Citation Nr: 1329231 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 12-34 233 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for residuals of a left leg laceration, including scarring. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Andrew Larson, Associate Counsel INTRODUCTION The Veteran had active service in the Air Force from August 1957 to April 1961. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied service connection for the Veteran's leg condition and hearing loss. The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by the RO. The issue of entitlement to service connection for bilateral 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. While in service, the Veteran suffered a laceration on his left shin after falling from a cargo plane. 2. The Veteran has a scar on his left shin and neuritis of the left anterior leg as a result of his in-service injury. CONCLUSION OF LAW The criteria for service connection for residuals of laceration injury of the left leg, including a scar and neuritis of the left anterior leg, have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist As a preliminary matter, the Board notes that regulations enacted under the VCAA require VA to notify claimants and their representatives of any information that is necessary to substantiate a claim for benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103(a), 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159(b), 3.326(a) (2012). In the instant case, the Veteran's claim for service connection for residuals of a left leg injury is granted herein. As such, any deficiencies with regard to VCAA for these issues are harmless and non-prejudicial. Merits of the Claim The Veteran contends that service connection is warranted for the residuals of a laceration which cut straight through to the bone on his left leg. He contends that he suffered a fall in service while unloading a cargo plane resulting in the injury and continues to experience pain to this day. Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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). A veteran may be granted service connection for any disease initially diagnosed after discharge, but only if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In making all determinations, the Board must fully consider all lay assertions of record. A layperson is competent to report on the onset and continuity of observable symptomatology. 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). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board's duty is to assess the credibility and weight of the evidence. See Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In order to grant a veteran's claim for a service connected disability, the VA must examine the evidence and determine whether the claim is supported or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. Id. Here, VA was unable to locate service treatment records corroborating the Veteran's assertion of an in-service injury, as the majority of his service personnel records and service treatment records were not available for review. His service records appear to have been destroyed by fire, including those from his time at Travis Air Force Base in 1958, the site of his alleged leg injury. A search for alternate service records was unsuccessful. Under such circumstances, the Court has held that VA has a heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision when the Veteran's treatment records have been destroyed." Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), citing Russo v. Brown, 9 Vet. App. 46, 51 (1996); see also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board concludes that the Veteran is competent to assert that he suffered a severe laceration on his left leg in service and as a result, has scarring. In support of his claim, the Veteran has submitted a buddy statement from J.G., who was stationed with the Veteran at Travis Air Force Base from 1958 to 1960. J.G. reports that the Veteran suffered a serious injury to his shin in 1958 after falling from a cargo aircraft, causing him to remain in a hospital for several months. Additionally, the Veteran has submitted his immunization report from his time in service, one of the few STRs in the claims file. The report contains record of a tetanus shot in 1958, supporting the Veteran's claim that he suffered a deep cut at the time and received treatment. The Veteran underwent a VA examination in April 2011. There, the Veteran reported intense pain of his left shin four times a week, each lasting anywhere from two to eight hours. The examiner noted a 3.7 cm "inverted V shaped laceration repair scar" on the Veteran's left tibia that showed "tenderness to palpation." Because the examiner did not have the Veteran's STRs to review, he concluded that an opinion regarding the etiology of the shin condition could not be made without resorting to mere speculation. Regardless, the report establishes that the Veteran does in fact currently suffer from a painful, old scar on his left shin. In addition, the Veteran submitted a October 2012 private medical evaluation, which concluded appeared to have "neuritis to the left ant leg, onset after fracture of left tibia while in service in 1958." In light of the April 2011 VA examiner findings that the Veteran possesses a painful scar in the area of the claimed left shin injury, as well as the October 2012 private medical evaluation showing neuritis of the left anterior leg with an onset after the in-service left tibia injury during service in 1958, the Board finds that the evidence is at least in a state of relative equipoise in showing that the Veteran's current left leg residuals resulted from his laceration in service. For these reasons, the Board finds that service connection is warranted for residuals of a laceration of the left leg. By extending the Veteran the benefit of the doubt, his claim is granted. ORDER Entitlement to service connection for residuals of a left leg laceration, including scarring and neuritis of the left anterior leg, is granted. REMAND The Board must now address the matter of entitlement to service connection for bilateral hearing loss. The Veteran was afforded a VA audiology examination in July 2010. The claims folder was reviewed, but, as stated above, the Veteran's STRs were not available. The Veteran was diagnosed with sensorineural hearing loss in the right ear, with mixed hearing loss in the left. The examiner concluded that he could not give an opinion regarding the etiology of the Veteran's hearing loss without resorting to mere speculation due to the missing STRs, as well as the Veteran's employment in the construction industry for 40 years. The examiner further noted that because of the Veteran's asymmetric hearing loss, the Veteran should receive an ear, nose, and throat (ENT) consultation to rule out middle ear pathology caused by his military service. The Board concludes that this consultation must be performed. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA examination by an otolaryngologist or someone with equivalent expertise and training sufficient to provide an ENT consultation. The claims folder should be made available to the examiner for review before the examination. All indicated tests and studies should be conducted. After the review of the record and the examination are completed, the examiner should express the following opinion: Is it as least as likely as not (e.g., 50% or greater probability) that the Veteran's current asymmetric, bilateral hearing loss had its clinical onset during active service or is related to any in-service disease, event, or injury, including noise exposure? In formulating this opinion, the Veteran's competent reports of being subject to constant aircraft noise in service, as well as being diagnosed with 20 percent hearing loss upon discharge from service, should be treated as credible. The examiner should also consider the Veteran's employment history in the construction industry following service. The reasons and bases for this opinion should be provided. If the examiner is unable to express the requested opinion without resorting to speculation, the reasons and bases for that opinion should be noted, and any missing evidence that would enable the opinion to be expressed should be identified. 2. After the development requested above has been completed to the extent possible, the RO should again review the record on a de novo basis. If any benefit sought on appeal remains denied, the Veteran and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The Veteran 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). ______________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs