Citation Nr: 1324118 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 10-11 605 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from April 1981 to April 1984, from March 1988 to July 1988, and from January 1991 to April 1991. The Veteran also spent time in the Army National Guard (ARNG) and performed active duty for training (ACDUTRA) and/or inactive duty for training (INACDUTRA) at various times in connection with his ARNG membership. This case was previously before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Chicago, Illinois, Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of the claim was subsequently transferred to the St. Petersburg, Florida RO. The case was remanded by the Board in April 2012. The Veteran testified before the undersigned Veterans Law Judge at a travel Board hearing at the RO in February 2012. A transcript of the hearing has been associated with the claims file. 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 right knee disability addressed in the REMAND portion of the decision below requires additional processing and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Resolving all doubt in the Veteran's favor, the Veteran has bilateral hearing loss disability that is related to his active military service. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, bilateral hearing loss was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In view of the favorable outcome of the issue decided herein, compliance with the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) need not be discussed. The Board notes that it has reviewed all of the evidence of record, to include in the Veteran's claims file and the Virtual VA file (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, 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. When there is an approximate balance in the 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. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the U. S. Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The term "active military, naval, or air service" includes: (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty, or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 U.S.C.A. § 101(2), (24); 38 C.F.R. § 3.6(a) ACDUTRA includes full-time duty in the Armed Forces performed by Reserves for training purposes. 38 C.F.R. § 3.6(c). INACDUTRA includes duty (other than full-time duty) prescribed for Reserves. 38 C.F.R. § 3.6(d). Presumptive periods do not apply to ACDUTRA or INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Service connection may be presumed for certain chronic diseases, such as sensorineural hearing loss as an organic disease of the nervous system, which develop to a compensable degree (10 percent for an organic disease of the nervous system) within a prescribed period after discharge from service (one year for an organic disease of the nervous system), although there is no evidence of such disease during the period of service. This presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Also, while the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree. 38 C.F.R. § 3.307(c). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit recently clarified that the law providing for awards of service connection on the basis of continuity of symptomatology is limited to "chronic" diseases (such as sensorineural hearing loss as an organic disease of the nervous system) listed under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). To establish the existence of a current hearing loss disability for which service connection may be granted, at least one of the threshold pure tone levels at 500, 1000, 2000, 3000, or 4000 Hertz, must measure 40 decibels or greater; at least three of these five threshold levels must measure more than 25 decibels; or speech recognition using the Maryland CNC test must be lower than 94 percent. 38 C.F.R. § 3.385. The laws and regulations do not require in service complaints of or treatment for hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, as noted by the United States Court of Appeals for Veterans Claims (Court): [W]here the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385 . . . For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a brief of the VA Secretary). The Veteran contends he has bilateral hearing loss as a result of in-service acoustic trauma. He specifically asserts, and as indicated in an April 2012 Board decision issued simultaneously with the remand at that time, that he was attached to an Armor Tank Company throughout most of his service and exposed to excessive tank and weaponry noise as a result. The Veteran also reports exposure to gunfire noise while serving in the Gulf in the 1990's. The Veteran's VA Form DD 214 establishes that he was attached to an armored division (3rd Battalion 66th Armor, 2nd Armored Division), from April 1980, to April 1984, and his military occupational specialty (MOS) was that of an Abrams Armor Crewman. From January 1991 to April 1991, the Veteran's VA Form DD 214 reflects that his MOS was that of practical nurse. During this time, the Veteran has reported that his unit (the 94th Gen. Hospital, Reserve Detachment 1) was deployed to the U.S. Army Hospital in Bremerhaven, Germany, in support of Operation Desert Storm/Desert Shield where he acted as a medic. He has testified that he was exposed to gunfire/missile noise in conjunction numerous Medevac operations from Germany to Kuwait. See also Stressor Statement, February 1991. From the above, exposure to acoustic trauma in service is presumed. The service treatment reports, to include the reports from the March 1991 separation examination and medical history collected at that time, are negative for hearing loss. As noted above, however, this is not fatal to the claim. Ledford, Hensley, supra. The post service evidence includes a January 2004 VA audiometric report demonstrating that the Veteran's speech discrimination was at 72 percent in the right ear and 76 percent in the left ear. In this regard, the Veteran's wife testified that the Veteran has difficulty hearing her, forcing her to repeat what she says to him multiple times. February 15, 2012, hearing transcript, page 16). The January 2004 speech discrimination results represent bilateral hearing loss disability as defined by 38 C.F.R. § 3.385 as the score in each ear is less than 94 percent. The Board recognizes that at the February 2008 VA audiological examination, the audiometric findings were inconsistent and the VA examiner was not able to confirm or deny hearing loss, and that the December 2012 VA audiological examination afforded the Veteran pursuant to the Board remand did not result in findings indicative of hearing loss under 38 C.F.R. § 3.385 (although elevated readings were shown in some of the higher frequencies.) However, the Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). While the January 2004 VA audiometric report predates the January 2007 claim, given the finding of hearing loss disability for VA benefits purposes therein; the elevated thresholds shown at the December 2012 audiometric testing; and the contentions of the Veteran, to include in sworn testimony, describing current hearing loss (which the Veteran is competent to assert - see Barr, Charles, supra) the Board finds, after resolving all reasonable doubt in favor of the Veteran and analogizing to the holding in McClain, that current bilateral hearing loss disability is demonstrated. While the December 2012 VA examination resulted in the opinion that the Veteran did not have hearing loss as a result of service, the principle rationale for this opinion (even this examiner conceded, as noted by the Veteran's representative in his June 2013 presentation to the Board, that "delayed onset" hearing loss was not ruled out in the study referenced by him) was that the service treatment reports did not reflect hearing loss, a rationale found by the Court to be inadequate. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where the examiner did not comment on Veteran's report of in-service injury and relied on lack of evidence in service medical records to provide negative opinion). Moreover and as previously stated, the Court has specifically held that silent service treatment reports for hearing loss are not fatal to a claim for service connection. Ledford, Hensley, supra. Where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by the Veteran's service record, the official history of each organization in which the Veteran served, the Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). The Veteran has consistently described his noise exposure throughout the record, personnel records confirm his duties involving armored vehicles, and his exposure to acoustic trauma in service has been presumed as it consistent with the types and circumstances surrounding. Moreover, his assertions as to continuing problems with hearing loss from service have been supported by sworn testimony from the Veteran's wife. As such, the Board finds these assertions to be credible given the circumstances of his service. 38 U.S.C.A. § 1154(a). The Veteran is also competent to assert that he has had problems with hearing loss since service. Barr, Davidson, Kahana, supra. Unless the preponderance of the evidence is against a claim, it cannot be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. From the above, it cannot be said that the preponderance of the evidence is against the claim; as such, all reasonable doubt has been resolved in the Veteran's favor, and service connection for bilateral hearing loss is warranted. Id. ORDER Entitlement to service connection for bilateral hearing loss is granted. REMAND With regard to the claim for service connection for a right knee disability, as the record reflects that the June 2013 supplemental statement of the case (SSOC) that would have informed the Veteran of the evidence considered in the adjudication of this claim, and the rationale for the denial of the claim, was returned as undeliverable, there is a question as to whether there the duty to notify has been fulfilled such that Veteran many have been denied due process. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). It appears from a review of recent correspondence sent to the Veteran at a different address that was not returned as undeliverable that the SSOC may not have been mailed to the proper address. As such, the RO will be directed upon remand to, should the claim remand denied, mail the Veteran an SSOC at this alternate, or any more recent, address. This delay in the adjudication of the Veteran's claim will also afford the RO one more opportunity to obtain any additional pertinent records that may be beneficial to the adjudication of the Veteran's claim for service connection for a right knee 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. Obtain all outstanding VA clinical records pertaining to treatment of the right knee. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim for service connection for a right knee disability. 3. If the Veteran responds, assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. When the development requested, or any other indicated development, has been completed, the claim for service connection for a right knee disability should be readjudicated by the RO. If the benefits sought in connection with claim are not granted, the Veteran and his representative should be furnished an SSOC and be afforded a reasonable opportunity to respond before the claim is returned to the Board for further review. With regard to the mailing of the SSOC to the Veteran, mail the SSOC to his address in Saint Cloud, FL [or any more recent address provided by the Veteran] rather than his address in Orlando, FL. 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