Citation Nr: 1315015 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 09-18 999 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for hepatomegaly (hereinafter "a liver disorder"), to include as the residuals of acute infectious hepatitis. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Nigam, Counsel INTRODUCTION The Veteran served on active duty from October 1971 to October 1974. He also had service in the National Guard from November 1981 to March 2005. This matter initially came to the Board of Veterans' Appeals (hereinafter "Board") on appeal from a January 2008 rating decision by the Department of Veterans Affairs (hereinafter "VA") Regional Office (hereinafter "RO") in Indianapolis, Indiana. In April 2011, the Board remanded this matter to the RO via the Appeals Management Center (hereinafter "AMC"), in Washington, DC for further development, to include providing the Veteran with an opportunity to submit further medical evidence in support of his claims, obtaining outstanding service treatment records, obtaining outstanding post-service medical records, and obtaining a VA medical examination and clarifying opinion to address the claim for a right ear hearing loss disability. In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed the file on the "Virtual VA" system to ensure a complete assessment of the evidence. No additional documents pertinent to the present appeal were revealed. The appeal must again be REMANDED to the RO via the AMC for further development of the record. VA will notify the Veteran if further action is required. REMAND Unfortunately, additional development is required prior to the disposition of the issue of entitlement to service connection for a right ear hearing loss disability. The Veteran contends that his currently diagnosed right ear hearing loss is due to acoustic trauma related to excessive noise exposure during his active service and National Guard training. He essentially claims a date of onset of right ear hearing loss since 1972, with ongoing symptomatology since that time, after being exposed to jet engine noise, diesel truck engine noise, and rocket, mortar, and artillery fire and detonations. He asserts that his only significant noise exposure occurred during his military service, and reported that in his post-service career as a policeman he has worn hearing protection during weapons training. The RO has conceded the Veteran's exposure to acoustic trauma and granted service connection for left ear hearing loss based upon the results of audiometric testing performed at the time of his discharge from active service in 1974, which showed decreased levels of hearing acuity in the left ear. Testing of the right ear hearing acuity revealed hearing within normal limits. However, the absence of in-service evidence of hearing loss is not fatal to a claim for service connection, and evidence of a current hearing loss disability and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran's military occupational specialty (hereinafter "MOS") during his first period of active duty in the Army as a military policeman has been identified as an occupation where there was a high probability of noise exposure. See Duty MOS Noise Spreadsheets, Veterans Benefits Administration Fast Letter 10-35 (Dep't of Veterans Affairs, September 2, 2010). Moreover, the Veteran is competent to assert the occurrence of in-service injury, to include in-service acoustic trauma. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1991). Accordingly, the Board concedes the Veteran was exposed to in-service noise trauma. The Board also concedes that the Veteran currently experiences VA compensable hearing loss in the right ear (see August 2007 and April 2011VA audiology examination reports). See 38 C.F.R. § 3.385. Therefore, the Veteran meets the threshold criterion for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Hence, the resolution of this claim turns on whether there is probative evidence linking the current right ear hearing loss to the Veteran's military service. The service treatment records reveal numerous audiometry test results in ISO units, which show fluctuations in the Veteran's hearing acuity in his right ear over his many years of active duty and National Guard service. A Report of Medical Examination for the purpose of entry into service, dated in October 1971, shows audiometric test results indicating pure tone thresholds in the right ear were 10, 5, 15, untested and 50 decibels, respectively, at 500, 1,000, 2,000, 3,000 and 4,000 Hz. A Report of Medical Examination for the purpose of annual evaluation, dated in September 1973, shows audiometric test results indicating pure tone thresholds in the right ear were 5, 0, 0, 25 and 50 decibels, respectively, at 500, 1,000, 2,000, 3,000 and 4,000 Hz. A Report of Medical Examination for the purpose of separation from service, dated in September 1974, shows audiometric test results indicating pure tone thresholds in the right ear were 5, 5, 5, 10 and 30 decibels, respectively, at 500, 1,000, 2,000, 3,000 and 4,000 Hz. He was diagnosed with high frequency hearing loss. Routine general medical examinations conducted during the Veteran's National Guard service, dated in 1981 and 1986, indicate findings of right ear hearing acuity within normal limits. However, the report of a January 1994 National Guard examination reflects pure tone thresholds in the right ear were untested, 0, 0, 65 and 65 decibels, respectively, at 500, 1,000, 2,000, 3,000 and 4,000 Hz. The examining physician observed that speech reception was normal. Also, a February 1996 National Guard examination reveals a decrease in hearing acuity in the left ear, but otherwise show right ear hearing acuity within normal limits. A January 2003 National Guard examination reveals pure tone thresholds in the right ear were 5, 5, 30, 70 and 65 decibels, respectively, at 500, 1,000, 2,000, 3,000 and 4,000 Hz. A June 2004 audiogram report by a hearing aid dealer shows pure tone thresholds in the right ear were untested, 25, 35, 70 and 65 decibels, respectively, at 500, 1,000, 2,000, 3,000 and 4,000 Hz. An April 2006 audiogram report by a hearing aid dealer shows pure tone thresholds in the right ear were 10, 20, 40, 75 and 75 decibels, respectively, at 500, 1,000, 2,000, 3,000 and 4,000 Hz. The August 2007 VA audiology examination report reflects observation that an October 1971 enlistment physical revealed audiometric test results of normal hearing through 2,000 hertz, bilaterally, with a moderate hearing loss at 4,000 hertz in the right ear. The examiner noted that a September 1973 annual audiometric evaluation and a September 1974 separation physical audiometric evaluation indicated unchanged hearing since enlistment. The examiner noted noise exposure while serving as a military policeman in Vietnam, and throughout his Army service. The examiner also noted that the Veteran served as an artillery man in the National Guard. Post-service, the Veteran worked as a police officer, which required qualifying on the shooting range with hearing protection in place. The Veteran denied any noisy recreational activity. He also denied any medical history relative to ear surgery or infection. As noted, on physical examination, audiometric testing showed findings of VA compensable hearing loss in the right ear, and the Veteran was diagnosed with normal to severe sensorineural hearing loss bilaterally. 38 C.F.R. § 3.385. The examiner observed that the Veteran had high frequency hearing loss upon entry to the military in 1971, and had unchanged high frequency hearing loss upon separation from active duty in 1974. The examiner concluded that the Veteran's hearing loss was not the result of his active military service. This opinion has been deemed inadequate for VA rating purposes as it failed to address the Veteran's National Guard service. Moreover, the examiner failed to comment upon whether or not the Veteran's pre-existing right ear hearing loss was permanently aggravated in service. On VA examination in April 2011, after reviewing the claims file, the examiner diagnosed the Veteran with normal to severe sensorineural hearing loss. The examiner opined that it could not be determined as to whether the decrease in the Veteran's right ear hearing acuity shown between 1986 and 1994 was due to injury in the form of acoustic trauma sustained during his National Guard duties without resorting to mere speculation. The examiner observed that testing in 1986 indicated normal thresholds at 250 to 3000 Hz, and testing in 1994 revealed moderately severe hearing loss at 3000 to 6000 Hz in the right ear and moderately severe to moderate hearing loss at 3000 to 6000 Hz in the left ear. The examiner indicated that although there was a documented decrease in hearing thresholds during this time, it should be noted that there was a 7.5 year gap between tests, and the claims file contains no testing during that time period to further document decrease in thresholds. The examiner also indicated that the Veteran was not on active duty during this time and was employed as a police officer with confirmed noise exposure as well. The examiner noted that although the Veteran had hearing loss upon enlistment in the Army in 1971, it was possible that this decrease could be attributed at least somewhat to a pre-existing hearing loss. The examiner concluded that due to pre-existing hearing loss prior to service documented in 1971, as well as to the large gap in testing (7.5 years) which documented a decrease in hearing, and in consideration of the Veteran not being on active duty during the entire time period, the examiner could not render an opinion regarding the etiology of the right ear hearing loss without resort to mere speculation. "An examiner's conclusion that a diagnosis or etiology opinion is not possible without resort to speculation is a medical conclusion just as much as a firm diagnosis or a conclusive opinion . . . however, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence." Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). In this case, the examiner explained that an etiology opinion could not be proffered without resorting to speculation, based on a clearly flawed interpretation of the evidence. In this regard, the examiner ignored the Veteran's earlier report that he wore hearing protection while employed, post-service, as a police officer. In fact, the examiner appears to have also ignored the Veteran's contention that he experienced hearing loss in his right ear since 1972. Moreover, the examiner failed to provide an opinion as to whether or not the Veteran's preexisting right ear hearing loss was permanently aggravated in service. Thus, the Board concludes the April 2011 examination, as it relates to the matter of a medical nexus, is inadequate to render a decision in this case. See id. The Board notes that, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). It is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence. See Owens v. Brown, 7 Vet.App. 429 (1995); Gabrielson v. Brown, 7 Vet.App. 36 (1994); see also Guerrieri v. Brown, 4 Vet.App. 467, 470-471 (1993) (observing that the evaluation of medical evidence involves inquiry into, inter alia, the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches); Mariano v. Principi, 17 Vet.App. 305, 317 (2003) (observing that flawed methodology in creating medical report renders physician's opinion of "questionable probative value."); Sklar v. Brown, 5 Vet.App. 140, 146 (1993) (observing that a specialist's opinion as to a medical matter outside of his or her specialty to be given little weight). It is well settled that in its decisions, the Board may not rely upon its own unsubstantiated medical opinion. Allday v. Brown, 7 Vet. App. 517 (1995); Godfrey v. Brown, 7 Vet. App. 398 (1995); Traut v. Brown, 6 Vet. App. 495 (1994); Colvin v. Derwinski, 1 Vet. App. 171 (1991). Without further clarification, the Board is without medical expertise to determine whether there is evidence that the Veteran's right ear hearing loss was permanently aggravated in service. Godfrey v. Brown, 7 Vet. App. 398 (1995); Traut v. Brown, 6 Vet. App. 495 (1994); Colvin v. Derwinski, 1 Vet. App. 171 (1991). Further, the examiner should address the Veteran's lay assertions that address continuity and chronicity of symptomatology in the report. The Veteran is competent to indicate that he experiences symptoms of hearing loss in service and since service. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); 38 C.F.R. § 3.159(a)(2). Additional development is also required prior to the disposition of the issue of entitlement to service connection for a liver disorder. The Veteran asserts that he currently experiences a liver disorder that is related to his in-service treatment for infectious hepatitis. He essentially contends that he experienced pain in his abdomen since service that is related to his in-service treatment, and that he now has fatty liver disease. The service treatment records reveal that in October 1972, the Veteran was diagnosed with and treated for infectious hepatitis, probably type A, resolving, after complaining symptoms of fever, headaches, anorexia, nausea, vomiting and dark urine. It was noted that he was stationed in Vietnam in May 1972, where he had drunk local beverages with ice and ate local food. His abdomen was described as tender upon fist percussion. In December 1972, the Veteran was treated for complaints of a 48 hour illness characterized by abdominal cramps and two explosive-type bowel movements a day. He described experiencing chills, but was not aware of fever. He reported symptoms of anorexia and vomiting, as well as golden urine that was slightly darker than usual. On physical examination, his abdomen was described as soft with mild right upper quadrant and right lower quadrant tenderness. No organomegaly was observed and the hepar was measured at 8 centimeters. The Veteran was diagnosed with probable viral gastroenteritis. In March 1973, the Veteran was treated for dysuria for four days. It was noted that he had been treated for gonococcus on three occasions while in Vietnam, including 5 months prior to the examination. The Veteran was tested for syphilis with negative results. He was given an impression of frenulum lesion of unknown etiology, rule out lymphogranuloma venereum, rule out chancroid, rule out lues hereditaria and rule out nonspecific urethritis, with no evidence of gonococcus. In May 1973, the Veteran was treated for severe abdominal pain on the right side. The examining physician noted the Veteran experienced pain in the right lower pubic area for three days, and that he denied a history of trauma. He was checked for a hernia but had no rebound tenderness or swelling, and was given an impression of mild muscle strain. Urinalysis results were negative. In October 1973, the Veteran was again treated for complaints of dysuria for three days, with brown discharge. A smear was conducted and no bacteria were seen. Post-service, a December 2006 VA lab test shows findings of nonreactive hepatitis C serum. A liver function test performed in March 2007 reflects elevated serum glutamic pyruvic transaminase levels. In April 2007, the Veteran was observed to have hepatomegaly. An ultrasound of the abdomen, conducted in May 2007, shows the results of partial imaging of the liver, including no focal lesions in the right lobe of the liver, and the left lobe obscured by overlying bowel gas. The impression given was nondiagnostic study. Clinical correlation was recommended, as well as a CT scan of the abdomen if indicated. A VA cardiologist observed that the Veteran had mild elevation of serum alanine aminotransferase to serum aspartate aminotransferase levels and hepatomegaly on examination. In July 2007, a VA lab report included findings of "liver function tests now normal." An April 2008 VA primary care outpatient note indicates the Veteran complained of chronic right upper quadrant pain especially after consuming alcohol, which has bothered him since he had hepatitis in service. In a statement received in May 2011, the Veteran reported that since his initial diagnosis of hepatitis in service in October 1972, he has experienced pain and an enlarged liver. He indicated that many physicians have diagnosed him with a fatty, enlarged liver that contained hypodensities at the hepatic dome. The Veteran noted that he was told the hypodensities were too small for characterization by CT scan. The Veteran is competent to indicate that he experiences symptoms of pain in his abdomen since his treatment for hepatitis in service. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); 38 C.F.R. § 3.159(a)(2). Private treatment records from the "Deaconess Health System" show that in December 2005, the Veteran underwent a CT of the abdomen and pelvis without contrast. The radiologist provided an impression of hypodensities within the liver at the hepatic dome that were too small for characterization by CT. No acute inflammatory process in the abdomen or pelvis was noted. A November 2006 CT of the abdomen and pelvis without contrast revealed negative findings. In April 2011 the Veteran underwent diagnostic testing of the upper abdomen after complaining of upper abdominal pain. The findings indicated a liver that is top normal in size and mildly echodenic suggestive of fatty infiltration, but no focal abnormality was seen in its visualized portion. The Veteran was diagnosed with an impression of mild fatty liver. As there is evidence of both in-service and post-service treatment for liver pathology, and as there is no medical opinion of record that addresses the etiology of any current liver disorder, the Board finds that examination and opinion must be obtained to determine whether the Veteran has any current liver disability that is of service origin. 38 U.S.C.A. § 5103A(d)(2) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4)(i) (2012). See McLendon v. Nicholson, 20 Vet. App. 79 (2006). As noted, the Board may not rely upon its own unsubstantiated medical opinion. Allday v. Brown, 7 Vet. App. 517 (1995); Godfrey v. Brown, 7 Vet. App. 398 (1995); Traut v. Brown, 6 Vet. App. 495 (1994); Colvin v. Derwinski, 1 Vet. App. 171 (1991). When the medical evidence of record is insufficient, in the opinion of the Board, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991); see also 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must arrange for the Veteran to undergo a VA examination by an appropriate examiner to determine the nature and etiology of any current right ear hearing loss disability. A copy of this remand and all relevant medical records should be made available to the examiner, to include any pertinent records in the Virtual VA Folder. The examiner is asked to confirm whether paper and/or electronic records were available for review. All indicated studies and tests, to include audiometric testing if warranted, are to be performed, and a comprehensive social, educational and occupational history are to be obtained. After reviewing the record, considering the Veteran's contentions, and examining the Veteran, the examiner should address the following questions: a. Did any right ear hearing loss pre-exist the Veteran's service? The examiner specifically addressed the April 2011 VA examination report, as well as the findings of the October 1971 Report of Medical Examination. b. Did any preexisting right ear hearing loss undergo a permanent increase in the severity of the underlying pathology during service? c. If there was a permanent increase in the severity of the Veteran's right ear hearing loss during service, then was the increase due to the natural progression of the disability? d. If the hearing loss in the right ear did not pre-exist service, is it at least as likely as not (50 percent probability or more) that any current right ear hearing loss disability is due to the conceded noise exposure sustained while serving as a military policeman, or another event of the Veteran's service, including that which occurred with the National Guard? In providing answers to the above questions, the examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. In making all determinations, the examiner is asked to carefully consider the Veteran's own assertions and any lay assertions of record. The examiner is advised that the Veteran is competent to report his symptoms, and that his reports must be considered in formulating the requested opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for any opinion offered is requested. If the examiner is unable to render the requested opinion without resort to pure speculation, he or she must so state; however, a complete rationale for such a finding must be provided. 2. The RO/AMC must arrange for the Veteran to undergo a VA examination by an appropriate examiner to determine the nature and etiology of any current liver disorder. A copy of this remand and all relevant medical records should be made available to the examiner, to include any pertinent records in the Virtual VA Folder. The examiner is asked to confirm whether paper and/or electronic records were available for review. All indicated studies and tests, to include liver function testing if warranted, are to be performed, and a comprehensive social, educational and occupational history are to be obtained. After reviewing the claims files, the examiner should provide an opinion with clear explanation and supporting rationale as to whether or not any liver disorder diagnosed during the pendency of this claim is it at least as likely as not (50 percent probability or more) etiologically related to the Veteran's active duty service. In providing answers to the above questions, the examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. In making all determinations, the examiner is asked to carefully consider the Veteran's own assertions and any lay assertions of record. The examiner is advised that the Veteran is competent to report his symptoms, and that his reports must be considered in formulating the requested opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for any opinion offered is requested. If the examiner is unable to render the requested opinion without resort to pure speculation, he or she must so state; however, a complete rationale for such a finding must be provided. 3. After the above development is completed, and any other development that may be warranted based on any additional information or evidence received, the RO/AMC must consider all of the evidence of record and readjudicate the claims of service connection. If the benefit sought is not granted, the RO/AMC must issue a supplemental statement of the case and allow the Veteran and his representative an opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran 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). _________________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).