Citation Nr: 1307965 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 10-36 551 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for a heart disorder. 2. Entitlement to service connection for Bell's palsy. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from December 1961 to October 1965. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2009 rating decision by the Seattle, Washington Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO denied service connection for a heart disorder, Bell's palsy, hearing loss, and tinnitus. In March 2012, the Veteran had a Travel Board hearing before the undersigned Veterans Law Judge. The Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on the Virtual VA electronic file system, to ensure a total review of the evidence. In April 2008, the Veteran submitted a claim for service connection for several disorders including a throat and esophagus disorder. In the January 2009 rating decision, the RO denied service connection for "bell's palsy (claimed as throat/esophagus problems)." Bell's palsy is a condition of the facial nerves, not of the throat or esophagus. Thus, the RO has not yet addressed the Veteran's claim for service connection for a throat and esophagus disorder. The record thus demonstrates that the Veteran raised the issue of service connection for a throat and esophagus disorder, but the Agency of Original Jurisdiction (AOJ) has not adjudicated that issue. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issues for service connection for a heart disorder and Bell's palsy 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 1. The Veteran was exposed to aircraft engine noise during service and occupational and recreational noise after service. 2. The Veteran did not have impaired hearing at the time of his separation from service. 3. Bilateral hearing loss discovered long after service is not attributable to the Veteran's noise exposure during service. 4. Tinnitus first noted after service is not attributable to the Veteran's noise exposure during service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred or aggravated in service nor as a result of noise exposure during service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012). 2. Tinnitus was not incurred or aggravated in service nor as a result of noise exposure during service. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has stated that the requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). Insufficiency in the timing or content of VCAA notice is harmless, however, if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). The RO provided the Veteran with VCAA notice in an April 2008 letter, issued before the January 2009 rating decision that the Veteran has appealed. In that letter, the RO addressed the information and evidence necessary to substantiate claims for service connection, addressed who was to provide the evidence, and informed the Veteran how VA assigns disability ratings and effective dates. The claims file contains the Veteran's service medical records, post-service medical records, statements from the Veteran, the report of a VA medical examination, and the transcript of the November 2012 Board hearing. A VA audiology examination that the Veteran had in September 2008 adequately addressed questions regarding the etiology of the Veteran's hearing loss and tinnitus. With regard to the issues that the Board is deciding at this time, no potentially relevant evidence that is not of record has been identified. With regard to the issues that the Board is deciding at this time, the Veteran was notified and aware of the evidence needed to substantiate the claim, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran has actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication nor to have caused injury to the Veteran's interests. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless, and does not prohibit consideration of those issues on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Service Connection for Hearing Loss and Tinnitus The Veteran reports that he was exposed to noise during service. He contends that his current hearing loss and tinnitus resulted from noise exposure during service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection for certain chronic diseases, including sensorineural hearing loss, may also be established based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Court has explained that, in general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court has stated that, under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 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; Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). The Court has indicated that "symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. For VA disability benefits purposes, impaired hearing is considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or 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; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). Decibel losses recorded on service department audiological examinations prior to November 1, 1967, are assumed to be measured in American Standards Association (ASA) units, and are converted to International Standards Organization (ISO) units to facilitate comparison of results. In the Hensley case, the Court noted that 38 C.F.R. § 3.385, "does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service." 5 Vet. App. at 159. The Court explained that: [W]hen audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. 5 Vet. App. at 160. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. 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. During the Veteran's service his duties were as a munitions specialist. He has stated that he helped to transport munitions to aircraft, and that while he worked around the flight line he was exposed to noise from aircraft engines that were running. He has indicated that he worked around the flight line sometimes for less than a hour at a time, and other times for several hours in a row. The report of a December 1961 examination of the Veteran for entrance into service shows measurement of the Veteran's hearing only by whispered voice and spoken voice testing. On each of those tests his hearing was 15/15 bilaterally. He underwent an audiological examination in January 1962. With conversion to ISO units, that examination showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 5 0 LEFT 10 5 10 15 15 In a medical history completed in October 1965, for separation from service, the Veteran checked yes for history of hearing loss and checked no for history of ear, nose, or throat trouble. It was noted that the Veteran was previously thought to have had slight impairment of auditory acuity, but that his hearing was now normal. On the Veteran's October 1965 service separation examination, with conversion to ISO units, audiological evaluation showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 10 5 5 LEFT 10 5 10 10 20 There has been no indication that the Veteran's hearing was tested during the year following his separation from active service. The claims file contains a report of testing of the Veteran's hearing at a private facility in December 2007. It was noted that a state government labor and industries program had recently provided the Veteran with new hearing aids. The 2007 audiological evaluation showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 20 45 50 LEFT 15 20 30 50 60 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 96 percent in the left ear. The audiologist indicated that the Veteran had sensorineural hearing loss. The Veteran had a VA audiology examination in September 2008. He reported that during service he was exposed to aircraft engine noise while he loaded munitions onto aircraft, and that he was not provided hearing protection. He expressed the impression that his hearing decreased during his service. He indicated that presently he had difficulty hearing and understanding conversational speech, especially when background noise was present. He reported that he had persistent tinnitus that began gradually many years earlier. He stated that after service he worked as a welder and fabricator for 40 years. He reported that toward the end of that career he occasionally used hearing protection. He stated that he hunted, used power tools, and used loud recreational equipment, and used hearing protection during those activities. Audiological evaluation showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 35 45 LEFT 20 15 30 50 65 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and 100 percent in the left ear. The examiner stated that the Veteran had moderately severe sensorineural hearing loss. The examiner provided the opinion that it is less likely than not that the Veteran's military noise exposure caused his hearing loss. The examiner noted that in addition to the Veteran's military noise exposure he had extensive history of occupational noise exposure without the use of hearing protection. The examiner expressed the opinion that the etiology of the Veteran's tinnitus is at least as likely as not associated with hearing loss. In a February 2009 statement, the Veteran reported that during service he was not provided hearing protection, and that he was told that the periods of time when his duties took him to the flight line would be short. He stated that, as it turned out, many times when he and his team brought munitions out to airplanes, the airplanes were not ready, and they waited for the airplanes to be ready while very loud aircraft engines continued to operate around them. In the March 2012 hearing Board hearing, the Veteran reported that during service he helped to transport munitions to aircraft, and that while he was on the flight line he was exposed to noise from aircraft engines that were running. He indicated that while performing those duties he was on the flight line sometimes for less than a hour at a time, and other times for several hours continuously. He stated that he was not provided any hearing protection, but that he sometimes put empty shell casings in his ears. He related that at his separation from service it was documented that he had hearing loss. He reported that presently he had constant ringing in his ears, and that this had begun when he was in his mid fifties. He indicated that his wife made him aware that he had a hearing problem. The Veteran's wife stated that the Veteran could not understand speech if there was any other sound in the room. She indicated that this had been the case for about 30 years, and that it had gotten worse. The Veteran reports that he was exposed to aircraft engine noise during service. The Board finds his accounts credible. He asserts that the noise during service damaged his hearing, that the hearing loss begun then continued after service. Testing during the Veteran's service, however, did not show hearing levels that constitute impaired hearing for VA benefits purposes. The Veteran asserts that hearing loss was documented at the time of his separation from service. On a medical history completed in October 1965 for separation from service, the Veteran checked yes for history of hearing loss. The clinician who examined the Veteran, however, reported that the Veteran was previously thought to have had slight impairment of auditory acuity, but that his hearing was now normal. The results of the 1965 hearing testing showing hearing within normal limits, and the examiner's statement that the Veteran's hearing was normal in October 1965, carry greater evidentiary weight regarding the condition of the Veteran's hearing at separation from service than the notations of an earlier perception of hearing difficulty. The preponderance of the evidence thus indicates that the Veteran did not have impaired hearing at separation from service. The VA examiner is an audiologist and thus is competent to evaluate the likely etiology of hearing loss. The audiologist's opinion that it is less likely than not that the Veteran's noise exposure in service caused his current hearing loss carries greater persuasive weight than the Veteran's assertion that his noise exposure during service caused the current hearing loss. The Board concludes that the preponderance of the evidence is against service connection for the Veteran's hearing loss. With regard to the tinnitus claim, no record from the time of service reflects that the Veteran reported experiencing tinnitus then. The earliest records of the Veteran's tinnitus are from many years after service. The VA examiner attributed the Veteran's tinnitus to his hearing loss, which she did not attribute to his noise exposure in service. The Board concludes that the preponderance of the evidence is against service connection for the Veteran's tinnitus. ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. REMAND The Veteran is seeking service connection for a heart disorder and for Bell's palsy. Medical records show that his heart disorder was discovered in 1998 and his Bell's palsy was discovered in 2005. The Veteran essentially contends that his heart disorder and his Bell's palsy were caused by hazards to which he was exposed during service. He served as a munitions specialist in the early 1960s. He reports that he was exposed to radiation in his duties maintaining nuclear bombs, to mustard gas in his duties moving old, leaky containers of mustard gas, and to asbestos in his duties in a building which contained asbestos around parts of the heating system. Medical records associated with the claims file provide information about the Veteran's heart disorder and Bell's palsy. The file does not contain any medical finding or opinion addressing the Veteran's claims that exposures during service caused or contributed to causing either or both of those disorders. The Board will remand those claims to develop additional evidence. In addressing claims for service connection for disability based on exposure to ionizing radiation, VA considers such factors as how a veteran was exposed to radiation, the amount of radiation to which he was exposed, and what disease developed after the exposure to radiation. See 38 U.S.C.A. § 1112(c) 38 C.F.R. §§ 3.309(d), 3.311 (2012). The Veteran reports that in his duties maintaining nuclear bombs he wore a film badge dosimeter, and that on three occasions his dosimeters were taken up because the film showed exposure to radiation. On remand military records of the Veteran's radiation exposure should be obtained, and an estimate should be made of the doses of radiation to which the Veteran was exposed. A VA physician should then review the claims file and provide opinions as to the likely relationships, if any, between the Veteran's service exposures to radiation, mustard gas, and asbestos, and his post-service heart disorder and Bell's palsy. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The RO should provide the examiner who will review the file in conjunction with this remand all evidence that is in the Virtual VA electronic claims file and not in the paper claims file and that is relevant to the remanded claim. Accordingly, the case is REMANDED for the following action: 1. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The AMC or RO is to review the electronic file. With all documents contained therein deemed to be relevant to the remanded claims and not duplicative of the documents already found in the paper claims file, take action to ensure that the records in the electronic file are made available (whether by electronic means or by printing) to the clinicians who are asked to review the claims file and provide medical findings in conjunction with the development requested herein. 2. Obtain the Veteran's military records that show the doses of radiation to which he was exposed during service. His claimed radiation-related duties were the maintenance of nuclear bombs and were performed in 1962 through 1964 at the Incirlik Air Base in Adana, Turkey. Records to be obtained should include, but need not be limited to, his Record of Occupational Exposure to Ionizing Radiation (DD Form 1141). Associate all records obtained with the claims file, and document all requests for records and responses to those requests. 3. Provide all evidence obtained regarding the Veteran's exposure in service to radiation, along with the Veteran's claims file, to the VA Under Secretary for Health. Request preparation of an estimate of the dose of radiation to which the Veteran was exposed in his duties maintaining nuclear bombs. 4. Send the Veteran's VA claims file for review and opinions by a physician regarding the etiology of the Veteran's heart disorder and his Bell's palsy. Provide the examiner with the Veteran's claims file, including radiation dose estimate, if obtained. Ask the examiner to take into account the Veteran's reports that during service he was exposed to radiation while maintaining nuclear bombs, was exposed to mustard gas while moving old containers of mustard gas, and was exposed to asbestos while working in a building with a heating system treated with asbestos. Ask the examiner to provide opinions as to whether it is at least as likely as not (at least a 50 percent probability), that exposure to radiation, mustard gas, and/or asbestos is causally related to: (A) the Veteran's heart disorder, and (B) the Veteran's Bell's palsy. Ask the examiner to clearly and thoroughly explain the reasoning and factual bases leading to each opinion. 5. After completion of the above, review the expanded record and determine if the Veteran's remanded claims can be granted. If any remanded claim remains denied, issue a supplemental statement of the case and afford the Veteran an opportunity to respond. Thereafter, return the case to the Board for appellate review. The Board intimates no opinion as to the ultimate outcome of the matters that the Board has remanded. The Veteran has the right to submit additional evidence and argument on those matters. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) 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). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs