Citation Nr: 1320991	
Decision Date: 06/28/13    Archive Date: 07/05/13

DOCKET NO.  04-25 255	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

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

2.  Entitlement to service connection for osteopenia.  

3.  Entitlement to service connection for right lower extremity deep vein thrombosis (DVT), to include as secondary to service-connected left knee disability.  


REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, Inc.


WITNESSES AT HEARING ON APPEAL

Appellant and friend


ATTORNEY FOR THE BOARD

Jennifer Hwa, Counsel


INTRODUCTION

The Veteran served on active duty from October 1970 to April 1971 and from March 4, 1984 to March 18, 1984.  He also had extensive service in the United States Reserves and the Army National Guard of several states.    

This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2004 and January 2007 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the Veteran's claims for service connection for right ear hearing loss, osteopenia, and right lower extremity DVT.  

The Veteran testified before the Board at a travel board hearing in August 2006.  A transcript of this hearing has been associated with the claims file.  

The Board remanded these claims for additional development in October 2006, August 2010, and April 2012.  

Regarding the issues of service connection for osteopenia and right lower extremity DVT, the Board notes that following a June 2012 statement of the case, the Veteran did not file a Form 9 appeal for these issues.  However, in June 2012, the Veteran did file a statement in which he provided arguments disagreeing with the June 2012 statement of the case.  Therefore, since the Board must liberally construe the Veteran's arguments for purposes of determining whether they raise issues on appeal, the Board accepts the June 2012 statement from the Veteran in lieu of a Form 9 as a timely filed substantive appeal.  Thus, the Board has jurisdiction over these claims at this time.  See 38 C.F.R. §§ 20.202, 20.302 (2012).  

The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims.  A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. 

The  issues of entitlement to service connection for prostate cancer, entitlement to an increased rating for a left knee disability, and entitlement to a total disability rating based on individual unemployability 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 them, and they are referred to the AOJ for appropriate action.  

The issues of service connection for osteopenia and right lower extremity DVT 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 evidence is at least in relative equipoise on the question of whether the Veteran's current right ear hearing loss is related to acoustic trauma in active service.


CONCLUSION OF LAW

The criteria for establishing service connection for right ear hearing loss have been met.  38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304(b), 3.306, 3.307, 3.309, 3.385 (2012).  





REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096  (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, and 3.326(a) (2012). 

Given the Board's favorable disposition to grant the claim for service connection for right ear hearing loss, the Board finds that no discussion of VCAA compliance is necessary at this time. 

Analysis

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012).  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in 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, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).

Generally, a disability will be service-connected if it was incurred or aggravated in the line of duty in the active military, naval, or air service.  38 U.S.C.A. §§ 101(16), 1110, 1131 (West 2002); 38 C.F.R. §§ 3.1(k), 3.303 (2012).  Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty.  38 U.S.C.A. § 101(21) and (24) (West 2002); 38 C.F.R. § 3.6(a) (2012).  ACDUTRA is, inter alia, full-time duty in the Armed Forces performed by Reserves for training purposes, and includes full-time duty performed by members of the National Guard of any state.  38 U.S.C.A. § 101(21), (22) (West 2002); 38 C.F.R. § 3.6(c)(1) (2012).  Active military, naval, or air service also includes any period of inactive duty 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(24) (West 2002); 38 C.F.R. 
§ 3.6(a) (2012).  INACDUTRA means, inter alia, duty other than full-time duty prescribed for Reserves or the National Guard of any state.  38 U.S.C.A. § 101(23)  (West 2002); 38 C.F.R. § 3.6(d) (2012).

In order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).  

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 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.  

"[W]hen audiometric test 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."  Hensley v. Brown, 5 Vet. App. 155, 160 (1993).  The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Id. at 157.

The Board has reviewed all of the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

The Veteran asserts service connection for right ear hearing loss on the basis that he developed the conditions due to in-service, non-combat-related acoustic trauma.  He has also alleged that he has continuously experienced right ear hearing loss since discharge from service.  

The Veteran's service personnel records indicate that while serving on active duty, he worked as a Special Forces officer and dive master.  He reported being exposed to artillery fire on a frequent basis in addition to being exposed to dive noise.  The Board notes that noise exposure is consistent with the duties and circumstances of being a Special Forces officer and dive master.  As such, the Board concedes the occurrence of the in-service acoustic trauma.  Additionally, as the Veteran is alleging that an acoustic injury occurred during his periods of service, including his periods of ACDUTRA and INACDUTRA, and not a disease, the distinction between whether the Veteran had ACDUTRA or INACDUTRA is not crucial in this case because the regulations provide for service connection for injuries incurred during either type of duty training.  See 38 U.S.C.A. §§ 101(21), (22), (24) (West 2002); 38 C.F.R. §§ 3.6(a), (c)(1) (2012).

The Veteran's service treatment records show that at a November 1971 annual examination, audiometric testing revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
0
       5
5

At an April 1985 medical board examination, audiometric testing revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
20
25
30

At a July 1986 commissioned officer's examination, audiometric testing revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
0
15
5

At a July 1987 commissioned officer's examination, audiometric testing revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
0
0
15
0

Post-service VA medical records dated from April 2001 to August 2006 show that the Veteran's right ear had normal hearing.  However, these records do not provide any audiometric data to support this finding.  

The Veteran and his friend testified before the Board at a travel board hearing in August 2006.  The Veteran testified, in pertinent part, that he had high frequency hearing loss that was related to the noise exposure he received in service due to excessive amounts of gunfire.  He reported that his military occupational specialty in service was that of infantry and Special Forces.  He stated that he had received combat training and had been in actual combat around 1989 to 1990.   

On VA audiology examination in December 2010, the Veteran reported that he could not hear clearly without the use of his right ear hearing aid.  He complained that he could not hear in some ranges at all.  He indicated that during service, he had been exposed to aircraft and artillery noise without hearing protection, as well as gunfire and armor noise with inconsistent use of hearing protection.  He denied any occupational noise exposure and stated that he had recreational noise exposure due to hunting.  He maintained that he used hearing protection while hunting.  

Audiometric testing at that time revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
30
25
       45
40

Speech audiometry revealed speech recognition ability of 92 percent in the right ear.  

The examiner assigned a diagnosis of normal to mild right sensorineural hearing loss.  The examiner reviewed the entire claims file and opined that it was less likely as not that the Veteran's right ear hearing loss was due to his period of service.  The examiner noted that the records showed that the Veteran had normal hearing results in the right ear from 1971 to 2006.  She explained that the Institute of Medicine (IOM) had concluded that based on current knowledge of cochlear physiology, there was insufficient scientific basis for the existence of delayed onset hearing loss.  The examiner indicated that the IOM did not rule out the possibility that delayed onset hearing loss might exist.  However, because the requisite longitudinal animal and human studies had not been done, and based on the current knowledge of acoustic trauma and the instantaneous or rapid development of noise-induced hearing loss, there was no reasonable basis for delayed onset hearing loss.        

An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached.  The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators.  Guerrieri v. Brown, 4 Vet. App. 467 (1993); Gabrielson v. Brown, 7 Vet. App. 36 (1994).  Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence.  Gabrielson v. Brown, 7 Vet. App. 36 (1994).  The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion.  Sklar v. Brown, 5 Vet. App. 140 (1993). 

In rendering the assessment that right ear hearing loss was not due to in-service noise exposure based on the available evidence, the December 2010 VA examiner explained that there was insufficient scientific basis for the existence of delayed onset hearing loss, which the Veteran had because the evidence showed that he had normal hearing results in the right ear from 1971 to 2006.  However, the Board notes that although the Veteran's post-service VA medical records dated from 2001 to 2006 indicated that he had normal right ear hearing, no audiometric data was provided in support of this finding.  As there is no audiometric data during this period of time, it is unclear whether the Veteran had a right ear hearing loss disability for VA purposes.  See 38 C.F.R. § 3.385.  Therefore, the Board finds that the December 2010 VA medical opinion is not based on an entirely accurate factual premise, and this limits its probative value.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Swann v. Brown, 5 Vet. App. 229, 233 (1993); Black v. Brown, 5 Vet. App. 177, 180 (1993).  Additionally, the December 2010 VA examiner did not take the Veteran's lay statements into account regarding continuity of symptomatology of right ear hearing loss, which further diminishes the probative value of the opinion.  Dalton v. Nicholson, 21 Vet. App. 23 (2007).

As the Veteran has been diagnosed with right ear sensorineural hearing loss (organic disease of the nervous system), a condition explicitly recognized as chronic under 38 C.F.R. § 3.309(a) (2012), service connection based on a theory of continuity of symptomatology can be warranted under 38 C.F.R. § 3.303(b) (2012) for his right ear hearing loss.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  In this case, the Veteran is competent to report the onset and chronicity of symptomatology of his right ear hearing loss, see Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007), and the Board finds that his statements in this regard are credible.  The Board also notes that the Veteran's statements as to the onset of his right ear hearing loss are consistent with his acoustic trauma during service, which the Board has already conceded.  Additionally, the Board finds that although the Veteran did not meet the criteria under 38 C.F.R. § 3.385 for right ear hearing loss during service, the audiometric findings do show that there was an increase in his right ear hearing loss during service.  

In sum, the Board finds that the balance of positive and negative evidence is at the very least in relative equipoise regarding the issue of whether the Veteran's right ear hearing loss was related to acoustic trauma during his period of active service.  Where the evidence supports the claim or is in relative equipoise, the appellant prevails.  Thus, the criteria for service connection for right ear hearing loss have been met.  Reasonable doubt is resolved in favor of the Veteran, and the Board finds that service connection for right ear hearing loss is warranted.  38 U.S.C.A. 5107 (b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

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



REMAND

After a review of the record, the Board observes that further development is required prior to adjudicating the Veteran's claims of entitlement to service connection for osteopenia and right lower extremity DVT.  

The Board notes that the January 2007 rating decision and June 2012 statement of the case indicate that the Veteran filed his claims for entitlement to service connection for osteopenia and right lower extremity DVT in August 2006 and that he was sent VCAA notice for his claim for service connection for osteopenia in September 2006.  However, it does not appear that these two documents have been associated with either the claims file or Virtual VA claims file.  Therefore, remand is necessary to associate the Veteran's August 2006 claim and September 2006 VCAA notice with his claims file.  Reasonable efforts should be undertaken to retrieve these documents, to include affording the Veteran an opportunity to provide a copy of either document.  If the September 2006 VCAA notice cannot be found, new VCAA notice should be sent to the Veteran regarding his claim for service connection for osteopenia.    

Additionally, service connection may be established for disability which is proximately due to or the result of a service-connected disability.  38 C.F.R. § 3.310(a) (2012).  Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown.  38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995).

In this case, the Veteran contends that his right lower extremity DVT is secondary to his service-connected left knee disability.  VA medical records confirm that the Veteran has received intermittent treatment for right lower extremity DVT.  On VA examination in April 2012, the Veteran was confirmed to have DVT.  After examination, the VA examiner opined that the Veteran's documented right leg deep vein thrombosis was not secondary to his service-connected post operative residuals of left knee injury.  The rationale was that medical literature did not support the notion that a remote left knee procedure that had occurred 20 years previously could cause late onset right leg DVT.  

The Board finds that although the April 2012 VA examiner provided an opinion on why the Veteran's right lower extremity DVT was not due to or the result of his service-connected left knee disability, he did not provide a medical opinion addressing whether the Veteran's right lower extremity DVT has been aggravated (permanently worsened beyond normal progress of the disorder) by his service-connected left knee disability.  Therefore, in light of the above, the Board finds that the April 2012 VA opinion is inadequate, and a new examination is required.  When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion.  Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992).

Relevant ongoing medical records should also be requested.  38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). 

Accordingly, the case is REMANDED for the following action:

1.  The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for osteopenia and right lower extremity DVT.  After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder.  Appropriate efforts must be made to obtain all available VA treatment records.  All attempts to procure records should be documented in the file.  If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file.  The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review.
 
2.  Obtain the Veteran's August 2006 claims for service connection for osteopenia and right lower extremity DVT and the September 2006 VCAA notification letter for the issue of service connection for osteopenia, and associate them with the claims file.  All attempts to procure records should be documented in the file.  If the AMC/RO cannot obtain these records, a notation to that effect should be inserted in the file.  The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit any of these documents for VA review.  If the September 2006 VCAA notification letter is not found, send the Veteran a VCAA notice letter addressing the information and evidence necessary to substantiate his claim for service connection for osteopenia as well as the information of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations.  See 38 C.F.R. § 3.159(b) (2012); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

3.  Schedule the Veteran for a VA arteries and veins examination to obtain a medical opinion as to whether his current right lower extremity DVT is possibly related to his service-connected left knee disability.  The claims file must be provided to and be reviewed by the examiner in conjunction with the examination.  Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. 

The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) current right lower extremity DVT is aggravated (permanent worsening of the underlying disability beyond natural progress) by the service-connected left knee disability.  If aggravation by a service-connected disability is found, then the examiner should quantify the degree of such aggravation, if possible.  The examiner should provide a rationale for the conclusions reached.

4.  After the development requested above, and any additional development deemed necessary has been completed to the extent possible, the record should be reviewed and the claims readjudicated.  If the benefits sought on appeal are denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto.  The case should then be returned to the Board for further appellate consideration, if in order. 

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).




______________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs