Citation Nr: 1312355 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 12-13 717 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for lung cancer. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1955 to November 1958. The issues of service connection for hearing loss and tinnitus come before the Board of Veterans' Appeals (Board) on appeal from an April 2010 RO rating decision. The issue of service connection for lung cancer comes before the Board on appeal from a December 2011 RO rating decision. Regarding the issues of hearing loss and tinnitus, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge in March 2013, and the transcript is of record. A review of the Virtual VA paperless claims processing system reveals documents that are either duplicative of the evidence of record or are not 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). The issue of service connection for lung cancer is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. FINDING OF FACT The currently demonstrated bilateral sensorineural hearing loss and tinnitus are shown as likely as not to be due to the Veteran's exposure hazardous noise levels as an aircraft mechanic during service. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, his disability manifested by a bilateral sensorineural hearing loss and tinnitus are due to disease or injury that was incurred in active service. 38 U.S.C.A.§§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R.§§ 3.102, 3.303 (2012) REASONS AND BASES FOR FINDING AND CONCLUSION The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Such assistance includes obtaining a medical opinion when such is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. To the extent that the action taken hereinbelow is favorable to the Veteran, a discussion of VCAA is not required at this time. In this case, the Veteran testified that, as a jet mechanic in service, he was constantly exposed to loud engine noises for two and a half years. He stated that he first sought treatment for hearing loss in 1999 or 2000, but he noticed that his hearing has declined a little after separation from service. Significantly, he has credibly testified that he first noticed ringing in his ears during service in the course of carrying out his duties as a jet mechanic. The Veteran was afforded a VA audiology examination in February 2012. In the rationale for a negative nexus opinion for hearing loss, the examiner did not address the Veteran's military occupational specialty as a jet mechanic or his lay statements regarding his noise exposure in this capacity. In providing a negative nexus opinion for tinnitus, the examiner stated that there was no specific event link as to the onset of tinnitus; however, the Veteran is competent to discuss the onset of his tinnitus, which was not considered at the time of the examination. Furthermore, it would have been helpful had the examiner brought her expertise to bare in this manner regarding medically known or theoretical causes of hearing loss and tinnitus or described how hearing loss and tinnitus which result from noise exposure generally present or develop in most cases, as distinguished from how they develop from other causes, in determining the likelihood that current hearing loss and tinnitus were caused by noise exposure in service as opposed to some other cause. The VA examiner did note that the Veteran had a sensorineural hearing loss disability in each ear. She added that the hearing testing performed at separation from service showed normal thresholds. However, the VA examiner did not address whether the findings recorded at the time of separation in 1958 had been converted into an appropriate standard to facilitate comparison with current audiometric results. With respect to claims for service connection for hearing loss, the United States Court of Appeals for Veterans Claims has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Based on knowledge of service audiometric practice, it is assumed that service department audiometric tests prior to October 31, 1967, were in ASA units, and require conversion to ISO units. The ASA units generally assigned lower numeric scores to hearing loss than do the ISO units. To the extent that this conversion of the 1958 separation audiogram would likely result in higher decibel losses at each frequency, the Board finds that the testing in service did provide results that would be consistent with a loss of hearing acuity in each ear. Moreover, the Board finds that the Veteran has provided credible lay assertions sufficient to establish a continuity of symptomatology referable to hearing loss and tinnitus since service. Based on a careful review of the record, the Board finds the evidence to be in relative equipoise in showing that the current bilateral sensorineural hearing loss and tinnitus as likely as not are due to the Veteran's established exposure to harmful noise levels as an aircraft mechanic during service. In resolving all reasonable doubt in the Veteran's favor, service connection is warranted. ORDER Service connection for the bilateral hearing loss and tinnitus is granted. REMAND As for the claimed lung cancer, the Veteran contends that the lung cancer, post right lobectomy in September 2010, is due to his exposure to chemicals and hazardous materials during his long active service. As a jet mechanic, the Veteran avers that he was exposed to wheel wells and engine compartments, including brake systems, and chemicals which were used to service and maintain various aircraft (without protective garments). The Board recognizes that the Veteran has a current disability and has not been provided a VA examination or offered a medical opinion in connection with this claim. Additionally, the Board finds that the Veteran's allegations of exposure to hazardous chemicals are consistent with his military occupational specialty. The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Thus, the Board will remand this issue to obtain a medical opinion as to causation. Accordingly, this remaining matter 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. The RO should take appropriate action to contact the Veteran in order to have him provide information referable to any treatment rendered to him for the claimed lung cancer since 2010. Copies on all outstanding medical records should be obtained and associated with claims file. This should include obtaining copies of any outstanding VA treatment records. All attempts to secure this evidence must be documented in the claims file. The Veteran also should be notified that he may submit medical evidence or treatment records in support of his claim. 2. The RO then should have the Veteran scheduled for a VA medical examination in order to determine the nature and likely etiology of the claimed lung cancer. The claims folder should be made available to the VA examiner for review. Any indicated testing or studies should be performed. After reviewing the entire record, and examining the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not that the lung cancer is due to an event or incident of the Veteran's extensive active service, to include the claimed exposure to chemicals and other hazardous materials in the course of carrying out the duties of a jet mechanic in service. In doing so, the examiner should discuss medically known causes for the Veteran's particular type of lung cancer and the likelihood that such cancer is related to the chemical exposure in service or exposure to other risk factors post service, to include consideration of the Veteran's smoking history. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. The rationale for all opinions expressed must be provided. 3. After completing all indicated development, the RO should readjudicate the claim remaining on appeal in light of the all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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. 2012). _________________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs