Citation Nr: 1300571	
Decision Date: 01/08/13    Archive Date: 01/16/13

DOCKET NO.  10-00 191	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

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

2.  Entitlement to service connection for a bilateral foot disorder, including jungle rot of the feet, to include as secondary to service-connected diabetes mellitus, type 2.

3.  Entitlement to service connection for tumors (lipomas) of the mouth, neck, arms, and legs, to include as secondary to service-connected diabetes mellitus, type 2.


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


WITNESS AT HEARING ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

David Gratz, Counsel


INTRODUCTION

The Veteran served on active duty from December 1968 to March 1971.  He served in combat the Republic of Vietnam and his decorations include the Army Commendation Medal with "V" Device and Oak Leaf Cluster.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.

In October 2012, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge.  A transcript of the hearing has been associated with the claims file.

The issues of entitlement to service connection for a bilateral foot disorder, including jungle rot of the feet, and entitlement to service connection for tumors (lipomas) of the mouth, neck, arms, and legs, both to include as secondary to service-connected diabetes mellitus, type 2, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

Bilateral hearing loss had its onset in service.



CONCLUSION OF LAW

Bilateral sensorineural hearing loss was incurred in service.  38 U.S.C.A. §§ 1110, 1112, 1154(a), (b), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304(d), 3.307, 3.309, 3.385 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision, the Board grants service connection for bilateral sensorineural hearing loss, which represents a complete grant of the benefit sought on appeal.  As such, no discussion of VA's duty to notify and assist is necessary.

In his statements and testimony, the Veteran essentially maintains that service connection for bilateral hearing loss is warranted because he has had ongoing hearing difficulties since he was exposed to significant acoustic trauma during his combat service in Vietnam.  In June 2007, he informed his treating VA audiologist that he had been exposed to excessive noise exposure both during combat service in Vietnam, and occupationally as a construction worker after service.  In a VA Form 21-0781a dated July 2007, at his August 2008 VA examination, and at his October 2012 hearing before the undersigned, the Veteran specified that a 175 millimeter (mm) Howitzer was fired at him while he was sleeping at a fire support base in Vietnam in August 1969, and he could not hear for several days thereafter.  See transcript, p. 3.  The Veteran testified that he was a sniper in Vietnam, and that "the only thing we had for any kind of hearing protection [was that] we took cigarette butts and stuck them in our ears."  Id., p. 3.  The Veteran further testified that he has experienced hearing loss ever since Vietnam.  Id., p. 3.

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  The current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim.  McClain v. Nicholson, 21 Vet. App. 319 (2007).  The second and third elements of establishing service connection may be established by showing continuity of symptomatology.  Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) 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); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").

Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.  Savage v. Gober, 10 Vet. App. 488, 496 (1997).  Additionally, continuity of symptoms does not require that postservice symptoms be constant; it requires only the consistent post-service reoccurrence of the same symptoms experienced in service.  

Service connection may also be established when a chronic disease is shown in service. When a chronic disease is shown as such in service (or within the presumptive period under § 3.307) 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.  38 C.F.R. § 3.303(b).  For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  When the identity of a chronic disease in service is established, there is no requirement of evidentiary showing of continuity.  38 C.F.R. § 3.303(b).

In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) (West 2002) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable.  This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence.  If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service.  38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in the case of a combat Veteran not only is the combat injury presumed, but so is the disability that resulted during service from the in-service combat injury.  Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012).  To establish service connection, there must be the evidence of a current disability and a causal relationship between the current disability and the in-service combat injury.  Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on all things of which he has personal knowledge derived from his own senses); 38 C.F.R. § 3.159(a)(2).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77.

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).

As a finder of fact, when considering whether lay evidence is credible, the Board may properly consider the internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  Id. at 303-04.

The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See Id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").

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).  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 Court has held that service connection can be granted for hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service.  Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992).  The Court has also held that VA regulations do not preclude service connection for hearing loss which first met VA's definition of disability after service.  Hensley, supra, at 159.

The Board finds that the evidence supports an award of service connection for bilateral hearing loss.  First, the Veteran has current diagnoses of bilateral sensorineural hearing loss with audiometric thresholds which qualify as a hearing disability during the pendency of the claim-including in August 2008 and February 2010:

Aug. 2008


HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
70
90
95
LEFT
10
20
65
85
85




Feb. 2010


HERTZ



500
1000
2000
3000
4000
RIGHT
15
25
75
85
95
LEFT
15
30
85
90
95

Second, the Veteran's lay statements are sufficient proof of the occurrence of both the in-service acoustic trauma and the resulting in-service hearing loss, because the Veteran served in combat and the evidence is consistent with the circumstances, conditions, or hardships of such service.  See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d); see also Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012).

Third, a nexus between the in-service injury and hearing loss, and the present diagnosis of bilateral sensorineural hearing loss, has been established.  Specifically, the Veteran's treating VA audiologist opined in June 2007 that "Given [the Veteran's] exposure to excessive noise while in combat during the Vietnam War, it is at least as likely as not that [his] current hearing loss [is] due to his military service.  As such, [he] was encouraged to file a claim for service connection."

The Board acknowledges that some contrary evidence is of record, but finds that it is entitled to less probative weight than the evidence above.  Specifically, the August 2008 VA examiner opined that the Veteran's hearing loss is less likely than not related to service because he had normal hearing when tested about one month prior to discharge.  However, the VA examiner also stated that because the Veteran's testing was limited, "it is possible that there was a hearing loss [at other frequencies] which could have been due to military noise exposure."  The Board finds that the speculative nature of the August 2008 opinion renders it less probative than the June 2007 VA audiologist's opinion.  Where, as here, conflicting competent opinions are of record, the Board can ascribe greater probative weight to one opinion over another, provided that a rational basis is given.  Winsett v. West, 11 Vet. App. 420 (1998), aff'd 217 F.3d 854 (Fed. Cir. 1999).

Moreover, while continuity of symptomatology need not be considered here because it is not necessary for granting the Veteran's claim, the Board does note that the Veteran meets the elements thereof in his claim for service connection for bilateral sensorineural hearing loss.  First, his hearing loss is presumed to have developed in combat.  See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d); see also Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012).  Second, he has provided competent and credible lay evidence of post-service continuity of the same symptomatology, as demonstrated by his consistent statements to his June 2007 treating VA audiologist, in a VA Form 21-0781a dated July 2007, at his August 2008 VA examination, and at his October 2012 hearing before the undersigned.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on all things of which he has personal knowledge derived from his own senses); see also 38 C.F.R. § 3.159(a)(2); see also Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that, although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate; statements made to clinicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care).  Third, in addition to the aforementioned June 2007 treating VA audiologist's positive nexus opinion, the Veteran also provided lay testimony at his October 2012 hearing as evidence of a nexus between his present hearing loss and the post-service symptomatology.  See transcript, p. 3.

Based on the above, the Board finds that the evidence is at least in equipoise as to whether the Veteran's bilateral sensorineural hearing loss is related to service.  Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for bilateral sensorineural hearing loss.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.


ORDER

Service connection for bilateral sensorineural hearing loss is granted.



REMAND

Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claims so that he is afforded every possible consideration.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Specifically, a medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but: (A) Contains competent lay or medical evidence of a currently diagnosed disability or persistent or recurrent symptoms of disability; (B) Establishes that the Veteran suffered an event, injury or disease in service, or has a disease or symptoms of a disease listed in §§ 3.309, 3.313, 3.316, or 3.317 manifesting during an applicable presumptive period provided the claimant has the required service or triggering event to qualify for that presumption; and (C) Indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability.  38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006).

With respect to the Veteran's claimed bilateral foot disorder, including jungle rot, VA clinicians have diagnosed the Veteran with burning feet syndrome with numbness and tingling bilaterally, in May 2007; with onychomycosis and macerated webspaces bilaterally, in May 2007; and with onychomycosis and complaints of pain between the 4th and 5th toes of the right foot, in November 2009.  The in-service event and injury were established via the Veteran's October 2012 testimony that he began having problems with dryness and itchiness on the skin of his feet in Vietnam after spending days in the waters of swamps and rice paddies while wearing wet socks.  See transcript, p. 6.  The Veteran also attributed his jungle rot to his combat boots.  See October 2008 notice of disagreement, December 2009 substantive appeal.  The Board notes that the Veteran is competent to observe skin disorders such as boils, blotches, rash, soreness, and itching.  Additionally, because the VA clinician made the May 2007 diagnoses during the course of a diabetic feet consultation, the agency of original jurisdiction (AOJ) should also obtain a medical opinion as to the Veteran's claimed bilateral jungle rot of the feet as secondary to his service-connected diabetes mellitus, type 2.  Robinson v. Mansfield, 21 Vet. App. 545, 550-51 (2008); Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004) (when determining service connection, all theories of entitlement, direct and secondary, must be considered).

As to the Veteran's claimed tumors (lipomas) of the mouth, neck, arms and legs, VA clinicians have diagnosed him as having lipomas in April 2007 and July 2007.  A VA examiner conducting an examination of the Veteran's ischemic heart disease in May 2011 also diagnosed the Veteran with multiple skin tumors consistent with neurofibromatosis.  Additionally, he testified that although he is not a doctor, he believes that it is possible that some of his lipomas could be secondary to his service-connected diabetes mellitus, type 2.  See transcript, p. 9.  Alternatively, he asserts that his lipomas are related to his exposure to herbicides in service.  See October 2008 notice of disagreement, December 2009 substantive appeal.  Because there is no affirmative evidence to the contrary, the Veteran is presumed to have been exposed to herbicides during his Vietnam service.  38 C.F.R. § 3.307(a)(6)(iii).

The Veteran has not been provided with a VA examination in connection with these claims.  There is a low threshold when determining whether a VA medical examination is to be provided or medical opinion obtained, and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service.  The types of evidence which "indicate" that a current disability "may be associated" with military service include, but are not limited to, credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  Based on the evidence discussed above, the Board finds that an examination is required.

Also, as the appeal is being remanded for development, the RO should ask the Veteran to identify any additional, pertinent medical treatment that he has received, and take appropriate measures to obtain those records.  Any additional, pertinent VA treatment records should either be made accessible on Virtual VA or be printed and added to the file.  See 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history).

Accordingly, the case is REMANDED for the following action:

1.  The RO should contact the Veteran and ask that he identify any outstanding VA and non-VA records pertaining to his disabilities that are not already of record. Take appropriate measures to request copies of any outstanding records of pertinent VA or private medical treatment and associate them with the claims file.  The RO must make at least two requests to any custodian of private records in an effort to obtain such records, unless it is made evident by the first request that a second request would be futile in obtaining such records.  Any negative response should be in writing and associated with the claims file.

2.  Notify the Veteran that he may submit lay statements of the nature, onset and continuity of his bilateral foot and lipoma symptoms from himself as well as from other individuals who have first-hand knowledge of such symptoms, to include whether the onset of the symptoms was during combat in Vietnam.  He should be provided an appropriate amount of time to submit this lay evidence.

3.  After associating all outstanding records with the claims folder, schedule the Veteran for an appropriate examination(s) to determine the nature and etiology of his bilateral foot disorder and his tumors (lipomas) of the mouth, neck, arms, and legs.  The claims file should be reviewed by the examiner(s) and that review should be indicated in the examination report(s).  Any indicated tests should be accomplished.

The examiner is first asked to rule in or rule out a diagnosis of a skin disorder of the feet based on a physical examination, the Veteran's lay report as to his symptoms and their onset and a review of the Veteran's medical records dated since July 2007, and provide an explanation for all conclusions.  Then, provide an opinion as to whether it is at least as likely as not that any currently diagnosed skin disorder of the feet (to include jungle rot, burning feet syndrome, onychomycosis and macerated webspaces) had its onset during service or is otherwise causally related to service.

The examiner is also asked to provide an opinion as to whether it is at least as likely as not that the Veteran has a skin disorder of the feet that was either (a) caused by, or (b) aggravated (i.e., permanently worsened beyond the natural progress of the disorder) by his service-connected diabetes mellitus, type 2.

In offering these assessments, the examiner(s) must acknowledge and discuss the Veteran's competent lay report regarding a continuity of bilateral foot symptoms since service.

The examiner is then asked to rule in or rule out a diagnosis of tumors (lipomas) of the mouth, neck, arms, and legs, including neurofibromatosis, and provide an explanation for all conclusions.  Then, provide an opinion as to whether it is at least as likely as not that any currently diagnosed tumors (lipomas) of the mouth, neck, arms, and legs, including neurofibromatosis, had its onset during service or is otherwise causally related to service-including as a result of exposure to herbicides in Vietnam.

The examiner is also asked to provide an opinion as to whether it is at least as likely as not that the Veteran has tumors (lipomas) of the mouth, neck, arms, and legs, including neurofibromatosis, that were either (a) caused by, or (b) aggravated (i.e., permanently worsened beyond the natural progress of the disorder) by his service-connected diabetes mellitus, type 2.

An examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement.  See Jones v. Shinseki, 23 Vet. App. 382 (2010).  As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge.

4.  Then readjudicate the appeal.  If any benefit sought remains denied, the Veteran should be issued a supplemental statement of the case (SSOC) that addresses actions taken since the issuance of the last SSOC, and given the opportunity to respond.  The case should then be returned to the Board, if in order.

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).



______________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs