Citation Nr: 1313452	
Decision Date: 04/23/13    Archive Date: 05/03/13

DOCKET NO.  06-00 431A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUES

1.  Entitlement to service connection for a skin condition of the foot, to include tinea pedis.

2.  Entitlement to service connection for right ear hearing loss.

3.  Entitlement to an initial rating in excess of 10 percent for residuals of a rupture of the extensor tendon, distal phalanx, right index finger with degenerative changes.

4.  Entitlement to a compensable initial rating for left ear hearing loss.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

K. Marenna, Associate Counsel


INTRODUCTION

The appellant had active service from July 1959 to July 1963.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona.

In February 2013, a Travel Board hearing was held before the undersigned Veterans Law Judge and a transcript of that hearing is of record.

The issues of entitlement to service connection for a skin condition of the foot, to include tinea pedis, entitlement to an initial rating in excess of 10 percent for residuals of a rupture of the extensor tendon, distal phalanx, right index finger with degenerative changes, and entitlement to a compensable initial rating for left ear hearing loss 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.

FINDING OF FACT

The competent medical, and competent and credible lay, evidence of record supports a finding that the appellant has right ear hearing loss that is related to service.  


CONCLUSION OF LAW

Right ear hearing loss was incurred in active service.  38 U.S.C.A. §§ 1131, 1154, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the appellant's claims folder.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant).

The Board must assess the credibility and weight of all 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.  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.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

I.  Notice and Assistance

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

Given the favorable disposition of the claim for service connection for right ear hearing loss, that any defect related to VA's duties to notify and assist is moot.  See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Mlechick v. Mansfield, 503 F.3d 1340 (2007).

II.  Legal Criteria

Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet.App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).  

Certain chronic disabilities, such as hearing loss, as an organic disease of the nervous system, if manifest to a degree of 10 percent or more within one year after separation from active duty, may be presumed to have been incurred in or aggravated by service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

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).  

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 of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these 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.

III.  Analysis

The appellant asserts that he has right ear hearing loss that was caused by his exposure to loud noise in service.  The appellant is service-connected for left ear hearing loss and tinnitus.  For the reasons that follow, the Board finds that service connection for right ear hearing loss is warranted.

The appellant was evaluated in a VA audiological examination on February 2011.  In the evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
45
55
70
70
75

Speech audiometry revealed speech recognition ability of 96 percent in the right ear.  The VA examiner diagnosed the appellant with moderate to severe sensorineural hearing loss in the right ear.  Pursuant to the standard set forth in 38 C.F.R. § 3.385, the record establishes that the appellant has a current right ear hearing loss disability for VA purposes.  Therefore, the Board finds that the first element of a service connection claim, that of a current disability, has been met.

In evaluating the second element of service connection, that of in-service incurrence, 38 U.S.C.A. § 1154(a) and 38 C.F.R. § 3.303(a) provide that due consideration shall be given to the places, types, and circumstances of a veteran's service as shown by his service record, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence.  The appellant asserts that he was exposed to loud noise as a crew chief on the flight line in the air force.  See February 2011 VA examination report.  His DD 214 indicates his military occupational specialty (MOS) was aircraft mechanic.  Based on this history, the Board finds the appellant was likely exposed to loud noise in-service.  However, for service connection to be granted, competent and credible evidence must show that the appellant's current hearing loss disability is at least as likely as not attributed to service.  

The appellant's enlistment examination report from July 1959 reflects that the appellant's right ear had whisper voice test results of 15/15, indicating normal hearing.  In a July 1959 enlistment report of medical history, the appellant indicated that he did not have a history of ear, nose or throat trouble.  

The appellant underwent a hearing examination in July 1963 for discharge from service.  Prior to November 1967, military audiometric results were reported in American Standards Association (ASA) units; VA used ASA units prior to July 1966.  However, in July 1966, VA adopted International Organization for Standardization (ISO) units, and the military followed suit in November 1967.  The current definition for a hearing loss disability found at 38 C.F.R. § 3.385 is based on ISO units.  The military audiograms in the this case must be converted from ASA to ISO units.  Essentially, this means adding 10 decibels to the reported findings in most frequencies, the exceptions being adding 15 decibels at 250 and 500 Hertz and 5 decibels at 4000 Hertz.

The July 1963 examination report reflects that, pure tone thresholds, in decibels, converted to ISO units, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
25
30
25
25

As noted above, the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Hensley, 5 Vet.App. at 157.  Thus, the appellant's discharge examination report indicates that he had some degree of hearing loss at the time of his discharge from service.  However, the appellant did not have a hearing loss disability for VA purposes.  In a July 1963 report of medical history, the appellant denied having a history of ear, nose or throat trouble.

In a March 2005 statement, the appellant stated that he was rejected from the Reserves after service because he had hearing loss.  The appellant's hearing was initially evaluated at a VA examination in March 2005.  However, the VA examiner noted that there were no accurate pure tone thresholds that could be reported.

An August 2006 private audiological evaluation report reflects that the appellant reported that he had long standing hearing loss that he began noticing during and after his service on the flight line in close proximity to jet engines in the military.  The appellant reported no other history of noise exposure subsequent to his military service.  He reported no other otologic symptoms.  He also reported that he was currently using 2 year old hearing aids that were provided to him by the VA hospital.  The private audiologist stated that test results revealed a bilateral sloping mild to severe sensorineural hearing loss.  He stated that "based on the patient's statements that there has been no further exposure to loud noise subsequent to his military service, it is my opinion this patient's hearing loss and tinnitus are associated with acoustic trauma from the noise exposure he sustained during military service."  The appellant has consistently denied having significant post-service noise exposure and he was exposed to loud noise in the flight line in service.  Thus, the private audiologist's statement is consistent with the evidence of record.  As the private audiologist provided a rationale for the opinion, the Board finds the opinion to be probative.  

The appellant's right ear was evaluated at an October 2009 VA audiological examination.  The VA examiner noted that the appellant reported having no pre-service noise (student) and limited post-service noise (construction foreman).  The VA examiner found that the appellant had moderate to severe right ear hearing loss, but did not provide an opinion as to whether the hearing loss was related to service.  

The appellant was afforded another VA audiological examination in February 2011.  The VA examiner noted that a release from active duty (RAD) hearing test indicated hearing was within normal limits in the right ear.  The appellant reported that he was exposed to noise exposure as a crew chief on the flight line in the air force.  Hearing protection was provided with intermittent use.  The appellant denied post-service noise working at a meat factory, since he worked in the field hauling in cattle, not in the factory.  He also denied noise working construction, saying that he did primarily office work or driving.  No recreational noise was reported.  The VA examiner stated that: 

Based on the Institute Of Medicine report (Noise and Military Service, September 2005) which concluded that based on current knowledge, noise induced hearing loss occurs immediately (i.e. there is no scientific support for delayed onset [noise-induced hearing loss] weeks, months, or years after the exposure event), and given the Veteran's hearing was within normal limits in the right ear at time of [the] separation exam, it is less likely as not that the hearing loss in the right ear is related to military noise exposure.    

The Board finds that the rationale for the February 2011 VA examiner's opinion is inadequate.  As noted above, the appellant's July 1963 discharge examination report indicated the appellant had some degree of hearing loss under Hensley.  Moreover, the VA examiner failed to consider the appellant's statements that he has had hearing loss since service.  

The absence of in-service evidence of hearing loss is not fatal to a claim for service connection.  38 C.F.R. § 3.303(d) (2012); See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Although a VA examiner is not prohibited from finding audiometric results at separation to be etiologically relevant, normal in-service hearing tests do not preclude a veteran from establishing entitlement to service connection.  See Hensley, 5 Vet. App. at 160 (holding that "section 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" and explaining that when audiometric 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).

In this case, the appellant currently meets the definition for a hearing loss disability for VA purposes, but he did not meet the requirements during service.  See 38 C.F.R. § 3.385.  The February 2011 VA examiner based the opinion solely on the fact that the appellant's discharge examination was within normal limits.  However, this was not necessarily fatal to the appellant's claim and cannot be the only basis by which to reject a possible nexus to service.  See Ledford, 3 Vet. App. at 89; 38 C.F.R. § 303(d).

The appellant is competent to report having had symptoms of hearing loss since service.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  He is not competent to report that he has had a diagnosis of hearing loss for VA compensation purposes since service.  During the period on appeal, the appellant has asserted that he has had hearing loss since that time. See March 2005 statement,  December 2011 wife statement.

The appellant has contended that his right ear hearing loss disability is related to service.  Although a lay person may be competent to report the etiology of a disability, hearing loss is not the type of disorder which is susceptible to lay opinion concerning etiology.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  

Based on the evidence of record, the Board finds that a preponderance of the evidence supports a grant of service connection for right ear hearing loss.  The Board finds that the evidence is sufficient to establish that the appellant was exposed to loud noise while working on a flight line in service.  The appellant's discharge examination report also reflects that the appellant had some degree of hearing loss, as defined by Hensley, at the time of his discharge from service.  Further, according to the February 2011 VA audiological examination, the appellant has a current right ear hearing loss disability for VA purposes as defined by 38 C.F.R. § 3.385.  As discussed above, the August 2006 private audiologist opined that the appellant's hearing loss was associated with acoustic trauma from the noise exposure he sustained during military service.  As the audiologist provided a rationale for the opinion and the facts were consistent with the available evidence of record, the Board finds the opinion to be probative.  Although the February 2011 VA examiner found that it was not at least as likely as not that the appellant's right ear hearing loss was related to military noise exposure, the opinion had an inadequate rationale and is thus not probative.  Accordingly, giving the appellant the benefit of the doubt, the Board finds that a preponderance of the evidence supports the claim for service connection for right ear hearing loss.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).


ORDER

Entitlement to service connection for right ear hearing loss is granted.


REMAND

In regard to the appellant's claim for a rash on the foot, the appellant was provided with a VA examination in February 2011 to determine whether he had a rash that is related to service.  The VA examiner found the appellant had mild tinea pedis.  The VA examiner found that it was not at least as likely as not that the foot condition was related to service.  The VA examiner stated that "patient was unaware of foot involvement" and that a tinea infection was not diagnosed on feet.  It is unclear as to when the appellant was unaware of foot involvement, according to the VA examiner's statement.  As a lay person, the appellant is competent to report symptoms capable of lay observation, such as a rash on the foot.  Although the VA examiner stated that the appellant was unaware of foot problems, in his August 2004 claim, the appellant stated that he had jungle rot in his feet from Vietnam.  If VA provides the claimant an examination in accordance with the duty to assist, the examination must be adequate.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  As the VA examiner's rationale is unclear and the VA examiner did not appear to consider the appellant's assertion that he has had a chronic foot rash since service, the Board finds that the February 2011 VA examiner's rationale was inadequate.  The claim must be remanded for a new VA examination.

In a December 2011 statement, the appellant's wife stated that the appellant had seen Dr. S.B., a private doctor, for his skin problems.  Although the record notes "VA Form 21-4142" after Dr. S.B.'s name, there does not appear to be a VA Form 21-4142, an authorization and consent form to release records to VA, in the claims file for Dr. S.B.  As the records are relevant to the claim, the appellant should be requested to complete an authorization form to obtain records from Dr. S.B.

In regard to the appellant's claim for an increased initial rating for service-connected residuals of a rupture of the extensor tendon of the dial phalanx, right index finger with degenerative changes, the Board finds that the claim must be remanded for a new VA examination.  The appellant's right index finger was most recently evaluated at a VA examination in November 2012.  The VA examiner stated that the appellant complained of numbness from doing construction for 40 years and the finger was functional as "I was the foreman for the last 30 years" except it was fixed at 20 degrees due to progressive traumatic arthrosis which "can hurt if I bank it on something" but the mild numbness which causes him to have little pain is due to post service other use.  The examiner noted that thumb tip to index tip pinch strength was 5/5 and equal to the non-injured left.  The examiner accordingly found that there was no real functional loss from this injury.  The Board notes that the appellant is service-connected for residuals of a rupture of the extensor tendon, distal phalanx, right index finger with degenerative changes.  The VA examiner did not fully discuss what symptoms of the appellant's finger were due to his service-connected disability and why the numbness was not related to his service-connected disability.  The VA examiner specifically noted that the appellant's right index finger was fixed at 20 degrees and ankylosis was noted on previous VA examinations.  However, the VA examination report reflects that the appellant did not have ankylosis of the thumb and/or fingers.  The VA examination report also notes that the appellant was not able to perform repetitive-use testing with 3 repetitions, but did not provide a reason.  Consequently, the Board finds the VA examination report is unclear and incomplete.  The claim must be remanded for a new VA examination.

The Board also finds that the appellant's claim for a compensable initial rating for left ear hearing loss must be remanded for a new VA examination.  The appellant and his wife's testimony at the February 2013 Board hearing indicates that the appellant's hearing loss may have worsened since the previous VA examination in February 2011, more than two years ago.  The appellant testified that he could not hear out of his hearing aids anymore.  (February 2013 Board Hearing Transcript (Tr.) at p. 10)  His wife testified that the appellant's hearing was getting worse and that he more or less reads her lips.  (Tr. at pp. 10-11)  As the evidence indicates the appellant's hearing loss disability may have worsened, the Board finds that the February 2011 VA examination is not sufficiently contemporaneous for purposes of evaluating the nature and severity of the appellant's hearing loss disability.  The appellant is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination.  Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994).  Therefore, the Board finds that a VA examination is necessary prior to appellate adjudication of this issue.

The claims file includes an August 2006 private audiological report.  The test results are presented in a graphic, rather than numeric form.  While the Board may in some instances be able to interpret such graphic representations, the record is unclear as whether the Maryland CNC speech discrimination test was used.  The private audiologist should be contacted and requested to translate the graphic findings in numerical format and clarify whether the controlled speech discrimination test (Maryland CNC) was conducted in obtaining the results.  Savage v. Shinseki, 24 Vet. App. 259 (2011).

Finally, the VA treatment records in the file only date to from October 2008 to October 2009 and from September 2010 to July 2011.  As the records may be relevant to the claim, the Board requests the appellant's complete VA treatment records.  

Accordingly, the case is REMANDED for the following action:

1.  Contact the appellant and request properly executed, separate VA form 21-4142's, Authorization and Consent to Release Information to the Department of Veterans Affairs, for any and all private medical care providers he has seen for tinea pedis or any foot rashes, to include Dr. S.B.  

2.  Obtain the appellant's VA treatment records from prior to October 2008, from October 2009 to September 2010, and from July 2011 to present.  If no records are available, the claims file must indicate this fact.

3.  The August 2006 private audiometric examination should be sent back to the audiologist for clarification.  The private audiologist should convert the graphical information into numerical data and clarify if the Maryland CNC speech discrimination test was used in that examination.  If the private audiologist fails to respond, contact the appellant and request that he obtain the information from the private audiologist.

4.  After completion of steps 1 and 2, schedule the appellant for a VA examination to determine the following:

(i)  Identify all skin conditions of the foot, to include tinea pedis. 

(ii)  Provide an opinion as to whether any skin conditions identified, to include tinea pedis, were at least as likely as not (50 percent probability) incurred in or caused by service.  

For purposes of the examination, the VA examiner should assume that the appellant's statements that he has had a chronic rash on his foot since service are credible.

The VA clinician is requested to provide a thorough rationale for any opinion provided.  The clinician should review the claims folder and this fact should be noted in the accompanying medical report.  If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided.  

5.  After completion of steps 1 and 2, schedule the appellant for a VA examination to evaluate the current severity of the appellant's service-connected residuals of a rupture of the extensor tendon of the distal phalanx, right index finger with degenerative changes.  

The claims file must be made available to the examiner for review.  All appropriate tests and studies should be conducted, and any consultations deemed necessary should be accomplished.  The examiner should provide a complete report of all findings and specifically comment on the impact of the appellant's right index finger disability upon his social and industrial activities, including his employability.

6.  After completion of steps 1 through 3, schedule the appellant for a VA audiological examination to determine the current severity of the appellant's hearing loss.

The claims file must be made available to the examiner for review.  All appropriate tests and studies should be conducted, and any consultations deemed necessary should be accomplished.  The examiner should provide a complete report of audiometric findings and also specifically comment on the impact of the appellant's hearing loss upon his social and industrial activities, including his employability.

7.  Thereafter, readjudicate the issues on appeal.  If any benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond.  The case should then be returned to the Board, as warranted.

The appellant has the right to submit additional evidence and argument on the 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).



______________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs