Citation Nr: 1328608 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 09-33 331 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for porphyria cutanea tarda (PCT), claimed as skin lesions, to include as due to herbicide (Agent Orange) exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran served on active duty from July 1968 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which denied claims of entitlement to service connection for posttraumatic stress disorder, a heart condition, bilateral hearing loss, tinnitus, porphyria cutanea tarda, and non-service connected pension. The Veteran submitted a Notice of Disagreement in December 2008; a Statement of the Case was issued in August 2009; and a substantive appeal was submitted in September 2009. In October 2010, the RO granted the Veteran's claims for non-service connected pension benefits and service connection for a heart condition; in November 2011, the RO granted the Veteran's claims for service connection for left ear hearing loss and tinnitus; and in April 2013, the RO granted the Veteran's claim for service connection for PTSD. Therefore, the only remaining issues on appeal are entitlement to service connection for right ear hearing loss and PCT. The Veteran testified before a Decision Review Officer in February 2010; a transcript of that proceeding has been associated with the claims file. The issue of entitlement to service connection for PCT, to include as due to Agent Orange exposure, 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 The Veteran's right ear hearing loss was caused by acoustic trauma during active service. CONCLUSION OF LAW Right ear hearing loss was incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 1. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) requires VA 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, 3.326(a)(2012). VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim. VA will inform the Veteran of the type of information and evidence that VA will seek to provide, and of the type of information and evidence, the claimant is expected to provide. 38 C.F.R. § 3.159(b). In view of the Board's favorable decision to grant service connection for right ear hearing loss in the analysis below, any further discussion as to any lapses in duties to assist and notify would not serve any useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). II. Legal Criteria - Service connection-general criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). In addition, certain chronic diseases, including "[o]ther organic diseases of the nervous system," such as sensorineural hearing loss, may be presumed to have been incurred during service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309; see also 67 Fed. Reg. 67792-67793 (Nov. 7, 2002). In this case, the presumption does not apply because there is no medical evidence that the Veteran had right ear hearing loss to a compensable degree within one year of service discharge in July 1970. See 38 C.F.R. §§ 3.307, 3.309. The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). However, the Federal Circuit recently held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a), such as sensorineural hearing loss. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. Hearing loss criteria 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 at 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies at 500, 1,000, 2,000, 3,000 and 4,000 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. 38 C.F.R § 3.385 does not preclude service connection for a current hearing loss disability where hearing was within normal limits on audiometric testing at separation from service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, when audiometric test results at a veteran's separation from service do not meet the requirements of 38 C.F.R. § 3.385, a Veteran may nevertheless establish service connection for current hearing disability by submitting medical evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Where the requirements for hearing loss disability pursuant to 38 C.F.R. § 3.385 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. Hensley, 5 Vet. App at 155. If the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflect an upward shift in tested thresholds while 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 which meet the requirements of 38 C.F.R. § 3.385, then the rating authorities must consider whether there is a medically sound basis to attribute the post service findings to the injury in service, or whether these findings are more properly attributable to intervening causes. Id., at 159. III. Analysis - Right Ear Hearing Loss The Veteran seeks service connection for right ear hearing loss. He specifically contends that he was exposed to acoustic trauma, including grenade explosions, artillery fire, mortars, and aircraft/helicopter noise while serving in combat in the Republic of Vietnam (RVN). See Hearing Transcript, generally. Personnel records confirm that he is a recipient of the Combat Infantryman's Badge (CIB); therefore, his account of his exposure to acoustic trauma is credible and entirely consistent with the circumstances of his service. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2012). As a combat veteran, he is entitled to have his statements accepted. Having determined that the Veteran was likely exposed to acoustic trauma during his service, the remaining questions before the Board are: (1) whether the Veteran has a current diagnosis of right ear hearing loss for which service connection may be granted; and (2) whether a nexus between that hearing loss and service exists. The Board initially notes that service treatment records are silent as to complaints, treatment, or diagnoses relating to hearing loss. The Veteran's hearing was normal at both pre-induction examination and separation examination, although a threshold shift at 500 Hz (i.e., 5 dB at pre-induction to 15 dB at separation) was demonstrated. However, there is no medical evidence suggesting that right ear hearing loss was manifested within the one-year presumptive period after service. In November 2011, the RO granted service connection for left ear hearing loss (and tinnitus) based upon a May 2010 VA audiological examination and opinion which found that that the threshold shifts documented in the Veteran's service treatment records (i.e., a "significant" 10 dB threshold shift at 500 Hz in the right ear, from his February 1968 pre-induction examination to his July 1970 separation examination) were at least as likely as not representative of the beginning of the current hearing loss. The May 2010 VA examiner also opined that it was at least as likely as not that the reported military acoustic trauma resulted in the currently diagnosed hearing loss. This was true for both the right and left ear. At the time of the May 2010 VA examination, however, only the Veteran's left ear hearing loss met VA's requirements for impaired hearing under 38 C.F.R. § 3.385. In other words, audiometric test results and speech recognitions scores showed that he did not have sufficient hearing loss in this other ear (right ear) to be considered a ratable disability for VA compensation purposes according to the threshold minimum requirements of 38 C.F.R. § 3.385. However, the Veteran also underwent a VA audiological examination in June 2008, at which time he demonstrated a 92 percent speech recognition score (Maryland CNC) in the right ear. This finding meets VA's requirements for a disability due to impaired hearing under 38 C.F.R. § 3.385 (i.e., where speech recognition scores are 94 percent or less). As such, the Board finds that the Veteran has suffered from right ear hearing loss during the appeal period, specifically, as shown on June 2008 VA examination. The Board notes that his hearing loss per speech recognition scores was less apparent on the subsequent examination, 94 percent rather than 92 percent. Nevertheless, because he was shown to suffer from right ear hearing loss during the appeal period, service connection for that disability must be considered. See McLain v. Nicholson, 21 Vet. App. 319 (2007). Having determined that the Veteran suffered from, or has suffered from, right ear hearing loss during the pendency of the appeal, the question before the Board is whether that hearing loss was caused or aggravated by his service. The Board finds that the weight of the credible evidence supports a finding that his right ear hearing loss was caused or aggravated by his service. In so finding, the Board assigns great probative value to the May 2010 VA opinion finding in favor of the Veteran because that opinion is accompanied by a thoroughly explained rationale. In addition, the opinion takes into account a careful review of the Veteran's service treatment records which did in fact show a significant decrease in hearing loss at 500 Hz, a finding that was supported by recent research to show an onset of hearing loss. The 2010 examiner also expressly considered the Veteran's credible combat experience and accompanying noise exposure, as well as his reports of post-service occupational noise exposure with the use of hearing protection. For all of these reasons, the Board finds the May 2010 VA opinion to be highly probative. The Board acknowledges that the June 2008 VA examiner opined that the Veteran's threshold shift did not begin in the military, thereby suggesting that his hearing loss was not related to service. However, the June 2008 examiner did not to take into account, and certainly did not discuss, the Veteran's in-service combat exposure; nor did he discuss why the right ear hearing loss shown on separation examination was not indicative of the onset of hearing loss. The Board cannot place weight on this opinion because it is contradictory to the hearing loss shown on separation examination and credible evidence of combat noise exposure. Therefore, when weighing the evidence, the Board finds in favor of the Veteran. In this case, there is evidence of a disability during the appeal period and the competent and probative VA opinion found that it was at least as likely as not that his right ear hearing loss was caused by acoustic trauma in-service. Accordingly, service connection for right ear hearing loss is granted. ORDER Entitlement to service connection for right ear hearing loss is granted. REMAND Service Connection - Porphyria Cutanea Tarda (PCT) The Board finds it necessary to remand this claim for the RO/AMC to arrange a VA compensation examination to obtain a medical nexus opinion regarding the nature and etiology of his current skin disorder. The Veteran contends his skin disorder is attributable to Agent Orange and/or other herbicide exposure in the Vietnam War. A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, is presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). Certain diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. 38 U.S.C.A. § 1116(a)(1) ; 38 C.F.R. § 3.307(a)(6). PCT (porphyria cutanea tarda) is a disease associated with herbicide exposure for purposes of the presumption. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. 3.309(e). To warrant presumptive service connection, PCT must become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval or air service. 38 C.F.R. § 3.307(a)(6)(ii). However, even if a Veteran is found not entitled to a regulatory presumption of service connection, the claim still must be reviewed to determine whether service connection may be established on a direct-incurrence basis. Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994). In fact, the Court has specifically held that the provisions set forth in Combee, which, instead, concerned exposure to radiation, are nonetheless applicable in cases, as here, involving exposure to Agent Orange. McCartt v. West, 12 Vet. App. 164, 167 (1999). In this case, the Veteran is presumed to have been exposed to herbicides, since his DD Form 214 confirms he served in the Republic of Vietnam during the Vietnam War. 38 C.F.R. § 3.307(a)(6)(iii). Service treatment records do not show complaints, treatment, or diagnoses relating to the skin. However, during his February 2010 (DRO) hearing, the Veteran testified that he has experienced near-continuous skin lesions/blisters since serving in Vietnam; he stated that he did not immediately seek treatment for these lesions and that he "just dealt with it." He is competent to report on such matters. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Post-service treatment records reflect a diagnosis of porphyria cutanea tarda, or PCT, in March 2008. These records also note that the Veteran has no family history of PCT, and generally indicates that the Veteran was exposed to "Agent Orange." Based on the above, the Board feels that the Veteran should be afforded a VA examination to address his claim for a skin condition as due to exposure to herbicides (Agent Orange) in Vietnam. Specifically, in light of the current porphyria cutanea tarda diagnosis, the Veteran's competent reports of skin problems since service, as well as his presumed exposure to herbicides during service, the Board concludes that a VA examination is necessary to decide this claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain any additional medical records relevant to the Veteran's claim for service connection for porphyria cutanea tarda, to include any records of VA treatment dated after December 2010. 2. After the development directed in paragraph 1 has been completed to the extent possible, schedule the Veteran for a VA examination with a physician with appropriate expertise in order to determine the nature and etiology of his claimed skin disorder. It is imperative that the claims file be made available to the examiner and reviewed in connection with the examination. Any medically indicated special tests should be accomplished, and all special tests and clinical findings should be clearly reported. The examiner should respond to the following: a) Please identify all skin-related disabilities. Confirm if the Veteran has porphyria cutanea tarda. b.) For each skin disability found, to include PCT, is it at least as likely as not (a 50% or higher degree of probability) have its clinical onset during the Veteran's period of service, or is any such disability otherwise related to such period of service, including to any herbicide exposure? For the purposes of this opinion, the examiner should presume that the Board has had herbicide exposure during service in the Vietnam War, in the Republic of Vietnam. c.) If porphyria cutanea tarda is diagnosed, did it at least as likely as not (a 50% or higher degree of probability) become manifest to a compensable degree by July 1970 (within a year of separation). All opinions and conclusions expressed must be supported by a complete rationale in a report. The examiner should reconcile any opinions with the service treatment records, post-service treatment records, and lay statements and testimony of the Veteran. 3. Then, after conducting any additional indicated development, readjudicate the claim currently on appeal. If any benefit sought on appeal remains denied, issue a SSOC and provide the appellant and his representative an appropriate period of time to respond before this case is returned to the Board. 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