Citation Nr: 1323002 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 10-19 106 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for skin cancer, claimed as due to exposure to radiation. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1960 to August 1963. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO). In his May 2010 VA Form 9 (Substantive Appeal), the Veteran requested a videoconference hearing before the Board. In May 2010, he requested a Travel Board hearing, instead. In February 2012 correspondence, he withdrew his request for a hearing before the Board. Accordingly, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.702(d). In May 2012, the Board remanded this case for additional development, to include the issuance of a statement of the case (SOC) addressing the issues of service connection for tinnitus and skin cancer. The RO issued such SOC in December 2012. Subsequently, the Veteran's representative submitted a statement regarding these issues, which the Board finds may be reasonably construed as a substantive appeal in these issues. In April 2013, the Board obtained a Veterans Health Administration (VHA) medical advisory opinion in the matters of service connection for hearing loss and tinnitus. 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 service connection for skin cancer is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. FINDINGS OF FACT 1. It is reasonably shown that the Veteran's bilateral hearing loss disability is related to his exposure to noise trauma in service. 2. It is reasonably shown that the Veteran's tinnitus is related to his exposure to noise trauma in service. CONCLUSIONS OF LAW 1. Service connection for bilateral hearing loss is warranted. 38 U.S.C.A. §§ 1131, 1157 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. Service connection for tinnitus is warranted. 38 U.S.C.A. §§ 1131, 1157 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5013A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Inasmuch as this decision grants the appellant's claim, there is no reason to belabor the impact of the VCAA on this matter, since any notice error or duty to assist omission is harmless. Accordingly, the Board will address the merits of the claim. Legal Criteria, Factual Background, and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by active peacetime military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases (including organic diseases of the nervous system - to include sensorineural hearing loss (SNHL)) may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time postservice (one year for organic diseases of the nervous system). 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. To substantiate a claim of service connection, there must be evidence of the claimed disability; evidence of incurrence or aggravation of a disease or injury in service; and evidence of a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that it has reviewed all the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system). Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hearing Loss Hearing loss disability is defined by regulation. For the purpose 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, 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. It is also well-established in caselaw (See Hensley v. Brown, 5 Vet. App, 155 (1993)) that service connection for hearing loss is not precluded where "hearing was within normal limits on audiometric testing at separation from service." The Court's discussion cited to, and acknowledged agreement with the [VA] Secretary's assertion "that if the record shows (a) acoustic trauma in service and audiometry showing an upward shift in tested thresholds in service, though still not meeting the requirements for a 'disability' under 38 C.F.R. § 3.385, and (b) postservice audiometry showing a hearing loss disability under 38 C.F.R. § 3.385, authorities must consider whether there is a medically sound basis to attribute the postservice findings to the injury in service, or whether they are more properly attributable to intercurrent causes." The Veteran claims that he was exposed to acoustic trauma without hearing protection on a routine basis in service. He recalled one incident on the rifle range when his hearing was immediately, temporarily affected by the noise from a grenade launcher. The Veteran's service separation document (DD-214) reveals that he served in an artillery unit. On August 1960 service entrance examination and report of medical history at the time, no complaints, treatment, or diagnoses were noted regarding the Veteran's hearing. A whispered hearing test showed normal (15/15) hearing acuity. In January 1963, the Veteran was seen with otitis media of the left ear. Audiological evaluation on the Veteran's July 1963 separation examination found the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 15 (0) 10 (0) 20 (10) 20 (10) 15 (10) 10 LEFT 15 (0) 10 (0) 10 (0) 20 (10) 25 (20) 30 [Unless otherwise specified, VA audiometry on June 30, 1966 or earlier and service department audiometry on October 31, 1967 or earlier is assumed to have been reported in American Standards Association (ASA) units. To facilitate review, the ASA values have been converted to ISO-ANSI standards (and the latter are the numerical values not in parentheses in the chart above; the numerical values in parentheses are the ASA values then reported.]. On February 2009 VA audiological assessment, the Veteran reported a history of military noise exposure while in an artillery unit (during which time hearing protection was not used consistently). He also reported postservice occupational noise exposure while working in a machine shop and as a mechanic, without hearing protection. Audiometry showed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 45 50 70 75 90 LEFT 50 50 80 80 85 Speech audiometry revealed speech recognition ability of 84 percent in each ear. The diagnosis was bilateral sensorineural hearing loss, mild to profound in the right ear and moderate to profound in the left ear. Subsequent VA treatment records show the Veteran was fitted for hearing aids. In March 2010, a VA audiologist who reviewed the record noted that "No hearing loss was present for any [emphasis added] hearing test frequencies at separation," and concluded that consequently, the Veteran's current hearing loss is less likely as not caused by or a result of his military noise exposure. Because this opinion does not acknowledge the [post-conversion] finding of a 30 decibel puretone threshold at 6000 Hz (at separation), and suggests that the provider was unaware that the July 1963 audiometry in service was under ASA standards (requiring conversion to current ISO values), the Board found it inadequate and sought a VHA medical advisory opinion. The VHA opinion received in June 2013 is by a Chief of Audiology and Speech Pathology Service. The expert noted that the pattern of hearing documented on the discharge examination is consistent with noise exposure. She concluded that current bilateral hearing loss is at least as likely as not related to the Veteran's active duty service. The expert further noted that the Veteran's complaints of bilateral tinnitus are consistent with the hearing loss and the history of military noise exposure. Accordingly, tinnitus is also at least as likely as not related to his active duty service. It is not in dispute that the Veteran now has a bilateral hearing loss disability by VA standards, as such is shown by official audiometry. Based on his service in an artillery unit it is also reasonably shown that he likely was exposed to hazardous level noises in service. What he still must show to establish service connection for his bilateral hearing loss is that it is related to his service/noise trauma therein. The competent (medical) evidence in the record that directly addresses the matter of a nexus between the Veteran's hearing loss and his service consists of the March 2010 VA examiner's opinion and that by the VHA expert in June 2013. The Board had found the March 2010 opinion inadequate (for reasons noted above). The VHA expert related the Veteran's hearing loss disability to his service. The opinion is accompanied by explanation of rationale with citation to factual data, and the Board finds it persuasive. In summary pertinent and probative evidence shows that the Veteran has bilateral hearing loss disability; that he was exposed to noise trauma in service; and that competent evidence (a VA expert's opinion) relates his hearing loss to his service. All of the requirements for establishing service connection are met. Service connection for bilateral hearing loss disability is warranted. Tinnitus As tinnitus is a disability capable of lay observation (see Charles v. Principi, 16 Vet. App. 370, 374) (2002)), and it has been reported by the Veteran and acknowledged by VA, it is shown that the Veteran has tinnitus. What remains necessary to establish service connection for the tinnitus is evidence of a nexus between such disability and the Veteran's service/exposure to noise trauma therein. As was noted above, the Board found the March 2010 VA audiologist's opinion inadequate, and sought a VA expert's advisory opinion in this matter. The June 2013 VHA expert's opinion indicates, in essence, that the Veteran's tinnitus is indeed related to his hearing loss and to the noise trauma in service. The expert explained the rationale for the opinion. The Board finds no reason to question the VHA expert's opinion. Accordingly, the Board finds that the requirements for establishing service connection for tinnitus are also met, and that service connection for tinnitus is warranted. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. REMAND The Veteran claims entitlement to service connection for skin cancer, as due to exposure to radiation from missile silos in Texas. Service connection for a disability based on ionizing radiation exposure during service may be established in one of three ways: (a) presumptively service connected under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d) for radiation-exposed Veterans, (b) directly service connected after specified development procedures are conducted under the special framework of 38 C.F.R. § 3.311 if the claimed condition is a radiogenic disease, or (c) directly service connected by showing that the disease was incurred in, or aggravated by, service. A "radiation-exposed Veteran" is defined by 38 C.F.R. § 3.309(d)(3) as a Veteran who while serving on active duty or on active duty for training or inactive duty training, participated in a radiation-risk activity. The term "radiation-risk activity" includes (1) on-site participation in a test involving the atmospheric detonation of a nuclear device; (2) the occupation of Hiroshima or Nagasaki, Japan, during the period beginning on August 6, 1945, and ending on July 1, 1946; (3) internment as a prisoner of war of Japan during World War II resulting in an opportunity for exposure to radiation comparable to those occupying Hiroshima or Nagasaki; and (4) certain service on the grounds of a gaseous diffusion plant in Paducah, Kentucky, Portsmouth, Ohio, or at area K25 at Oak Ridge, Tennessee; or certain service on Amchitka Island, Alaska. See 38 U.S.C.A. § 1112(c)(3)(B); 38 C.F.R. § 3.309(d)(3)(ii). A Veteran is entitled to special development under 38 C.F.R. § 3.311 if such Veteran has a radiogenic disease as listed under 38 C.F.R. § 3.311(b)(2)(i)-(xxiv), and the disease manifested during certain specified periods as defined under 38 C.F.R. § 3.311(b)(5) (skin cancer is listed as a radiogenic disease and must become manifest 5 years or more after exposure.) The Veteran's skin cancer satisfies 38 C.F.R. § 3.311(b)(5). As the Veteran does not claim that his exposure was from atmospheric nuclear weapons test participation or the occupation of Hiroshima and Nagasaki, the development required here falls under 38 C.F.R. § 3.311(a)(2)(iii). Under § 3.311(a)(2)(iii) a request must be made for any available records concerning the Veteran's exposure to radiation, which includes (but is not limited to) any DD Form 1141 (that is, Record of Occupational Exposure to Ionizing Radiation) and other records which may contain information pertaining to the Veteran's radiation dose exposure in service. All records are then to be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible. After such development, if it is determined that the Veteran was exposed to ionizing radiation and as he subsequently developed skin cancer after service, the claim should be forwarded to the Under Secretary for Benefits for consideration of the claim. The Under Secretary for Benefits, after a consideration of the factors of the case, may then request an advisory medical opinion from the Under Secretary for Health. Notably, in February 2008 the Veteran was provided a Radiation Risk Activity Information sheet for completion. As such information is critical for proper development of his claim under his asserted theory of entitlement (and he appears to have been unaware of its critical nature) he should be offered another opportunity to provide a full description of the circumstances of, and his duties and activities during, his participation in a radiation-risk activity. He should be advised that further development cannot proceed without his response. If he responds adequately the RO should arrange for the further development outlined in the guidelines noted above. Additionally, postservice treatment records beginning in 1998 include a diagnosis of (recurrent) metastatic squamous cell carcinoma of the skin. The Veteran was treated with radiation therapy. A February 2006 record notes there was no evidence of recurrence since 2002. A review of the claims file found that the most recent private treatment records in evidence are from February 2006. Records of any current treatment (showing a current diagnosis) are pertinent (and perhaps critical) evidence as to the Veteran's claim for service connection for skin cancer. Accordingly, further development for such records is necessary. The case is REMANDED for the following: (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 should ask the Veteran to identify the provider(s) of any (and all) treatment or evaluation he has received for skin cancer since February 2006. In particular, he must identify and provide releases for records from any current provider(s) of treatment. The RO should obtain complete clinical records of all such treatment and evaluations from the identified sources. If any private provider does not respond to the RO's request for records identified, the Veteran should be so advised and reminded that ultimately it is his responsibility to ensure such records are received. 2. The RO should send the Veteran another Radiation Risk Activity Information sheet, reminding him that completion of the form is critical to development of his claim. If he responds, the RO should then process the skin cancer claim in accordance with the guidelines in 38 C.F.R. § 3.311(a)(2)(iii), and 38 C.F.R. § 3.311(c). 3. If the benefit sought is not granted based on the development under # (2), above, the RO should arrange for the Veteran's claims file to be forwarded to an oncologist for review and an advisory medical opinion. Based on a review of the record, the consulting physician should offer opinions responding to the following: Based on a review of the factual evidence of record, what is the most likely etiology for the Veteran's skin cancer? Specifically, is it at least as likely as not (a 50 percent or greater probability) that the skin cancers were incurred in or aggravated by his active service? . If the skin cancer is determined to not be related to the Veteran's service, please identify the etiological factors considered more likely. 4. The RO should then review the record and readjudicate this claim. If it remains denied, the RO should issue an appropriate supplemental SOC and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board for further 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 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). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs