Citation Nr: 1300476 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 07-10 289 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Biswajit Chatterjee, Counsel INTRODUCTION The Veteran served on active duty from September 1956 to September 1960. This appeal to the Board of Veterans' Appeals (Board) is from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Veteran then testified at a formal Decision Review Officer hearing at the RO in May 2007. A transcript of the hearing is associated with the claims file. The issue of entitlement to service connection for a low back disability 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 Resolving any doubt in the Veteran's favor, his bilateral sensorineural hearing loss is causally related to in-service noise exposure as a jet engine mechanic. CONCLUSION OF LAW Bilateral sensorineural hearing loss was incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board's decision to grant the Veteran's claim of entitlement to service connection for bilateral hearing loss is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act (VCAA) and the implementing regulations. The Veteran contends he was exposed to loud jet engine noise from C130 aircraft, while working as a jet engine mechanic during active duty service in the U.S. Air Force. He, his family and friends also assert a progressively worse history of hearing loss since service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in- service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. Some chronic diseases are presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.307(a)(3); see 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a) (listing applicable chronic diseases, including other organic diseases of the nervous system, such as sensorineural hearing loss). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Turning to the merits of the claim, the Veteran has a current diagnosis of bilateral sensorineural hearing loss under VA regulations. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. The October 2006 and January 2011 VA compensation audiological examination reports show auditory thresholds consistent with VA's regulatory definition of hearing loss in both ears. 38 C.F.R. § 3.385; Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). As for the second requirement for service connection, that of a disease or injury was incurred or aggravated during service, the Board acknowledges that a review of his available service treatment records is unremarkable for treatment or diagnosis of hearing loss disability. For instance, he showed whispered voice test results of 15/15 bilaterally at both his September 1956 enlistment examination and August 1960 discharge examination report. Audiometric testing at the August 1960 examination also revealed the following hearing acuity levels at separation. (Prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association ("ASA"). Since November 1, 1967, those standards have been set by the International Standards Organization - American National Standards Institute ("ISO-ANSI"). The figures noted parenthetically in the following table have been converted for comparison purposes). HERTZ 500 1000 2000 3000 4000 RIGHT 0(15) 0(10) 5(15) 0(10) 0(5) LEFT 0 (15) 0(10) 5(15) 5(15) 5(10) For service connection, it is not required that a hearing loss disability by the standards of 38 C.F.R. § 3.385 be demonstrated during service, although a hearing loss disability by the standards of 38 C.F.R. § 3.385 must be currently present, and service connection is possible if such current hearing loss disability can be adequately linked to service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Importantly, service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting regulatory requirements for hearing loss disability for VA purposes (i.e., 38 C.F.R. § 3.385), and a medically sound basis upon which to attribute the post-service findings to the injury in service, as opposed to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In this case, his DD Form 214 shows a military occupational specialty of aircraft equipment repairman during service in the U.S. Air Force, from September 1956 to September 1960. This confirms his accounts of duties as a jet engine mechanic that would place him in potential exposure to jet engine noise. The Veteran is competent to state he had in-service noise exposure, since it is within the realm of lay experience and observation. See generally Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board further finds the Veteran's assertions of in-service acoustic trauma to be credible, in light of his documented duties, and thus probative. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, there is conflicting medical nexus evidence that both supports and negates the possibility of an etiological link from his current hearing loss to service, particularly as due to his in-service acoustic trauma. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."). The Board acknowledges that VA examiners successively provided negative medical opinions in October 2006, August 2007, September 2008, and on remand by the Board, again in January 2011. These opinions all found against the notion that his current bilateral hearing loss is causally related to service, but were also based upon improper findings and lack of consideration of all the evidence of record. First, these examiners repeatedly based their negative conclusions upon the improper finding that the Veteran did not have a hearing loss disability by separation. The examiners referred to the in-service audiometric examination at separation exam in August 1960, which showed normal hearing acuity in both ears. For instance, the January 2011 VA examiner found that the Veteran's "[d]ischarge exam shows normal hearing bilaterally by VA standards..." The examiner then opined that "[g]iven normal hearing bilaterally and no significant shift in thresholds from induction to discharge, in my opinion, hearing impairment is less likely as not (less than 50/50 probability) caused by or a result of military noise exposure." As mentioned, though, in Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992), the United States Court of Appeals for Veterans Claims (Court) held that hearing loss disability by the standards of 38 C.F.R. § 3.385 is not required during service, only currently. In fact, the laws and regulations do not specifically require complaints of, or treatment for, hearing loss during service in order to establish service connection. Id. See also Hensley v. Brown, 5 Vet. App. 155 (1993) (where the Court held that, even though disabling hearing loss may not be demonstrated at separation, a Veteran may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service). Moreover, it appears that these examiners' negative opinions failed to consider the competent statements by the Veteran, family members and friends, of in-service acoustic trauma and subsequent continuity of hearing loss symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2). To emphasize, in providing the above negative medical opinions, the examiners collectively appeared to rely largely on the absence of documented medical treatment or clinical indication of hearing loss, both during service and for many years in the post-service treatment records. As such, these medical opinions violate the principles of Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Under Buchanan, the mere absence of documented treatment for pain during service and since, such as would be reflected in treatment records, cannot be the sole basis for concluding the Veteran has not continuously experienced these symptoms, as he is alleging, although this is evidence to be considered in making this ultimate determination. See Buchanan, 451 F.3d 1331 (Fed. Cir. 2006). Further, in Dalton v. Nicholson, 21 Vet. App. 23 (2007), the Court found an examination like this inadequate where, as here, the examiner did not comment on the Veteran's report of relevant injury in service and, instead, relied on the absence of evidence in his service treatment records to provide a negative opinion. These improper bases for the VA examiners' negative opinions are all the more problematic, because the Veteran's full set of original service treatment records (STRs) were damaged in a fire and therefore are not available for consideration. In this regard, the NPRC provided a negative response to VA's request for the Veteran's service treatment records, stating such records were fire-related. Indeed, the VA examiners' negative medical opinions did not give due consideration to the Veteran's competent account of acoustic trauma (injury to the ears) or to hearing loss symptomatology since service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (expressly rejected the view that "competent medical evidence is required...[when] the determinative issue involves either medical etiology or a medical diagnosis."). The Board concludes that the conclusions and rationales for the negative medical opinions by October 2006, August 2007, September 2008, and January 2011 VA examiners were all inadequate for resolving the claim, and accorded no probative value against the claim. Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In contrast, there is also positive medical opinion evidence from a treating audiologist, indicating that the Veteran's bilateral hearing loss is attributable to in-service noise exposure. A July 2007 statement from audiologist, G.D., recorded the Veteran's complaints of acoustic trauma as an aircraft equipment repairmen and indicated that the Veteran's current bilateral sensorineural hearing loss could be related to in-service noise exposure. However, the rationale of this positive opinion appears to be partially based on the notion that the Veteran did not actually receive audiometric testing at discharge; but, this purported fact is inaccurate, given the documented puretone threshold values provided on the separation examination report, listed above. This lessens the probative value of this positive opinion. In addition, this is an equivocal finding, further diminishing its probative value. See Obert v. Brown, 5 Vet. App. 30 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus). Nonetheless, the probative value of this positive opinion is advanced due to the Veteran's competent and credible history of continuity of symptomatology of hearing loss symptoms since service. Statements from the Veteran, his family and friends assert that he has been experiencing persistent hearing loss in his ears since onset in service, which they are competent to state, since also observable by laypersons. See Jandreau, 492 F.3d at 1377, and 38 C.F.R. § 3.159(a)(2). Especially in the absence of any contravening evidence and in light of corroborating statements by friends and family, the Board finds the Veteran has credibly testified to continuity of hearing loss symptoms since service. See Buchanan, 451 F.3d at 1331. The Board further notes that the Veteran is already service-connected for tinnitus due to the same source of in-service acoustic trauma, suggesting that such noise exposure negatively affected the Veteran's ability to hear. In any event, the evidence is, at a minimum, at least in equipoise. 38 U.S.C.A. § 5107 ; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board resolves doubt in the Veteran's favor and finds that the evidence supports the Veteran's claim of entitlement to service connection for bilateral hearing loss. ORDER Service connection for bilateral sensorineural hearing loss is granted. REMAND Unfortunately, a remand is required for the remaining claim for service connection for a low back disability. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(c), (d) (2012). The Veteran contends that he injured his lower back during mechanic school, while carrying 100 pound sacks of potatoes. See May 2006 claim (VA Form 21-526). As an initial matter, the Board notes that some of the Veteran's service treatment records from active military service cannot be obtained and are assumed to be either lost or destroyed. In this regard, the NPRC stated that the Veteran's STRs were fire-related. The Board is mindful that, in a case such as this, where some or all of the Veteran's service records are unavailable, VA has a heightened obligation to assist the Veteran in the development of his claim. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The Board acknowledges the Veteran presently has a low back disability. Taking into account his complaints of low back pain and stiffness, his private treating physician, Dr. N.S., diagnosed him with lumbar spine sprain/strain. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Also, there is some evidence of in-service incurrence of a lumbar spine injury. A review of the Veteran's service treatment records shows that in January 1958, he complained of a backache, described as a dull ache, on the left side over the lumbar area, which had lasted for several months. Physical examination was negative, as was X-ray testing. Still, he was assigned to light duty for one week in February 1958. Then, he again complained of lumbar spine in March 1958. Remaining service treatment records, including the August 1960 separation examination report, were unremarkable for further complaints, treatment or diagnosis of any low back disability. The Board finds his account of in-service injury to the lower back to be uncontradicted and consistent with the circumstances of his service, in light of service treatment records showing some low back problems in 1958, and thus, credible. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, there is conflicting medical opinion evidence on whether the Veteran's current low back disability is causally related to service. Here, there is negative medical opinion evidence against the claim, such that the June 2007 VA examiner opined a "back condition is not caused by or a result of military service." The examiner reasoned that the Veteran had an episode of back pain while in military service in 1958, but that the first discharge spine examination in 1960 was normal. The examiner further reasoned that the first documented treatment for a back condition after discharge was in 1987. This opinion is inadequate for several reasons. Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). First, it relies upon the fact that the first documented back treatment was in 1987, whereas other documentation of record clearly lists dates of chiropractic treatment for his low back beginning in October 1961, shortly after service. Second, this examiner did not explain why he did not assign a diagnosis for the Veteran's claimed low back disability, despite records that indicate a recent diagnosis of lumbar sprain/strain by a private treating physician. Third and most importantly, in providing the above negative medical opinion and rationale, the examiner appeared to rely largely on the absence of documented medical treatment, both during the latter part of service and also for many years in the post-service treatment records. This medical opinion appears to violate the principles of Buchanan, 451 F.3d at 1331. The physician did not give due consideration to the Veteran's competent account of low back pain symptomatology since service. See Davidson, 581 F.3d at 1316; see also Jandreau, 492 F.3d at 1377. Ultimately, the examiner provided narrow medical findings and did not account for, and/or consider, the pertinent lay evidence of record. Nieves- Rodriguez, 22 Vet. App. at 304; Stefl, 21 Vet. App. at 124. In contrast, there is also positive medical opinion evidence. His treating chiropractor, Dr. N.R.S., in a July 2007 letter, stated that he had treated the Veteran since shortly after his discharge from service, for back pain that began from an injury while in the Air Force. Dr. N.R.S. provided an opinion in support of the claim, stating, "[t]here is no question in my mind that he suffered an injury in the service and it is worsening with age." However, it is not clear whether Dr. N.R.S. has attributed any diagnosed, current low back disability (especially lumbar sprain/strain) to his alleged in-service back injury, so this positive opinion is somewhat inadequate. Nieves- Rodriguez, 22 Vet. App. at 304; Stefl, 21 Vet. App. at 124. It is necessary for the AOJ to arrange for another VA examination and medical etiological opinion to properly consider his lay statements concerning an in-service low back injury and continuity of low back pain since that alleged injury. Because the June 2007 VA examiner did not clearly identify whether the Veteran had any diagnosable, current low back disability and since approximately 51/2 years have passed since then, the Board finds a remand is necessary for a VA examination and opinion to reassess both the nature and cause of the Veteran's claimed low back injury. See McLendon v. Nicholson, 20 Vet. App. 79 (2006), citing 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination in order to determine the nature and etiology of his claimed low back disability. It is imperative that the claims file be made available to the examiner and reviewed in connection with the examination. Any medically indicated special tests should be accomplished, and all special tests and clinical findings should be clearly reported. The examiner should elicit from the Veteran a complete history of his complaints of a low back disability, including any medical treatment, and note that, in addition to the medical evidence, the Veteran's lay history has been considered. The examiner should respond to the following: a) Please identify any currently diagnosed low back disability of the lumbar spine. b) Assuming the Veteran injured his lumbar spine in service as alleged, is it at least as likely as not (a 50% or higher degree of probability) that any currently diagnosed lumbar spine disability had its clinical onset during the Veteran's period of service, or is any such disability otherwise related to such period of service? For the purposes of this opinion, the examiner should presume that the Veteran has credibly asserted an in-service injury of the low back during service, from carrying heavy sacks of potatoes. For purposes of the examination and opinion mentioned above, the examiner must consider that the Veteran has asserted post-service continuity of symptoms (e.g., low back pain and stiffness, etc.). Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 2. Then readjudicate the claim in light of any additional evidence. If this claim is not granted to the Veteran's satisfaction, send him a Supplemental SOC (SSOC) and give him an opportunity to respond to it before returning the file to the Board for further appellate consideration of this claim. 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 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). ______________________________________________ M. C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs