Citation Nr: 1330759 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 11-20 697 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for residuals of cold injury to the feet. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The Veteran had active military service from October 1948 to November 1952, to include service in Korea. The Veteran was awarded a Purple Heart Medal for his period of active service. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction over the case was subsequently returned to the VA RO in Montgomery, Alabama. In connection with this appeal, the Veteran and his spouse testified at a videoconference hearing before the undersigned Acting Veterans Law Judge in July 2013 and accepted such hearing in place of an in-person hearing before a Veterans Law Judge. A transcript of that hearing is associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). The issue of entitlement to service connection for residuals of cold injury to the feet is addressed in the REMAND following the ORDER section of this decision. FINDING OF FACT Bilateral hearing loss disability and tinnitus are related to acoustic trauma sustained in active service. CONCLUSIONS OF LAW 1. Bilateral hearing loss disability was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2013). 2. Tinnitus was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claims. In addition, the Board has determined that the evidence currently of record is sufficient to substantiate the Veteran's claims of entitlement to service connection for bilateral hearing loss disability and tinnitus. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012) or 38 C.F.R. § 3.159 (2013). Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease of injury and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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, 1 Vet. App. at 54. Analysis The Veteran has asserted that he has bilateral hearing loss disability and tinnitus as a result of exposure to hazardous noise while in active service. Specifically, the Veteran has reported extensive noise exposure in the form of large and small arms fire and mortar attacks while serving in combat in Korea. The Veteran has reported that at one point a mortar exploded very near to his foxhole, the concussive blast from which blew him out of his foxhole, caused him to hit his head and sustain a concussion, and caused him to experience immediate hearing loss and tinnitus. The Veteran reported that he noticed bleeding from his ears following the mortar explosion, but that he did not report to medical because he did not think it was severe enough to warrant a trip to the hospital. He reported that it was not until later, after sustaining the gunshot wound warranting the award of his Purple Heart Medal, that he was evacuated from the field and taken to the hospital. He reported that when he arrived at the hospital for treatment of his gunshot wound, he also provided his history with respect to his hearing at the time of the explosion. A review of the record shows that the Veteran did in fact have service in Korea. Further, the Veteran's DD Form 214 clearly shows that he engaged in combat actions while stationed in Korea. Additionally, the Veteran's military occupational specialty (MOS) during active service was listed as 4812, which designates several occupations, including heavy machine gunner, mortar ammunition corporal, and mortar gunner or crewman. Additionally, the Veteran's DD Form 214 lists the Veteran's most significant duty assignment as a mortar battalion. With regard to the Veteran's report that he experienced immediate hearing loss, tinnitus, and bleeding from the ears following a mortar explosion very near his foxhole, the Board notes that a complete copy of the Veteran's service treatment records (STRs) is not available as they were destroyed by fire at the National Personnel Records Center (NPRC). A review of the STRs that are of record is silent for any mention of a specific injury to the Veteran's hearing while he was in active service. However, the Board notes that in the case of a Veteran who engaged in combat with the enemy in a period of war, lay evidence of in service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. 38 U.S.C.A. § 1154 (b); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996). As the Veteran's report of sustaining acoustic trauma during service resulting in immediate hearing loss and tinnitus is consistent with the circumstances of his combat service and MOS, the Board concedes that both the acoustic injury occurred as described by the Veteran and that the Veteran was exposed to severe acoustic trauma while in active service. Further review of the Veteran's STRs shows that at the time of his October 1952 separation examination, the Veteran was only administered a whisper voice test and was not administered an audiogram. Therefore, the Veteran's hearing acuity at the time of his separation from active service cannot be determined. However, the Board notes that the Veteran is competent to report when he first experienced hearing loss and tinnitus and that the symptoms have continued since service. See Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board has found the Veteran to be credible. Additionally, the Board notes that at the Veteran's July 2013 hearing before the Board, the Veteran's spouse testified that the Veteran has experienced hearing loss and tinnitus since she has known him. She reported that she married the Veteran in 1980 and by that time, he already had regular complaints of both hearing loss and tinnitus. Further, she reported that the Veteran had told her of his experiences in Korea, to include the acoustic injury of a mortar exploding near his foxhole as described above. The Board notes that lay testimony is competent to establish the presence of observable symptomatology. Layno v. Brown, 8 Vet. App. 398 (1995). In this case, the Board finds that the Veteran's spouse is competent to report that she has witnessed the Veteran experience symptoms of hearing loss. Moreover, the Board finds the Veteran's spouse credible. In March 2009, the Veteran was afforded a VA examination. At that time, the Veteran again reported the noise exposure discussed above, to include the mortar explosion near his foxhole, and reported minimal post-service noise exposure. Additionally, the Veteran could not specifically state the exact date of his onset of tinnitus, but did report that was more than 10 years prior. An audiogram at that time revealed bilateral hearing loss disability for VA purposes. The examiner diagnosed mild to moderately-severe hearing loss, bilaterally and tinnitus. The examiner was also asked to provide an opinion regarding the etiology of the Veteran's bilateral hearing loss disability and tinnitus. At that time, the examiner opined that the Veteran's bilateral hearing loss disability was not related to military noise exposure. In this regard, the examiner noted that the Veteran had a normal whisper voice test at separation and a June 1963 VA ear, nose, and throat specialist (ENT) noted the Veteran's hearing to be normal. With regard to the Veteran's tinnitus, the examiner opined that the Veteran's tinnitus was less likely as not related to noise exposure in service. In this regard, the examiner noted that while the Veteran reported that the onset of his tinnitus was more than 10 years prior, he could not be more specific with regard to the timeframe. The Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Wilson v. Derwinski, 2 vet. App. 614 (1992). In this case, the Board declines to accept the VA examiner's opinions regarding the etiology of the Veteran's hearing loss disability and tinnitus as the VA examiner does not sufficiently support her conclusion. In this regard, the examiner did not address the Veteran's lay statements regarding the onset of his hearing loss and tinnitus. Additionally, the examiner failed to address the Veteran's significant exposure to acoustic trauma during active service. Further, in light of the Veteran's minimal post-service noise exposure, the VA examiner also failed to provide any other causal explanation for the Veteran's hearing loss and tinnitus. Therefore, as the VA opinion is inadequate, it cannot serve as the basis of a denial of entitlement to service connection. The Board notes that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (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. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F .3d 1331 (Fed. Cir. 2006). In this case, the Veteran is competent to identify bilateral hearing loss disability and tinnitus and his statements of such have been found credible. Additionally, the Veteran's spouse has testified that the Veteran had noticeable hearing loss as far back as 1980. In sum, the Board has conceded both the Veteran's significant acoustic trauma and his specific acoustic injury during active service. The Veteran has competently reported that he first experienced hearing loss and tinnitus while in active service and that he has continued to experience both since that time and these statements have been found credible by the Board. The Veteran's spouse has corroborated the Veteran's report of longstanding hearing loss and tinnitus. While there is a medical opinion of record indicating that the Veteran's currently diagnosed bilateral hearing loss disability and tinnitus are not related to his noise exposure in active service, that opinion does not consider all pertinent facts and does not provide a complete, thorough, and detailed rationale supporting the conclusions made. Accordingly, the Board finds that the evidence for and against the claims of entitlement to service connection for bilateral hearing loss disability and tinnitus is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for bilateral hearing loss disability and tinnitus is warranted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for bilateral hearing loss disability is granted. Entitlement to service connection for tinnitus is granted. REMAND The Board finds that additional development is required before the Veteran's remaining claim on appeal is decided. The Veteran has asserted that he has residuals of cold injury to his feet as a result of being exposed to severe cold weather while serving in Korea. As noted above, the Veteran was stationed in Korea during the winter months of 1950-1951. It is well-documented that the winter months in question were productive of very severe cold weather and cold injuries to service members serving in Korea at that time are also well-documented. Therefore, the Board concedes the Veteran's exposure to extreme cold weather during active service. A review of the Veteran's STRs also shows that in July 1952, the Veteran was seen in medical for complaints of blistering on his right heel. At that time, the Veteran was referred to dermatology and it was noted that the right foot complaints might be related to "old frostbite." There is no documentation of further treatment of record. At his July 2013 Board hearing, the Veteran and his spouse both testified that the Veteran currently experienced bilateral foot pain, intermittent discoloration of his feet, and some buildup under his toenails. While the Veteran has not been diagnosed with residuals of cold injury to his feet, as noted above, the Veteran is competent to report when he first experienced problems with his feet and that they have continued since service; and both the Veteran and his spouse are competent to report observable symptoms, such as discoloration of the Veteran's feet. Moreover, the Board finds both the Veteran and his spouse to be credible in this regard. In light of the Veteran's exposure to extreme cold weather during active service, the notation in the STRs indicating that the Veteran experienced frostbite to at least his right foot during active service, and his current complaints of foot problems, the Board finds that the Veteran should be afforded a VA examination to determine the nature and etiology of any currently present foot disabilities. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, current treatment records, to include those identified at the Veteran's July 2013 Board hearing, should be obtained prior to a decision being rendered with regard to this issue. Accordingly, the case is REMANDED to the RO or the Appeals Management Center in Washington, DC (AMC) for the following actions: 1. Undertake appropriate development to obtain any outstanding, pertinent medical records. Any additional treatment records identified by the Veteran should be obtained and associated with the claims files, to specifically include private records identified by the Veteran and his spouse at his July 2013 Board hearing. If such efforts yield negative results, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow them the opportunity to obtain and submit those records for VA review. 2. Then, the Veteran should be afforded a VA examination by a physician with sufficient expertise to determine the nature and etiology of any currently present foot disabilities. The Veteran's claims file, and any pertinent evidence in Virtual VA that is not contained in the claims file, should be made available to and reviewed by the examiner. Any indicated studies should also be performed. Based on the examination results and the review of the record, the examiner should provide an opinion with respect to any currently present foot disabilities as to whether there is a 50 percent or better probability that the disability is etiologically related to the Veteran's active service, to specifically include exposure to severe cold weather and cold weather injuries sustained in such service. The examiner should presume that the Veteran is a reliable historian with regard to his reported exposure to extreme cold weather while serving in Korea in the winter months of 1950-1951. The supporting rationale for all opinions expressed must be provided. 3. The RO or the AMC should ensure that all VA examination reports and medical opinions provided comport with this remand and conduct any other development it determines to be warranted. 4. Then, the RO or the AMC should readjudicate the Veteran's remaining claim on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case, provided an appropriate opportunity to respond and the case should thereafter be returned to the Board for further appellate action. By this remand the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified but he has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). As noted above, this case has been advanced on the Board's docket. It must also be handled in an expeditious manner by the RO or the AMC. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs