Citation Nr: 1324919	
Decision Date: 08/06/13    Archive Date: 08/13/13

DOCKET NO.  11-12 709	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1. Entitlement to an initial disability rating higher than 10 percent for degenerative arthritis of the left knee.

2. Entitlement to service connection for bilateral hearing loss disability.

3. Entitlement to service connection for a lumbar spine disability.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

Cheryl E. Handy, Associate Counsel


INTRODUCTION

The Veteran, who is the appellant, served on active duty from March 1977 to March 1980.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in February 2011 of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

The issue of entitlement to service connection for a low back disability is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C.  The Veteran will be notified if any further action on his part is required.


FINDINGS OF FACT

1. In July 2013, prior to the promulgation of a decision in the appeal, the Board received written notification from the Veteran that he wished to withdraw his appeal of entitlement to a disability rating higher than 10 percent for degenerative arthritis of the left knee.

2. The Veteran's current left ear hearing loss was shown on examination when he was accepted into service, but underwent a permanent increase during his period of active service.

3. The Veteran's current right ear hearing loss had its onset in service.


CONCLUSIONS OF LAW

1. The criteria for withdrawal of the appeal of the issue of entitlement to an initial disability rating higher than 10 percent for degenerative arthritis of the left knee have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012).

2. The criteria for service connection for bilateral hearing loss disability have been met.  38 U.S.C.A. §§ 1111, 1131, 1137, 1153, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.306, 3.385 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  In this instance, VCAA compliance is immaterial with respect to the claim for increased disability rating withdrawn below.  With respect to the claim of service connection for bilateral hearing loss disability, inasmuch as this decision grants the benefit sought on appeal, any notice error or duty to assist failure as to this claim is harmless.


The Claim Withdrawn

A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision.  Withdrawal of a substantive appeal may be made by the Veteran.  38 C.F.R. § 20.204.

In a letter submitted in July 2013, the Veteran withdrew his appeal with regard to entitlement to an initial disability rating higher than 10 percent for degenerative arthritis of the left knee.

As there remains no allegation of error of fact or law for appellate consideration with respect to this claim, the Board does not have appellate jurisdiction to review it.  38 U.S.C.A. § 7105.



Principles of Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1131.  Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service.  This may be accomplished by affirmatively showing inception or aggravation during service.  38 C.F.R. § 3.303(a).

Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  All three elements must be established by competent and credible evidence in order that service connection may be granted.

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).

Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service; but aggravation is presumed where there was an increase in the disability during service.  38 U.S.C.A. 1153; 38 C.F.R. 3.306(b).

In Hensley v. Brown, 5 Vet. App. 155 (1993), the Court held that the threshold for normal hearing was from 0 to 20 decibels, and that higher threshold levels indicated some degree of hearing loss.  Hensley, 5 Vet. App. at 157.  The auditory thresholds set forth in 38 C.F.R. § 3.385 establish when hearing loss is severe enough to be a disability.  Id. at 159.

Hearing loss disability is defined by regulation.  For the purpose of applying the laws administered by VA, impaired hearing will be considered 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.

Evidentiary Standards 

VA must give due consideration to all pertinent medical and lay evidence in a case where a Veteran is seeking service connection.  38 U.S.C.A. § 1154(a).  

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159.

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion.  38 C.F.R. § 3.159.

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  A Veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses.  Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). 

When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran.  38 U.S.C.A. § 5107(b). 

Facts

The Veteran's service treatment records show that on his service entrance examination in December 1976, he had pure tone thresholds, in decibels, of:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
10
--
30
LEFT
15
15
20
--
65

An audiology examination in October 1978, revealed the following pure tone thresholds:





HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
10
20
30
LEFT
10
15
20
45
60

In November 1978, the Veteran complained of difficulty hearing and was found to have wax build up.

No audiometric examination or testing results from the Veteran's service separation examination are present in the record. 


After service separation, the Veteran was seen by a private audiologist in October 1981 for complaints of difficulty hearing.  The testing showed the following pure tone thresholds:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
10
5
10
50
LEFT
5
5
20
55
75

The provider offered the opinion that the Veteran's high frequency hearing loss was probably present when he was previously discharged from military service.

The Veteran was provided with a VA examination in November 2010 in relation to his claim of service connection for bilateral hearing loss disability.  At that time, the examiner noted that the Veteran had hearing loss, greater in his left ear than his right, at the time of enlistment, which was shown again on a 1978 audiogram.  The Veteran reported noise exposure in service mainly because of his infantry duties, to include small arms and mortar fire, without any hearing protection.  On examination, his pure tone thresholds were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
10
10
50
80
LEFT
15
25
50
85
90

Speech recognition scores were 96 percent in the right ear and 88 percent in the left ear.  The examiner noted severe sensorineural hearing loss in both ears, but stated that without an audiogram from service separation, he could not offer an opinion regarding whether the pre-existing hearing loss was worsened in service without resorting to speculation.

Analysis

The evidence shows that the Veteran has a current hearing loss disability, as documented most recently on the November 2010 VA examination.  He has provided a history of noise exposure in service, a matter on which he is competent to provide evidence, and such noise exposure is supported by the notation on his DD Form 214 showing expert marksmanship qualifications in service and an infantry military occupational specialty (MOS).

The question before the Board is whether the Veteran's current hearing loss disability was caused or aggravated by the in-service noise exposure.  In this instance, the question is complicated by the fact that audiometric testing at the time of service entrance showed a pre-existing hearing loss disability, in the left ear as defined by VA.  38 C.F.R. § 3.385 (2012).  Although the VA examiner interpreted the testing as showing hearing loss in both ears, the findings on the right did not show hearing loss disability as defined by VA.  Id.; cf. Hensley v. Brown, 5 Vet. App. 155 (1993) (holding that a 20 decibel loss could be indicative of some hearing loss, if not a hearing loss disability for VA purposes).  

While this is clear and unmistakable evidence of a pre-existing disability on the left, it is not clear and unmistakable evidence with regard to the right.

The interim audiogram in October 1978 showed readings virtually identical to those recorded at service entrance.  However, the record does not contain a service separation examination or any audiometric testing for the remaining two years of the Veteran's service.  The Veteran's initial complaints with regard to his hearing were recorded in service and initial post-service audiogram in October 1981, shows that there was significant deterioration in the Veteran's hearing in higher frequencies from what was reported at service entrance.

Notably, the Veteran has stated that he was rejected for reenlistment some six month after separation because of the severity of his hearing loss.  While the record does not contain an official record of this, the audiogram from October 1981, a little more than one year after service shows an increase in the Veteran's hearing loss disability and is accompanied by an opinion stating that the demonstrated hearing loss was present at the time of service separation.

In sum the evidence is in at least equipoise on the questions of whether the Veteran's pre-existing left ear hearing loss was aggravated in service, and whether the right ear hearing loss was incurred in service.  By law, when the evidence is in equipoise, the benefit of the doubt is given to the Veteran and the claim is allowed.  38 U.S.C.A. § 5107(b).


ORDER

The appeal of the claim of entitlement to a disability rating higher than 10 percent for degenerative arthritis of the left knee is dismissed.

Entitlement to service connection for bilateral hearing loss disability is granted.


REMAND

The Veteran has stated that he was treated for back problems on two occasions while stationed at Camp Liberty Bell, a DMZ observation post in Korea.  Inasmuch as treatment records from military hospitals may be maintained separate of service treatment records by federal records custodians, additional efforts should be made to obtain any such records as part of VA's duty to assist.

The record includes competent evidence of a current back disability, the Veteran's competent reports of an in-service injury and his reports of ongoing symptoms.  An examination is needed to determine whether he has a current back disability that may be related to service.  38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet App 79 (2006).

Accordingly, this matter is REMANDED for the following actions:

1. Ask the appropriate federal records custodian to provide any additional records pertaining to the Veteran's medical treatment from the facility at Camp Liberty Bell in Korea for the year 1978.
 
Efforts to obtain these records must continue until they are obtained, unless it is reasonably certain that they do not exist or that further efforts would be futile.

If, any requested records cannot be obtained, the Veteran and his representative should be so advised and informed of the efforts made to obtain the records and of any further actions that will be taken with regard to the claim.

2. After any outstanding records have been obtained, arrange for an examination to determine whether it is at least as likely as not that any current low back disability at least as likely as not (probability 50 percent or greater) had its onset in service or is otherwise the result of a disease or injury in service.

The examiner should provide the rationale for the opinion.  The claims file should be provided to the examiner for review.

3. If the decision remains adverse to the Veteran, then issue a supplemental statement of the case and return the case to the Board, if otherwise 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).



____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs