Citation Nr: 1315128 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 11-26 710 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a skin disability, to include as a result of either exposure to herbicides or chemicals at Fort Detrick. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran had active service from June 1960 to June 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi which denied service connection for bilateral hearing loss; and a skin disability. In July 2011, the Veteran testified at a personal hearing before a Decision Review Officer (DRO) at the RO. A transcript of the hearing is associated with the claims file. The Veteran's Virtual VA claims file also has been reviewed, and additional VA treatment records have been uploaded dated through August 2012. Finally, an August 2012 rating decision denied the Veteran's claim for entitlement to service connection for coronary artery disease. The Veteran has not issued a notice of disagreement with that decision, and that issue is not before the Board at this time. 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 entitlement to service connection for a skin disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if any action on his part is required. FINDING OF FACT Right ear hearing loss per VA purposes was demonstrated upon separation examination in June 1962; and the Veteran's current bilateral hearing loss disability is reasonably shown to be etiologically related to his active military service. CONCLUSION OF LAW The criteria for the establishment of service connection for bilateral hearing loss are met. 38 U.S.C.A. §§ 1101, 1112, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303(b), 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (a)(2012). Regarding the Veteran's hearing loss disability, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Service Connection In general, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Stated somewhat differently, to establish entitlement to direct service connection for the claimed disability, there must be: (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) medical evidence of a nexus or link between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). Certain chronic diseases (such as organic diseases of the nervous system including sensorineural hearing loss) will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Other diseases initially diagnosed after service also may be service connected if the evidence, including that pertinent to service, shows the diseases were incurred in service. 38 C.F.R. § 3.303(d). But if chronicity of disease or injury in service is not shown, or legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Id. Further, evidence relating a current disorder to service must be medical unless it concerns a disorder that may be competently demonstrated by lay observation. Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to show chronicity (permanency) of disease or injury in service and, in turn, link current disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Additionally, the continuity and chronicity provisions of 38 C.F.R. § 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1311 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. § 3.309(a) as "a substitute way of showing in-service incurrence and medical nexus."). Relevant to this claim, as noted, organic diseases of the nervous system including sensorineural hearing loss is among the list of chronic disease listed within 38 C.F.R. § 3.309(a). Impaired hearing will be considered a disability only after threshold requirements are met. 38 C.F.R. § 3.385. Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. Bilateral hearing Loss - Facts and Analysis The Veteran contends that he developed hearing problems while on active duty; and has continued ever since. Specifically, he reported that that he experienced acoustic trauma with a grenade launcher during basic training. See June 2009 Veteran's statement. In this regard, the Board notes that he is competent to give evidence about what he experiences; for example, he is competent to discuss current pain and other experienced symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, the Board finds the Veteran's statement to be credible. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). Additionally, the Veteran has been granted service connection for tinnitus based on his reported noise trauma. The Veteran's service treatment records include an enlistment examination that documents a whispered test of 15/15. The records show no treatment for or complaints of hearing loss. 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. Conversion to ISO units is accomplished by adding 15 decibels to the ASA units at 500 Hertz, 10 decibels to the ASA units at 1000 Hertz, 2000 Hertz , and 3000 Hertz, and 5 decibels to the ASA units at 4000 Hertz. With conversion of the scores from ASA to ISO units for the Veteran's June 1962 separation evaluation, the pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 (30) 20 (30) 20 (30) 25 (35) 30 (35) LEFT 10 (25) 15 (25) 15 (25) 20 (30) 20 (25) Postservice VA treatment records dated from May 2001 through August 2012 document treatment for hearing loss, to include hearing amplification. A May 2001 VA treatment record documents the Veteran's longstanding hearing loss disability, as well as hearing aid use. On February 2010 VA audiological evaluation, the Veteran reported noise exposure while in basic training. He reported decreased hearing since the military. The examiner noted that there was no history of noise exposure before the military; and no postservice occupational or recreational noise exposure. The pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 45 60 70 LEFT 40 45 55 60 70 Mild to moderately severe bilateral sensorineural hearing loss was diagnosed. The examiner indicated that she reviewed the Veteran's claims file. She indicated that the separation examination showed mild high frequency loss in the right ear and normal hearing in the left ear. She stated that as there was no earlier pure tone hearing test for comparison purposes, she could not determine whether or not the noise exposure in the military caused the Veteran's hearing loss without resorting to mere speculation. During the February 2011 DRO hearing, the Veteran reiterated his contentions that he has experienced hearing loss since the acoustic noise trauma during basic training. He specifically testified that the while he was shooting off a grenade in launch grenade training, it shot out and hit his ear. See page 7 of the hearing transcript. With respect to the first element of a direct service connection claim, that of current disability, the Veteran's most recent February 2010 VA audiological examination reflects hearing loss disability for VA purposes. Therefore, the Veteran has demonstrated a current hearing loss disability in accordance with the provisions of 38 C.F.R. § 3.385. With respect to the second element of service connection, that of in-service disease or injury, the Board notes that in-service acoustic trauma has already been conceded by VA. Indeed, the Veteran is currently service-connected for tinnitus based upon his acoustic noise exposure. See, e.g., April 2012 rating decision (granting tinnitus). Thus, the Veteran's competent and credible reports of acoustic trauma are sufficient to satisfy the in-service injury requirement for service-connection. See Shedden, supra. In addition to the acoustic trauma noted above, the June 1962 separation examination also reflects in-service hearing loss. The remaining question is whether there is a nexus between the conceded in-service acoustic trauma (and hearing loss demonstrated in 1962) and the current bilateral hearing loss disability. As noted, the Veteran was afforded an audiological evaluation in February 2010. He reported at the time that he has experienced hearing loss since service. It was noted that the Veteran had mild high frequency hearing loss in the right ear at service separation and normal hearing in the left ear. The examiner essentially opined that she was unable to determine whether or not the Veteran's current bilateral hearing loss was related to the noise exposure, as there were no previous audiometric studies to compare. The Board finds the February 2010 opinion to be inadequate. The absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Furthermore, as noted above, when the June 1962 audiometric studies are converted from ASA units to ISO units, the Veteran clearly had a right ear hearing loss disability for VA purposes at the time he was tested prior to discharge from service. Having assigned the VA opinion very little probative value, the Board is thus left with the following evidence: in-service acoustic trauma occurring during basic training; in-service evidence of hearing loss (albeit it right ear) at service separation in 1962; a May 2001 VA audiological consult documenting longstanding history of bilateral hearing loss; and the Veteran's competent lay assertions that he has experienced bilateral hearing loss since service. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002)(holding that tinnitus is a condition that is capable of lay observation). Absent some indication that his lay assertions are not credible, and given that there is evidence of in-service acoustic trauma, evidence of in-service right ear hearing loss, and well-documented post-service continuity of bilateral hearing loss symptomatology/treatment, the Board finds that the evidence is, at the very least, in equipoise as to whether the Veteran's bilateral hearing loss, to include his left ear, is related to service. In resolving all doubt in the Veteran's behalf, service connection is warranted for this disability. See 38 C.F.R. § 3.303(b). ORDER Service connection for bilateral hearing loss is granted. REMAND Although the Board sincerely regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. In regards to the Veteran's skin disability service connection claim, remand is required to obtain an addendum opinion in order to ascertain whether or not the Veteran's current skin disability is related to the contact/traumatic dermatitis shown in service. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311(2007). Here, a September 2011 VA examination was conducted. Upon a review of the claims file and examination, the examiner adequately opined that it was less likely than not that the Veteran's skin disability was due to any chemicals or herbicides he may have come in contact with during military service. This opinion, however, does not adequately address whether the Veteran's current skin disability was related to the dermatitis shown in service. See November 1960 service treatment record. As such, the RO should request an addendum from the September 2011 examiner. The examiner should state whether the Veteran's skin disability is as likely as not related to the Veteran's November 1960 episode of dermatitis. If, and only if, the September 2011 examiner is not available, the Veteran should be scheduled for a VA in-person examination for the purpose of determining the nature and etiology of the his skin disability. Accordingly, the case 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/AMC shall ask the original September 2011 VA examiner to provide an addendum opinion, or if the VA examiner determines that it is necessary, schedule the Veteran for a new VA examination to determine the nature and etiology of his skin disability. The examiner should perform all indicated tests and studies. The entire claims file must be made available to the VA examiner and should be reviewed. The examiner should state whether it is "at least as likely as not" (50/50 probability) that the Veteran's skin disability began in service, is related to service, to include the November 1960 episode of dermatitis; and has been continuous since service. Consider the witness statements that the Veteran's skin was clear until his exposure to chemicals at the Fort Detrick, MD laboratories. Address whether it is as likely as not that the dermatitis he experienced in service was the start of his current skin problems. The examiner is reminded that a 50/50 probability is not like other standards such as beyond a reasonable doubt, etc. The question should be considered as whether the medical (and this includes the Veteran's assertions about his skin disability and how it has developed over the years) evidence is at least evenly balanced (tied). If the evidence is something more, or less, as in favorable or unfavorable to the Veteran, the examiner must state the reason for such a conclusion. Medical certainty is not required when providing such an opinion. All opinions (including one that finds that the evidence is evenly balanced) must be supported by a clear rationale and a discussion of the facts and medical principles involved. The examiner should specifically comment on the Veteran's lay assertions that he experienced a skin disorder during service and has been continuous since service. Advise the examiner that the Veteran's statements should be treated as credible for the purposes of the examination, however, the examiner may comment on whether the statements make sense from a medical point of view. Please explain the basis of your opinions. If using a medical treatise(s) or other like information, please provide the citation, and if possible, a copy of the information relied upon. In formulating the opinion, the examiner is asked to consider that the term "at least as likely as not" does not mean "within the realm of possibility," rather it means that the weight of the medical evidence both for and against the conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. If the examiner determines that a decision cannot be made without resort to mere speculation, then it should be clear in the examiner's remarks whether it cannot be determined from current medical knowledge. In other words, simply stating that an opinion cannot be provided without resort to mere speculation is not acceptable without a detailed reason as to why this is so. Jones v. Shinseki, 23 Vet. App. 382 (2010). 2. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs