Citation Nr: 1318722 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 08-35 908 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for a low back disability. 3. Entitlement to service connection for residuals of a fractured coccyx. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1961 to September 1967. These matters comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the Denver, Colorado Department of Veterans Affairs (VA) Regional Office (RO). In April 2013, the Veteran appeared and provided testimony before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the "Virtual VA" file. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a complete review of the evidence. The issues of entitlement to service connection for a low back disability and residuals of a fractured coccyx 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 Veteran's bilateral hearing loss disability had onset in service or was caused by his active military service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss disability have been met. 38 U.S.C.A. §§ 1110, 1112, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). For the purposes of applying the laws administered by VA, impaired hearing is considered a disability when a Veteran's auditory thresholds (puretone decibel loss) in one of the frequencies 500, 1000, 2000, 3000 and 4000-Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the above-mentioned frequencies are 26 decibels or greater. Impaired hearing for VA purposes may also be found when a Veteran's speech recognition scores, using the Maryland CNC Test, are less than 94 percent. See 38 C.F.R. § 3.385 (2012). Notably, the United States Court of Appeals for Veterans Claims (Court) has held that the absence of evidence of a hearing loss disability in service is not fatal to a veteran's claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The Court has also held that 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. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In this case the Veteran contends that he is entitled to service connection for bilateral hearing loss disability as such was caused by his active service, to specifically include his duties as an aircraft pilot therein. At his April 2013 Board hearing, the Veteran testified that since his separation from active service he has experienced problems with his hearing and that these problems progressively worsened over the years. The Veteran was afforded a VA audiological evaluation in February 2007. At that time the Veteran reported military noise exposure while serving as a pilot with 4,000 hours of flying time, as well as from serving in the Republic of Vietnam with exposure to heavy artillery. He reported postservice occupational noise exposure while serving as a pilot, but reported that he did not fly many hours. He also reported recreational noise exposure in the form of hunting without hearing protection and shooting with hearing protection. After examination of the Veteran, the examiner diagnosed high frequency moderate to moderately-severe sensorineural hearing loss (SNHL) disability in the right ear and high frequency moderately-severe SNHL disability in the left ear. The examiner opined that the Veteran's bilateral SNHL disability was not caused by or a result of his time on active service as his hearing sensitivity was normal at the time of entrance and separation from active service. Of record is a June 2011 private audiological evaluation from Utah State University. At the evaluation, the Veteran reported a long-time difficulty hearing speech. He reported military noise exposure from flying airplanes, as well as from artillery. He also reported being exposed to explosions while serving in the Republic of Vietnam. After examination, the Veteran was diagnosed with mild sloping to severe SNHL in the left ear and mild sloping from moderately-severe to severe SNHL in the right ear. The examining audiologist opined that based on the pattern of the Veteran's hearing loss and his history of noise exposure in the military, it was highly likely that his current hearing loss disability was related to his noise exposure on active service. It is not in dispute that the Veteran has a current bilateral hearing loss disability by VA standards, as such is shown by the audiometry evaluations of record. Furthermore, a review of the Veteran's DD Form 214 shows that his military occupational specialty (MOS) while on active service was pilot transport and the Veteran submitted service personnel records that show he logged nearly 4,000 flight hours while on active duty. Additionally, the Veteran has been granted service connection for tinnitus due to noise exposure in service. Based on his MOS, his extensive time spent flying, and his service-connected tinnitus, the Board readily concedes that the Veteran was exposed to noise trauma while on active service. What remains for consideration is whether the Veteran's current bilateral hearing loss disability is related to the noise trauma in service. Greater weight may be placed on one physician's opinion than another's depending on factors such as the reasoning employed by the physicians and whether (and the extent to which) they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Additionally, while the findings of a physician are medical conclusions that the Board cannot ignore or disregard, Willis v. Derwinski, 1 Vet. App. 66 (1991); the Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). The Board cannot reasonable conclude that one opinion is more probative than the other. The VA examiner provided a negative opinion, with a rationale that the Veteran's bilateral hearing loss disability was not related to his noise exposure in service because the Veteran's hearing sensitivity was normal bilaterally at the time of entrance and separation from active service. Utah State University provided a positive opinion, with a rationale that the pattern of hearing loss shown is consistent with noise exposure. Both examiners relied on an accurate history from the Veteran as to the extent and types of in-service acoustic trauma. In sum, the Veteran experienced significant noise exposure during active service, he reported at his April 2013 Board hearing that he had experienced hearing loss since separation from active service, and the June 2011 hearing evaluation report from Utah State University has competently linked the Veteran's bilateral hearing loss disability to the noise exposure sustained during active service. The evidence is in equipoise, and entitlement to service connection for bilateral hearing loss disability is warranted. Duty to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In light of the Board's granting of this claim, further discussion as to the VCAA is not necessary at this time. ORDER Entitlement to service connection for bilateral hearing loss disability is granted. REMAND The Board finds that additional development is required before the Veteran's remaining claims on appeal are decided. The Veteran testified at his April 2013 Board hearing that he suffers from a low back disability and a disability caused by the residuals of an inservice coccyx fracture. He testified that while serving in the Republic of Vietnam he was involved in a motor vehicle accident and sustained a fractured coccyx and that shortly after the motor vehicle accident he was involved in an airplane accident. A review of the Veteran's available service treatment records (STRs) is silent for any mention of a fractured coccyx sustained in service, a motor vehicle accident, or an airplane crash. However, the Board notes that the Veteran's STRs from September 1966 to December 1966 are not available for review. In a March 2010 statement, the Veteran explained that this was the timeframe during which he was serving in the Republic of Vietnam. He stated that during that time he sought treatment for several medical conditions, including the fractured coccyx sustained in the MVA. He also stated that he underwent a post-airplane crash physical following the reported 1966 airplane crash; however, the record of this physical is not available for review. It is noted on his separation examination that he had experienced high blood pressure following an airplane crash in 1966. In December 2009, the Veteran submitted multiple statements from former members of his United States Air Force unit and the United States Army unit he was assigned to while serving in the Republic of Vietnam. These statements corroborate the Veteran's assertions that he served in the Republic of Vietnam in 1966 and was involved in an airplane crash. Based on the Veteran's statements associated with the claims file, the notation on the separation examination of a plane crash in 1966, as well as the statements made at his April 2013 Board hearing, and the December 2009 buddy statements submitted by the Veteran, the Board concedes that the Veteran was involved in an airplane crash while serving in the Republic of Vietnam. Additionally, of record is a December 2004 private radiology report from St. Vincent Hospital which shows that on X-ray of the Veteran's lumbar spine, degenerative changes with a compression deformity at L1 was diagnosed. It was noted that the age of the compression deformity was indeterminate. An August 2008 letter from Dr. W. C., of the Leadville Medical Clinic, stated that it was possible that the compression fracture in the Veteran's lumbar spine could have been sustained during the inservice motor vehicle accident or airplane crash. Under 38 C.F.R. § 3.159(c)(4), an examination or opinion is necessary if the evidence of record: (A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (B) establishes that the Veteran suffered an event, injury or disease in service; (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service, or with another service-connected disability, but (D) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. The Court has held that requirement (C) is a "low threshold" requirement. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In light of the report of injuries during active service and his complaints of back pain since separation, as well as the suggestion from Dr. W.C. that his current low back disability could be related to his active service, the Board finds that the low threshold of McLendon (as to when an examination is necessary) is met, and that a VA examination is necessary to determine the nature and etiology of any currently present low back disability, to include any residuals of the inservice coccyx fracture. Additionally, current treatment records should be obtained before a decision is rendered with regard to these issues. Accordingly, the case is REMANDED for the following action: 1. The RO or AMC should undertake appropriate development to obtain any outstanding, pertinent medical records. Any additional treatment records identified by the Veteran should be obtained and associated with the claims file. If such efforts yield negative results, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow them the opportunity to obtain and submit those records. 2. Then, the Veteran should be afforded an appropriate VA examination by an examiner with sufficient expertise to determine the nature and etiology of any currently present low back disability, to include any residuals of the inservice coccyx fracture. The claims file must be made available to and reviewed by the examiner. All tests and studies deemed necessary by the examiner should be performed. After examination and review of the claims file, the examiner should provide an opinion with regard to any currently present low back disability, to include any residuals of the inservice coccyx fracture, as to whether it is at least as likely as not (a 50 percent or greater probability) that the disability is etiologically related to his active service, to include the motor vehicle accident or airplane crash reported therein. The complete rationale for all opinions expressed must be provided. The examiner should assume the Veteran is a reliable historian with regard to inservice events and injuries. 3. When the development requested has been completed, and the RO or the AMC has ensured compliance with the requested actions, this case should again be reviewed and readjudicated by the RO or the AMC on the basis of the additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs