Citation Nr: 1301920	
Decision Date: 01/17/13    Archive Date: 01/23/13

DOCKET NO.  10-15 608	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service connection for chronic sinusitis.


REPRESENTATION

Veteran represented by:	Military Order of the Purple Heart of the U.S.A.


WITNESS AT HEARING ON APPEAL

Veteran



ATTORNEY FOR THE BOARD

C. Bruce, Counsel


INTRODUCTION

The Veteran served on active duty from January 1953 to December 1954.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present 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).


FINDINGS OF FACT

1.  The Veteran is competent and credible to report the circumstances of his service and his symptoms.

2.  The report of March 2011 private audiological consultation is competent evidence that the Veteran has bilateral hearing loss and tinnitus as the result of his active duty service.

3.  The currently demonstrated bilateral hearing loss disability is shown as likely as not to be related to the Veteran's in-service exposure to excessive and harmful noise in connection with his duties.

4.  The currently demonstrated tinnitus is shown as likely as not to be related to the Veteran's in-service exposure to excessive and harmful noise in connection with his duties.


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. §§ 1101, 1110, 1134(a), 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012).

2.  By extending the benefit of the doubt to the Veteran, his tinnitus is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1134(a), 5107 (West 2002); 38 C.F.R. §§ 3.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet.App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet.App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.

The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 
The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet.App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

(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); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). 

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet.App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet.App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet.App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet.App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet.App. 456 (2007) (concerning rheumatic fever). 
Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"); Caluza v. Brown, 7 Vet.App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). 

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 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).

Duties to Assist and Notify

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) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his 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 Veteran 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. See 38 C.F.R. § 3.159(b)(1).

A November 2008 pre-adjudication letter explained the evidence necessary to substantiate a claim for service connection. The letter also notified him 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, 490-491 (2006). This letter was provided to the Veteran prior to the initial adjudication of his claim, pursuant to Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In October 2008, VA requested the Veteran's service treatment and service personnel records from the National Personnel Records Center (NPRC). The Veteran was notified that his service treatment and service personnel records may have been destroyed in a fire in a December 2008 letter from the RO. In December 2008, NPRC informed VA that no medical records were on file at NPRC and the records were "fire related." Additional attempts to obtain the requested records would be futile. Accordingly, no further attempts by VA to obtain the service treatment records are warranted. See 38 U.S.C.A. § 5103A(b)(3).

In a February 2009 letter the Veteran was again asked to provide any available records as well as information to assist the RO in locating necessary records. See Dixon v. Derwinski, 3 Vet. App. 261 (1992) (holding that, when a claimant's service treatment records have been destroyed or lost, the Board is under a duty to advise the claimant to obtain other forms of evidence, such as lay testimony or other documents created while he was in service, to support his claim). He did not supply any evidence or information by which VA could assist in obtaining additional evidence.

The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. Therefore, to decide the appeal would not constitute prejudicial error, as the notification requirements of the VCAA have been satisfied and the Veteran has been provided a meaningful opportunity to participate in development of his claim.

VA has a duty to assist veterans in obtaining evidence necessary to substantiate their claims. The claims file contains reports of post-service medical treatment and a report of a March 2011 VA audiological examinations. VA has a duty to ensure the resulting medical opinions are adequate. Barr v. Nicholson, 21 Vet.App.303, 312 (2007). The March 2011 examination report reflects review of the claims file, an interview with, and examination of, the Veteran. The examination is adequate to decide these claims.

The applicable duties to notify and assist have been satisfied. There is sufficient evidence on file in order to decide this appeal and the Veteran has been given ample opportunity to present evidence and argument in support of his claims. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); see also Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of these issues has been obtained and the case is ready for appellate review. See 38 C.F.R. § 3.103 (2012). 

Merits of the Claims

The Veteran's service treatment and service personnel records are presumed to have been destroyed in a 1973 fire at the National Personnel Records Center. In these circumstances, the law requires that VA has a heightened obligation to explain its findings and conclusions and a heightened duty to consider the benefit-of-the-doubt rule. Dixon v. Derwinski, 3 Vet.App. 261 at 263-264  (1992). 

The Veteran's contentions are consistent with the general circumstances of his military service and the current medical opinion evidence is at least in equipoise as to whether the Veteran's current bilateral hearing loss and tinnitus are attributable to service. The Board will therefore grant service connection for bilateral hearing loss and tinnitus. 38 C.F.R. § 3.102. 

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. 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. When the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support a claim of service connection. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). 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, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Hickson elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (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. See Savage, 10 Vet. App. at 495-96; see also Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).

There must be objective indications of chronic disability, and this includes "signs" in the medical sense of objective evidence perceptible to an examining physician and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). A disability is considered chronic if it has existed for six months or more, even if exhibiting intermittent episodes of improvement and worsening throughout that six-month period. 38 C.F.R. § 3.317(a)(4).

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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d).

Certain chronic disabilities, to include certain types of hearing loss to the extent they may constitute an organic diseases of the nervous system, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). 

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 or 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 of Appeals for Veterans Claims has endorsed VA's interpretation of the law which indicates that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet.App. 155, 157 (1993), citing CURRENT MEDICAL DIAGNOSIS AND TREATMENT, 110-11 (Stephen A. Schroeder et al. eds., 1988). When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley, 5 Vet.App. at 160.

The Veteran contends that exposure to artillery fire during training as well as automotive noise associated with driving a dump truck resulted in his current bilateral hearing loss and tinnitus.  The Veteran reported at his January 2011 RO hearing that he was exposed to 105 millimeter howitzers, hand grenades and M1 rifles during training. He was later exposed to automotive engine noise from driving a dump truck while stationed in France. He reported that no hearing protection was provided during either activity. The Veteran's Report of Separation from the Armed Forces (DD Form 214) indicates that he served with Headquarters and Service Company, 83rd Engineer Battalion (Construction). The Veteran is competent and credible to report the circumstances of his service, and there is no evidence which contradicts his report.  

The law provides that 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). Based on the Veteran's military occupational specialty and the location of his service, the Veteran's contentions regarding his in-service exposure to acoustic trauma are consistent with the circumstances of his service under 38 U.S.C.A. § 1154(a) (West 2002). 

The Veteran further reported that his first post-service occupation was at a foundry, but that he soon started working at a factory where he always wore hearing protection. Subsequent occupations did not involve noise exposure. Finally the Veteran stated that he never sought treatment for his hearing loss or his tinnitus because he was told there was nothing that could be done.

The Veteran provided the report of a March 2011 private audiological examination. The examiner noted the Veteran's military service and reported in-service noise exposure including artillery fire, hand grenades, and driving of a dump truck. The examiner noted that the Veteran did not use any hearing protection during these activities. The examiner noted post-service occupations including warehouse supervisor, compound supervisor, and forklift operator. The Veteran reported that he used hearing protection in each of his post-service occupations. He reported current symptoms including humming and ringing in both ears, occasional discomfort, intermittent hearing and sensitivity to loud noises. The Veteran also reported tinnitus that had been present since he returned home from service in 1955. His tinnitus was initially intermittent, but is now constant. 

The examiner diagnosed bilateral hearing loss and tinnitus with speech recognition noted as worse in the right ear. She then opined that based on his reports of exposure to loud noise levels in service that were well documented as resulting in acoustic trauma, and the fact that tinnitus is a common symptom of acoustic trauma, his hearing loss and tinnitus were at least as likely as not due to his in-service noise exposure.

The Veteran was afforded a VA audiological examination in March 2011. The examiner noted noise exposure from small arms artillery and automotive engine noise with no hearing protection. Post-service vocational noise exposure was noted to consist of working at a foundry for six months with no hearing protection and warehouse work with low noise exposure. Recreational noise exposure was denied. The examiner noted the Veteran had tinnitus that was currently bilateral and constant; however, prior to 2000 was bilateral and intermittent. The Veteran reported that onset was "sometime during military service." 

The examiner diagnosed bilateral mild to moderate high frequency sensorineural loss with excellent speech recognition bilaterally. The examiner noted that reinstruction and multiple tests were necessary for consistent results. Extended speech testing was necessary due to nonsense substitutions and meaning reversal words used. His tinnitus was noted to be associated with his hearing loss. After a physical examination and review of the Veteran's claims file, the examiner opined that as military noise exposure consisted primarily of "training only," the pattern of hearing loss was not consistent with noise exposure, and there was no obvious reason for the tinnitus, it was not likely that the hearing loss or tinnitus were the result of military service. 

However, contrary to the VA examiner's observation, the Veteran has reported that he sustained acoustic trauma while on active military duty in a non-training environment. As noted, his duties as a truck driver in a construction engineer battalion would likely have exposed him to such acoustic trauma, without hearing protection. Indeed, there is no evidence that indicates he does not have in-service noise exposure. 

Lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan, supra. The Veteran is competent to report continuous symptoms of hearing loss and tinnitus because this requires only personal knowledge as it came to him through his senses. Layno v. Brown, 6 Vet.App. 465, 470 (1994).

Based on its review of the entire record, the Board finds the evidence to be at least in relative equipoise in showing that the current bilateral hearing disorder as well as the current tinnitus disorder is as likely as not due to the result of harmful noise exposure as would be consistent with the Veteran's active duty service including exposure to artillery fire and automotive engine noise. 38 U.S.C.A. § 1154(a) (West 2002).


ORDER

Service connection for bilateral hearing loss is granted.

Service connection for tinnitus is granted.


REMAND

The Veteran contends that he has chronic sinusitis that has been occurring since an in-service sinus infection. He stated at his January 2011 RO hearing that he became ill while he was stationed in France in 1954 and was placed in the hospital for 5 to 7 days to treat a fever and either a sinus infection or allergy problems. 

The Veteran was afforded a VA examination for his nose, sinus, larynx, and pharynx in March 2011. As part of the examination report, the VA examiner provided a detailed description of the VA treatment records reviewed, including Muskogee VAMC treatment records dating from August 2001. However, the reports cited are not included in the Veteran's claims file or in the Virtual VA paperless claims processing system. 

VA has a duty to obtain all outstanding identified VA treatment records as such records are constructively in the possession of VA adjudicators during the consideration of a claim. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, the Board finds that the Veteran's appeal must be remanded to obtain the treatment records.

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.  Request the Veteran identify all records of VA and non-VA health care providers who have treated him for his chronic sinusitis including the Muskogee VAMC treatment records cited by the March 2011 VA examiner. 

(a) After obtaining any appropriate authorizations for release of medical information, the RO must obtain records not currently associated with the claims file from each health care provider the Veteran identifies.

(b) The Veteran must also be advised with respect to private medical evidence that he may alternatively obtain the records on his own and submit them to the RO/AMC.

(c) Records of a Federal department or agency must be sought until it is reasonably certain that such records do not exist or that further efforts to obtain these records would be futile. 38 U.S.C.A. § 5103A(b)(3).

2.  After the above has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, INCLUDING BUT NOT LIMITED TO ANY APPROPRIATE VA MEDICAL EXAMINATIONS, appropriate corrective action must be implemented. 

3.  Thereafter, and after undertaking any additional development deemed necessary, readjudicate the remaining issues on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order.

The Veteran 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. 2011).



______________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs