Citation Nr: 1321789 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 08-15 075 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for residuals of a traumatic brain injury (TBI). REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2006, January 2008, and October 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. This case was remanded by the Board in February 2012 for additional development, to include requesting copies of any treatment records from the San Francisco VAMC for the period from September 1970 to December 1971, and to provide the Veteran with VA examinations to determine the current nature and etiology of any residuals of a traumatic brain injury (TBI). The San Francisco VAMC records were determined to be unavailable, and the Veteran was provided with a VA TBI examination in March 2012. As such, the Board finds that VA has substantially complied with the Board's prior remands with regard to this appeal. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). The Board notes that its February 2012 decision also remanded the issue of entitlement to service connection for a skin disability other than tinea corporis. However, service connection for actinic keratose was granted in an October 2012 rating decision. The full benefit sought on appeal has been granted with respect to this issue, and therefore, it is no longer before the Board. The issue of entitlement to service connection for right ear hearing loss 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. FINDINGS OF FACT 1. The Veteran clearly and unmistakable suffered a TBI and headaches prior to entrance into active duty. 2. The Veteran's residuals of TBI clearly and unmistakably were not aggravated by service. CONCLUSION OF LAW A TBI or residuals of TBI were not incurred in, or aggravated by, active military service. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions. See 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 (2012). A December 2005 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Moreover, the Veteran was notified of regulations pertinent to the establishment of an effective date and of the disability rating in a March 2006 letter. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The record does not reflect that the Veteran is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). A VA examination was conducted in March 2012; the record does not reflect that this examination was inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examination addressed the Veteran's medical history, to include his lay observations of symptomatology, conducted a complete physical examination, and concluded with an opinion as to the relationship between the Veteran's claimed disability and his military service. There is no indication in the record that any additional evidence relevant to the issues adjudicated in this decision is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). The Veteran seeks entitlement to service connection for a TBI. Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran initially filed his claim for headaches and entitlement to service connection for headaches has been granted and his not before the Board at this time. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012). To rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. 38 C.F.R. § 3.304(b); VAOPGCPREC 3-03, 69 Fed. Reg. 25,178 (2004); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See Cotant v. Principi, 17 Vet. App. 116 (2003). When no preexisting condition is noted upon entry into service, a veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the claimant's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability [was] due to the natural progress of the preexisting condition. 38 U.S.C. § 1153. If this burden is met, then the claimant is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under 38 U.S.C. § 1111, the claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. Wagner, 370 F.3d at 1096. Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999). It is an onerous evidentiary standard, requiring that the no-aggravation result be undebatable. Cotant, 17 Vet. App. at 131. Although the Veteran's history of a head injury was noted on the entrance examination, there were no sequelae or residuals noted. A history of a past injury, without current disability, is not a disability noted at service entrance. Crowe v. Brown, 7 Vet. App. 238, 245 (1994). Therefore, the Veteran is entitled to the presumption of soundness which must be rebutted by clear and unmistakable evidence that the disability both pre-existed service and was not aggravated by service. Wagner, 370 F.3d at 1096; 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012). After thorough review, the Board finds that the evidence is clear and unmistakable in establishing that the Veteran's TBI residuals preexisted service. As discussed there was a notation of a pre-service injury on the Veteran's entrance examination. At the March 2012 VA TBI examination, the Veteran stated that he sustained a TBI at age 6 when he was hit in the head by a piece of lumbar. He also reported a history of headaches since childhood, and indicated that these headaches developed into more severe, migraine-type headaches in approximately 1992. As such, all of the evidence of record, both that dated contemporaneously to the Veteran's military service as well as the post-service medical opinion obtained in the course of his claim, establish that the Veteran's TBI preexisted service. Indeed, the Veteran himself stated that he was afflicted with a TBI since childhood and experienced headaches related to the TBI at the time of his induction into service. See Cromer v. Nicholson, 19 Vet. App. 215 (2005). The evidence is also clear and unmistakable in establishing that the Veteran's TBI was not aggravated by service. Service treatment records did not reveal treatment for headaches during service, although the Veteran reported on his July 1970 separation examination that he had previously suffered a history of head injury as well as frequent or severe headaches. However, at the time of his March 2012 VA TBI examination, the Veteran explained that he had experienced headaches since childhood and had a history of severe TBI at age 6. Although he did have headaches while in military service, these headaches did not worsen until after his separation from military service in September 1970. Specifically, his headaches worsened in approximately 1993 due to work conditions as a meat cutter, long after his discharge from the military. As such, the examiner opined that the Veteran's headaches could not be considered to be residual to his military service. In a February 2013 addendum to his opinion, the VA examiner reiterated that no TBI occurred while the Veteran was in the military, and therefore there were no TBI residuals due to his military service. The Board notes that on the Veteran's report of medical history at entrance there was no indication of severe or frequent headaches, and on the report of medical history at separation there was such an indication. However, these headaches were attributed to other causes in service, specifically nervousness, and entitlement to service connection has been granted for headaches. Based on the Veteran's statements at the March 2012 VA examination, the residuals of his TBI did not worsen in service. Aggravation does not exist when there is a temporary worsening in symptoms, but the condition itself does not worsen, and the evidence does not establish a worsening of the preexisting condition. Hunt v. Derwinski, 1 Vet. App. 292 (1991). As discussed, the Veteran's residuals of TBI were clearly and unmistakable present prior to service. There was no indication of permanent aggravation or worsening of the disability due to in-service activities. Again, the only evidence that the preexisting condition was aggravated by military service is the Veteran's own argument. The determination of whether the Veteran's in-service headaches represented a permanent worsening of his TBI residuals is not capable of lay observation, but rather required medical expertise to determine. Here, the record contains a negative medical opinion with supporting rationale. As a layperson, the Veteran is competent to describe symptoms that come to him through his five sense, but is not competent to attribute them to a particular etiology or offer a competent opinion on a medical question such as aggravation of a preexisting disability. See Jandreau v. Nicholson, 492 F.3d. 1372 (Fed. Cir. 2007). The evidence clearly and unmistakable demonstrates that the Veteran's residuals of TBI pre-existed service and clearly and unmistakably were not aggravated by service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012); Wagner, 370 F.3d at 1096. ORDER Entitlement to service connection for residuals of TBI is denied. REMAND Service connection for sensorineural hearing loss may be granted if such disease is manifested in service, or manifested to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Impaired hearing is considered a disability for VA purposes 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. At the preenlistment examination in August 1967, speech audiometry was not tested, but puretone thresholds, in decibels, were as follows (results below are in ISO (ANSI) units, converted from the original document's ASA units): HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 0 N/A -5 LEFT 10 5 0 N/A 0 At the November 1967 flight physical during service, speech audiometry was not tested, but puretone thresholds, in decibels, were as follows (results below are in ISO (ANSI) units, converted from the original document's ASA units): HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 5 0 LEFT 15 5 10 10 -5 At the June 1969 annual physical during service, speech audiometry was not tested, but puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 45 35 35 45 LEFT 15 10 0 15 0 At the March 1970 annual physical examination during service, speech audiometry was not tested, but puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 15 15 15 LEFT 5 10 10 15 10 At July 1970 service separation examination, speech audiometry was not tested, but puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 5 5 N/A 10 LEFT 0 5 5 N/A 10 Thus, significantly, the June 1969 annual physical clearly demonstrated hearing loss for VA purposes in the right ear while the Veteran was still in service. At a March 2007 VA examination, the Veteran reported a history of military noise exposure to include repairing and flying helicopters in Vietnam for 1 year, and in Europe for 18 months. He reported post-service noise exposure of being a grocery store meat cutter for 31 years, and having recreationally hunted prior to his Vietnam service. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 100 percent in the left ear; puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 10 35 60 LEFT 15 10 10 20 20 Again, the evidence of record reflects that the Veteran has a current diagnosis of right ear hearing loss for VA purposes. The March 2007 VA examiner assessed normal hearing in the right ear through 2000 Hertz with a mild-to-moderate sensorineural hearing loss from 3000 Hertz through 8000 Hertz. However, the March 2007 VA examiner went on to opine that the Veteran's records suggested that his present hearing loss occurred after leaving service and was not caused by in-service noise exposure. In support of this conclusion, the examiner cited the September 1967 hearing test at enlistment which showed normal hearing in both ears. The examiner also cited the March 1970 hearing test which showed normal hearing in both ears, and, although there was no hearing test available at the Veteran's discharge from service in September 1970, the examiner indicated that it would be unlikely to have any change in hearing acuity in the 6 months from March 1970 to September 1970. As such, the examiner concluded that the Veteran's service treatment records did not support his claim of service connected hearing loss. However, the March 2007 VA examiner did not mention the hearing acuity documented on the Veteran's June 1969 annual physical, which demonstrated in-service hearing loss for VA purposes in the right ear. Thus, the Board finds the March 2007 fee-based VA audiological examination to be inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (finding that if VA provides the Veteran with an examination in a service connection claim, the examination must be adequate); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Forward the Veteran's claims file to the examiner who conducted the Veteran's March 2007 audiological examination and ask that an addendum opinion be provided. Specifically, after a review of the entire evidence of record, and with specific consideration of the June 1969 in-service audiological examination showing hearing disability, the examiner must render an opinion, in light of the service and post service evidence of record, as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current right ear hearing loss is related to the Veteran's period of military service from September 1967 to September 1970, or to any incident therein, to include as due to aircraft noise exposure. The Veteran's military occupational specialty, the objective medical findings in the service medical records, the previous VA audiological evaluation currently of record, the Veteran's history of in-service and post service noise exposure, and any other pertinent clinical findings of record, must be taken into account. Importantly, the examiner must make reference to the June 1969 hearing acuity findings, and not base the required opinion solely on whether right ear hearing loss was shown in service or on service separation. The examiner must specifically address the question of whether any degree of current right ear hearing loss is a result of his military service or to any incident therein, to include as a result of in-service noise exposure, including consideration of any upward shift in tested thresholds in service. A complete rationale for all opinions must be provided. If the March 2007 VA examiner is unavailable, forward the Veteran's claims file to another VA examiner of the appropriate expertise in audiology for the requested opinion. After review of the claims file and a copy of this remand, the examiner is asked to opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's currently diagnosed right ear hearing loss is caused by or otherwise related to his military service, to include aircraft noise exposure. 2. 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 on appeal 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 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). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs