Citation Nr: 1307019 Decision Date: 03/01/13 Archive Date: 03/11/13 DOCKET NO. 09-40 294 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a left knee disability. 4. Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A.G. Alderman, Counsel INTRODUCTION The Veteran served on active duty from August 1979 to August 1982. This case 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 St. Petersburg, Florida. The Veteran was afforded a hearing at the RO before the undersigned Veterans Law Judge in October 2012. A transcript of the proceeding is of record. The issue of entitlement to service connection for hepatitis C is addressed in the REMAND that follows the ORDER section of this decision. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss disability and tinnitus are etiologically related to noise exposure during service. 2. Any currently present left knee disability is not etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss disability have been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012). 2. T he criteria for service connection for tinnitus have been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 3. The criteria for service connection for a left knee disability have not been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The VCAA also requires VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). With respect to each of the claims, the Board notes that the Veteran was provided all required notice in a letter sent in April 2009, prior to the initial adjudication of the claims. With respect to the hearing loss and tinnitus claims, the Board has determined that the evidence currently of record is sufficient to substantiate these claims. Therefore, no further development is required before the Board decides these claims. With respect to the left knee claim, the Veteran's service treatment records and identified post-service treatment records have been obtained. Neither the Veteran nor his representative has identified any existing evidence that could be obtained to substantiate the claim. The Board acknowledges that no VA examination was provided and no VA opinion was obtained in response to the left knee claim, but has determined that VA has no duty to provide an examination or obtain a medical opinion in this case. In this regard the Board notes that VA must provide a medical examination or obtain a medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. In this case there is no medical evidence of a left knee disorder in service or thereafter. Moreover, there is no competent evidence indicating that any current left knee disorder may be related to service or service-connected disability. At the October 2012 hearing, the Veteran was informed that he should submit medical evidence supporting his contention that his current left knee disability is related to service. The record was held open for the requested amount of time for that purpose but not additional evidence pertinent to the left knee claim was thereafter received. Accordingly, the Board will address the merits of the claims. General Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §1131; 38 C.F.R. § 3.303. Generally, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54 Bilateral Hearing Loss and Tinnitus For 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 of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies of 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 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 Veteran had a VA examination in August 2008. Audiometric testing showed that the auditory thresholds at 3000 Hz and 4000 Hz in the right ear were over 40 decibels while the threshold at 4000 Hz in the left ear was over 40 decibels. Therefore, the Veteran has a disability for VA compensation purposes. At entrance to service, the Veteran's auditory thresholds measured 10, 10, 10, 5, and 25 in the right ear at 500, 1000, 2000, 3000, and 4000 Hertz, respectively. His left ear measured 15, 15, 15, 0, and 20 at 500, 1000, 2000, 3000, and 4000 Hertz, respectively. At separation from service, the Veteran's auditory thresholds measured 10, 10, 10, 10, and 35 in the right ear and 10, 15, 15, 5, and 30 in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz, respectively. Therefore, STRs show that the Veteran suffered some hearing loss during service. Notably, the Veteran worked as a cannon crewman while in service, thus VA has conceded acoustic trauma. During his August 2008 VA examination, the Veteran said his tinnitus had its onset in 1982. Subsequent to service he worked with hand and power tools, construction, heavy equipment, trucks and earth moving equipment but used hearing protection. He had no recreational noise exposure. The diagnosis was normal to severe sensorineural hearing loss in the right ear and normal to moderately severe sensorineural hearing loss in the left ear. The examiner opined that the bilateral hearing loss and tinnitus were not due to service because the examiner found no significant change in hearing levels when comparing military audiometric examinations. The examiner also found no aggravation of the pre-existing hearing loss and found no documentation of tinnitus within the STRs. The opinion considered the short military tour versus the long occupational history of noise exposure. In his June 2008 statement, the Veteran said he was exposed to acoustic trauma on a daily basis during service without the benefit of hearing protection. His hearing has progressively worsened since service. He also noted that he had ringing in his ears during service but that he assumed it would go away. However, the condition has worsened over the years and interferes with sleep. In September 2011, the Veteran submitted additional statements from medical providers. A document from an otolaryngologist indicates that service treatment records were reviewed and that the Veteran's bilateral hearing loss and tinnitus were caused by or a result of acoustic trauma during service. The provider said noise exposure, especially loud blast noise, causes inner damage resulting in hearing loss and tinnitus. Symptoms are often latent. In another document, a licensed and board certified hearing instrument specialist indicated that she had reviewed the Veteran's treatment records since separation from service and that his bilateral hearing loss was most likely caused by noise exposure. During his hearing before the Board, the Veteran said he was a cannon crewman and trained on the 155 howitzer and a cannon. After service, he was not exposed to acoustic trauma as severe as that experienced in service. He worked on floors, trimming, etc. He did not engage in recreational activities with high levels of noise exposure. The Veteran said his hearing loss had its onset years ago. His witness, J.S., said she had observed his hearing difficulties since their first meeting 11 years prior. In this case, the Board finds the Veteran competent to report his symptoms of hearing loss and tinnitus for many years. Further, the Board finds that the Veteran is competent to describe his noise exposure during service and since service. The Board has reviewed all of the evidence and finds that the Veteran was exposed to acoustic trauma during service and that his separation examination showed slightly worsened hearing loss since entrance. The Veteran provided a history of his post-service employment which included jobs exposing him to acoustic trauma; however, he said he was provided with and wore hearing protection. The Board finds his statements credible. While the VA examiner stated that the hearing loss and tinnitus are less likely as not related to service because he had no significant change in hearing levels at separation, the VA examiner did not specifically indicate the etiology of the disabilities. The examiner noted a short period of service versus a long history of occupational noise exposure; however, it does not appear that the examiner considered the Veteran's report of using hearing protection during his employment subsequent to service. Weighing all of the evidence, the Board finds that the evidence is at least in equipoise as to whether the Veteran's bilateral hearing loss and tinnitus are a result of or related to his active service. Accordingly, entitlement to service connection for bilateral hearing loss and tinnitus is in order. Left Knee Disability The Veteran seeks service connection for a left knee disorder. STRs show that he was treated in October 1979 for a right knee injury, diagnosed as twisted right knee. They do not show any evidence of a left knee disorder. In addition, his left knee was found to be normal on the examination for discharge. The first indication of a left knee disorder is located in his April 2008 claim for service connection, filed more than 26 years after separation from service. In a June 2008 statement, the Veteran said he injured his left knee during service and that he was treated for the condition while on active duty. He complained of pain and instability. However, none of the medical evidence dated during or since service shows a left knee disability. August 2008 and November 2008 VA treatment records show complaints related to the right knee. The report of an August 2008 VA examination for cold injury exposure shows antalgic gait attributed to a knee condition. A specific knee was not identified. Prior to August 2008, the Veteran reported pain with other joints, but did not mention his left knee. During his hearing before the Board, the Veteran said he injured his left knee during basic training. He fell and reinjured the knee in Germany but could not remember if he sought treatment. Throughout service, he would bump his knee when climbing up and down to a turret. He was not treated for the condition until about 6 years prior to his hearing. Unfortunately, the Board finds that service connection for a left knee disability must be denied. In this regard, the Board notes that the Veteran has not reported that he has had chronic left knee symptoms since his discharge from service. Moreover, there is no medical evidence of any left knee disorder during the pendency of this claim or competent evidence linking any such disability to service. While the Veteran is competent to report pain and other left knee symptomatology, he is not competent to render a medical diagnosis or to provide an opinion linking any current left knee disorder to an injury sustained in service. Accordingly, the Board concludes that the preponderance of the evidence is against the claim. As such, service connection for a left knee disorder must be denied. ORDER Service connection for bilateral hearing loss disability is granted. Service connection for tinnitus is granted. Service connection for a left knee disability is denied. REMAND The Veteran seeks service connection for hepatitis C. During his hearing before the Board, the Veteran testified that he got three tattoos during service, shared razors with fellow servicemen, and was exposed to bodily fluids from airgun vaccinations during service. In January 2013, the Veteran submitted opinions from two doctors which indicate a nexus between in-service use of airguns and hepatitis C. The opinions are not adequately supported by rationale. The Veteran had a VA examination in December 2009; however, the examiner did not consider whether hepatitis C could be related to airgun vaccinations during service. The report also shows that the Veteran received his tattoos after service. Because the Board received opinions finding a nexus between in-service use of airguns and hepatitis C, because the opinions are not adequately supported by rationale, and because the VA examiner did not consider whether hepatitis C could have been transmitted via airgun injections, the Board finds that a remand is warranted for a new VA examination to determine whether any the Veteran's hepatitis C is related to his active service. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim, to include VA treatment records dated since October 2009. 2. Then, arrange for the Veteran to be afforded a VA examination by a physician with the appropriate expertise to determine the etiology of his hepatitis C. The claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and reviewed by the examiner. Based on review of the record and examination of the Veteran, the examiner should state an opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that hepatitis C is etiologically related to active service. The examiner must address all alleged in-service risk factors including tattoos, razor sharing, and vaccinations given by airgun. The examiner should also address the November 2012 statements from S.P., MD and W.B., MD, both of which express a nexus between hepatitis C and service. The supporting rationale for all opinions expressed must be provided. 3. Undertake any other indicated development. 4. Then, readjudicate the claim. If the benefit sought is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and the requisite opportunity to respond before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court 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). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs