate VA examiner to determine the nature, extent and etiology of any glaucoma that may be present.  The claims file must be made available to the examiner.

Following a review of the relevant medical evidence in the claims file, the medical history (including that set forth above), and the results of the clinical evaluation and any tests that are deemed necessary, the examiner is asked to opine whether it is at least as likely as not (50 percent or more likelihood) that any current glaucoma is causally related to an explosion during basic training that caused chemicals and dirty water from a cesspool to get into the Veteran's eyes.  

The examiner is specifically requested to address the July 2008 letter from the Veteran's private medical doctor, described above.  

The examiner is requested to provide a rationale for any opinion expressed.  

2.  Then, readjudicate the Veteran's claim.  If the benefit sought on appeal remains denied, the appellant and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond.  The case should be returned to the Board for appellate review.

The appellant has the right to submit additional evidence and argument on the matter or 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. 2012).



______________________________________________
ROBERT E. SULLIVAN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs