Citation Nr: 1312945 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 07-24 294A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for residuals of left wrist ganglion cyst removal. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran served on active duty from November 1969 to November 1973, and from April to July 1997. He was also a member of the Army National Guard; and then the Air Force Reserves, during which he served on active duty from April to July 1997. Army National Guard records indicate he had periods of active duty for training (ACDUTRA) during each year from 1975 to 1986. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied the benefits sought on appeal. In August 2010 the Veteran testified before a Veterans Law Judge at a Travel Board hearing at the RO. In October 2010 the Board remanded the case to the RO for further development as to the two issues on appeal. In that decision the Board denied service connection for right ear hearing loss. Therefore that part of the Veteran's original claim of service connection for bilateral hearing loss is no longer before the Board. In January 2012, the Board notified the Veteran that the Veterans Law Judge who conducted the hearing in August 2010 was no longer employed by the Board. The Veteran was afforded the opportunity for another hearing before a Veterans Law Judge who would decide the claims. In February 2012, the Veteran stated that he did not want another hearing. The Board has recharacterized the claim regarding the residuals of left wrist ganglion cyst removal to comport with the facts of the case. In an August 2010 statement from the Veteran's representative, he raised claims for service connection for tinnitus, gout of the left foot, headaches, depression, carpal tunnel syndrome, and numbness of the left hand thumb and three digits. The issues of entitlement to service connection for tinnitus, gout of the left foot, headaches, depression, carpal tunnel syndrome, and numbness of the left hand thumb and three digits, have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these issues, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran has left ear hearing loss for VA compensation purposes that is related to acoustic trauma during active service. 2. The preponderance of the competent evidence is against a finding that residuals of left wrist ganglion cyst removal were incurred or aggravated in service, or related to service; and an organic disease of the nervous system was not manifested to a compensable degree within a year of separation from active duty. CONCLUSIONS OF LAW 1. The criteria for service connection for left ear hearing loss have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2012). 2. The criteria for service connection for residuals of left wrist ganglion cyst removal have not been met. 38 U.S.C.A. §§ 101(2), (24), 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.6(a), 3.102, 3.303, 3.304, 3.307, 3.309 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) On receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. With respect to the left ear hearing loss service connection claim, the Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. With respect to the claim for service connection for residuals of left wrist ganglion cyst removal, a number of letters addressed to the Veteran and dated between October 2005 and June 2012 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in a November 2011 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Subsequent to that supplemental statement of the case, in a February 2013 brief, the Veteran through his representative waived RO consideration of additional evidence submitted at that time. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment and personnel records, and VA and private medical treatment records, have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. A VA examination was conducted during the pendency of the claim in December 2010. The record does not reflect that the examination was inadequate for rating purposes. It should be noted that in the February 2013 Appellant's Post-Remand Brief, the Veteran's representative stated that in finding that the Veteran's left wrist condition was not related to his service, the December 2010 VA examiner did not consider many facts. To the extent this may suggest that the representative questions the adequacy of the examination, the Board nevertheless finds that the December 2010 examination was adequate. That examination was adequate as it: considered the evidence of record including the Veteran's reported history, was based on an examination of the Veteran, noted pertinent history and all findings necessary for a proper determination in the matter, and explained the rationale for opinions offered. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). Notably, in addressing the examiner's nexus opinion, the representative pointed out that the Veteran does not have to have a diagnosis on active duty to be service connected under 38 C.F.R. § 3.303 (d). While true, the representative is conflating the examiner's medical nexus opinion made on a medical basis, with the different, legal criteria for service connection under 38 C.F.R. § 3.303 (d); and merely advancing a legal argument for service connection but not a basis to find the examination inadequate. The Veteran himself has not argued, and the record does not reflect, that the examination was inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A veteran is a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable. 38 C.F.R. § 3.1(d) (2012). The term "active military, naval, or air service" includes: (1) active duty; (2) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(2), (24) (West 2002); 38 C.F.R. § 3.6(a) (2012). In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304. Service connection generally requires credible and 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may be granted if a disability is proximately due to or the result of a service-connected disability or if aggravation of a nonservice-connected disorder is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). If a Veteran served 90 days or more, and an organic disease of the nervous system becomes manifest to a degree of 10 percent or more within one year from date of termination of such service, such diseases shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). 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 that of which he or she has personal knowledge). 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, 581 F.3d at 1316; 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, 492 F.3d at 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). 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 Veteran. 38 U.S.C.A. § 5107(b). Left Ear Hearing Loss The Veteran claims service connection for left ear hearing loss as being due to an accumulative set of multiple exposures to a hazardous level of noise and resulting acoustic trauma from service related duties over a long career in the Air Force, Army National Guard, and Air Force Reserve. 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 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the above frequencies 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; see also Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes). With audiological examinations, the threshold for normal hearing is from 0 decibels (dB) to 20 dB; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). However, unless a hearing loss as defined under 38 C.F.R. § 3.385 is shown, VA may not grant service connection for hearing loss. On a whispered voice test a finding of 15/15 is considered normal. See Smith v. Derwinski, 2 Vet. App. 137, 138, 140 (1992). In a statement dated in August 2006 and another undated statement, the Veteran enumerated a list of assignments in a long career both in active service in the Air Force; and in the Army National Guard and Air Force Reserve. He reported on duties while in the Air Force between November 1969 and November 1973, while stationed in Vietnam at the Tan Son Nhut Air Base in 1971 through 1972. He reported that there was a continuous flow of air traffic and a constant roar of jets taking off and landing, and also there were incoming mortar rounds, and overall there was noise all the time. He indicated he worked on the flight line uploading and downloading aircraft with engines running. He reported that he was a member of an Army National Guard unit-the 49th Armory Division-from 1975 through 1985 in Alice, Texas. He was assigned to duties as a driver of a Personnel Carrier with an 81 mm motor cannon in the center. He reported his unit fired about 200 rounds a day of various types in an enclosed environment without effective ear protection. He reported that during this period he was exposed to other military related noise including M-16 gunfire. He reported that he was exposed to these hazardous noise conditions two weeks straight each of the ten years from 1975 to 1985. He reported that he was in the Air Force Reserves and assigned to the 74th Aerial Port Squadron (APS) from 1985 through 2003. His assignments included at Dover Air Force Base; Prince Sultan Air Base in Saudi Arabia in 1995; and Randolph AFB, Texas from 1999 through 2003. His duties involved loading cargo planes, including uploading and downloading various types of aircraft (C5, C17, C130, C141, L1011, and Boeing 747); and driving various material handling equipment, and other duties in close proximity to engine generating noise. He noted that during the Gulf War, an approximate average of 25 to 30 aircraft landed and took off each day with tons of equipment and passengers for deployment. He reported that from 2003 to 2005 he was assigned to the 37th Security Squadron, which involved guarding various Lockheed series aircraft mentioned above and the KC-10, and securing the flight line. At least eight to ten aircraft would take off daily, creating very loud high pitched noise, with after blast. Finally, in the August 2006 statement the Veteran reported that the cumulative effect of the repetitive, vociferous noise over the years adversely affected his hearing, resulting in his current hearing loss. Review of the transcript of his August 2010 hearing testimony before the undersigned shows that he testified then under oath consistent with the August 2006 statement and another undated statement. Service personnel records show active service in the Air Force from November 1969 to November 1973 including service in Vietnam, and active duty service while in the Air Force Reserve, from April 1997 to July 1997 with a specialty of air transportation craftsman. He was also a member of the Army National Guard from August 1974 to July 1986, with annual two-week periods of active duty for training each year between August 1974 and July 1986. Thereafter, reserve records reflect membership in the U.S. Air Force Reserves concluding with transfer to the Retired Reserves in 2005. Service personnel records show that the Veteran's military occupational specialties have included infantryman, armored personnel carrier driver, and air transport craftsman. Service treatment records include a number of examination reports, associated with the Veteran's entry and separation for the period of active service from 1969 to 1973, and periodic examinations dated between April 1985 and March 1998 associated with the Veteran's membership in the National Guard. These examinations show that on examination, hearing was measured, and pure tone thresholds in decibels were as follows at the indicated dates: HERTZ July 1969 500 1000 2000 3000 4000 RIGHT 5 -5 -5 - -5 LEFT 5 5 5 - -5 HERTZ Oct. 1973 500 1000 2000 3000 4000 RIGHT 0 0 0 0 0 LEFT 0 0 0 0 0 HERTZ Aug. 1974 500 1000 2000 3000 4000 RIGHT 10 10 10 - 5 LEFT 10 10 5 - 10 HERTZ Jan. 1977 500 1000 2000 3000 4000 RIGHT 5 10 15 - 25 LEFT 5 10 15 - 25 HERTZ April 1985 500 1000 2000 3000 4000 RIGHT 15 5 5 5 20 LEFT 5 5 10 10 15 HERTZ HERTZ 1000 2000 3000 4000 Dec. 1988 500 1000 2000 3000 4000 20 25 30 25 RIGHT 15 10 5 10 10 LEFT 25 10 10 20 25 1000 2000 3000 4000 HERTZ 5 5 5 20 Jan. 1993 500 1000 2000 3000 4000 5 10 10 15 RIGHT 10 5 5 15 20 HERTZ LEFT 5 5 15 20 30 1000 2000 3000 4000 Hertz 10 5 10 10 Mar. 1998 500 1000 2000 3000 4000 10 10 20 25 RIGHT 15 5 10 30 40 HERTZ LEFT 10 5 10 25 45 The March 1998 examination contains conclusions of bilateral mild high frequency hearing loss. A private audiology examination report of testing in February 2009 shows in graphic form audiology findings that clearly meet the requirements of 38 C.F.R. § 3.385 to be considered a hearing loss disability for VA purposes. The report of a May 2006 VA examination of the Veteran's hearing shows that the Veteran reported a history of gradually worsening hearing loss for the past few years. Audiological test results during the examination show pure tone thresholds in decibels as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 10 10 35 LEFT 10 10 10 30 40 These pure tone thresholds in decibels meet the requirements of 38 C.F.R. § 3.385 to be considered a hearing loss disability of the left ear for VA purposes. The examiner concluded that he could not opine as to the etiology of the left ear hearing loss without resort to mere speculation, because of inconsistencies in test data and noise history, both military and civilian. The report of a December 2010 VA examination of the Veteran's hearing shows that the Veteran reported complaints of difficulty understanding conversations and that ten years ago he began having tinnitus, which he related to loading aircraft with the engines running, and which was currently constant. The Veteran reported that he had served in the Air Force, Texas Army National Guard, and the Air Force Reserve; with Air Force related duties in air transportation, and infantry duties in the Army National Guard. He was exposed to military-related noise from artillery, mortar rounds, aircraft, and machinery. Outside of the military he was exposed to noise associated with work in construction and as a police officer, from traffic, oil fields, and heavy machinery. Audiological test results during the examination show pure tone thresholds in decibels as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 0 25 35 LEFT 10 10 15 35 45 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 64 percent in the left ear. These pure tone thresholds in decibels meet requirements of 38 C.F.R. § 3.385 to be considered a hearing loss disability of the left ear for VA purposes. The examiner who conducted the December 2010 VA examination concluded with an opinion that he could not opine as to the likelihood that the Veteran's hearing loss was causally or etiologically related to or aggravated by active service, without resorting to mere speculation. He based this result on a number of factors discussed, essentially, that a left ear hearing loss was first shown in January 1993 and that the Veteran had had exposure to noise as a civilian as well as a member to the Texas Army National Guard and the Air Force Reserve. No left ear hearing loss as defined under 38 C.F.R. § 3.385 is shown at the October 1973 separation examination prior to discharge from active service in the Air Force. Thereafter, the Veteran continued to be involved for decades in duties involving activities noted for hazardous noise levels in his roles in the Army National Guard and Air Force Reserve during periodic active duty for training, and his active duty from April 1997 to July 1997. The Veteran's military occupational specialties and specific roles involved close proximity to aircraft, military vehicles, weapons, with exposure to hazardous noise, with the expected associated acoustic trauma. See VA Fast Letter 10-35 (Sept. 2, 2010). Concurrent with the Veteran's military career, the evidence shows that, as reflected in the various service examination reports, since the Veteran's first period of active service, beginning in July 1969, the recorded auditory thresholds have progressively increased reflecting increased severity of hearing loss symptoms especially at the 4000 Hertz level. There is sufficient evidence of a current hearing loss disability as defined by 38 C.F.R. § 3.385, and of an accumulation of exposures to hazardous noise in service and during active duty for training over decades during membership in the Army National Guard and Air Force Reserve. The Veteran attributes his left ear hearing loss condition to the military related activities discussed, and he is competent to report as to the symptoms of hearing loss and as to there being a chronicity of hearing difficulties observed and associated with those activities. To the extent the Veteran associates his increasing level of hearing loss over the years as caused by noise exposure due to his proximity to military aircraft, machinery, and weapons fire, he is competent to report on symptoms contemporaneous with such exposures. The examiner who conducted both the May 2006 and December 2010 VA examinations concluded he was unable to provide an opinion without resort to speculation as to the probability that the left ear hearing loss disability is etiologically related to service. As to this result, his rationale-essentially that there was both military and civilian related exposure to noise-amounts to an approximate balance of positive and negative evidence regarding this issue. Given this, and the strong evidence of a long history of periodic exposure to military-related hazardous noise associated with accumulated acoustic trauma to the Veteran's left ear, the Board finds that, on affording the Veteran the benefit of any remaining doubt, service connection is warranted for left ear hearing loss. Residuals of Left Wrist Ganglion Cyst Removal In an August 2006 statement the Veteran reported that he had surgery on his left wrist in April 2004, and that the physician who performed surgery told him the ganglion cyst was the result of years of palletizing cargo, and pushing the pallets onto aircraft. During an August 2010 Travel Board hearing he testified that his wrist began to bother him in 2000 and he underwent surgery at that time. He testified that the treating physician concluded that because of the type of job he was doing he had developed a tear on his wrist, which developed into the ganglion cyst. He subsequently required another surgery in 2004, conducted at Audi L. Murphy VA Hospital. There are no service treatment records associated with the Veteran's period of active service from November 1969 to November 1973 or from April to July 1997, showing any injury or disease condition of the left wrist. Army National Guard and Air Force Reserve treatment records show no indications of an injury to the Veteran's left wrist or of any injury later associated with the claimed left wrist disorder. Treatment records dated in April 2004 from Brooke Army Medical Center show that the Veteran was admitted for complaints of a two-year history of a left wrist mass that had gradually increased in size over that time. The diagnosis was left wrist mass. The Veteran underwent excision of the left wrist mass without complications and was discharged the same day. The post-operative diagnosis was left wrist volar ganglion; and the final diagnosis was benign connective tissue with focal cystic degeneration compatible with ganglion cyst. A December 2010 VA examination report shows that the Veteran reported that during his membership in the Air Force Reserve, he was in the "active reserves" or on "active orders" even though he had a full-time civilian job, and was on duty on a 24-hour basis. The Veteran reported a history a left wrist condition with onset in the 1990s, with a gradual onset of a mass in the volar radial wrist. He reported he had a problem until 2000 when he had surgery, and then when the mass recurred he had a second surgery in 2005 at Audi Murphy VA Hospital. After the second surgery he noted a numbness in the radial side of the palm. Two lay statements received in February 2012 from two veterans familiar with the Veteran's duties during service substantiate the Veteran's basic claim that his military duties involved years of palletizing cargo and pushing the pallets onto aircraft. Neither of these statements assert that the Veteran injured his wrist or otherwise provides evidence of an actual wrist injury occurring as a result of service duties. After a review of the clinical record and examination of the Veteran, the examiner concluded with a diagnosis of recurrent volar radial ganglion cyst. The examiner opined that the condition was not caused by or a result of service because the records did not show complaints of a ganglion during active service, or within one year after discharge. The examiner noted that the last period of active service found was in 1997, and that the surgery was reportedly not until 2000; and the record was silent for about three years as to documentation of complaints or treatment. The examiner also diagnosed a left carpal tunnel syndrome; and opined that this was not linked to service, as it was related to nerve compression caused by the ganglion. The first evidence of any left wrist condition of record is found in the April 2004 treatment records when the Veteran reported a two-year history of a left wrist mass. At that time the Veteran underwent excision of the left wrist mass without complications and discharged the same day. The post-operative diagnosis was left wrist volar ganglion; and the final diagnosis was benign connective tissue with focal cystic degeneration compatible with ganglion cyst. The record does not show any disease or injury during a period of ACDUTRA, or of an injury during a period of INACDUTRA, on which to predicate service connection for the claimed residuals of left wrist ganglion cyst removal. Nor is an organic disease of the nervous system shown to have become manifest to a degree of 10 percent or more within one year from date of termination of service. Although the Veteran has alternatively reported earlier relevant symptoms in the 1990s, all of the contemporaneous evidence prior to April 2004 is inconsistent with that narrative, and reflects complaints only as of the April 2004 treatment with reference to symptoms beginning two years before. Given the foregoing, the Veteran's assertion of any continuity of symptomatology of a left wrist condition in the 1990s-conceivably during, or within one year of discharge from, his period of active service in 1997-lacks credibility and is not probative. The preponderance of the evidence is against the claim for service connection for residuals of left wrist ganglion cyst removal; there is no doubt to be resolved; and service connection is not warranted. ORDER Entitlement to service connection for left ear hearing loss is granted. Entitlement to service connection for residuals of left wrist ganglion cyst removal is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs