Citation Nr: 1330926 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 08-29 659 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for right shoulder scars. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD S. Keyvan, Counsel INTRODUCTION The Veteran had active duty service from February 1968 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the January 2006 rating action of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which, in pertinent part, denied service connection for hearing loss and right shoulder scars. In June 2013, the Veteran testified at a hearing conducted at the RO before the undersigned Veterans Law Judge. A copy of the transcript of that hearing has been associated with the claims file. FINDINGS OF FACT 1. It is as likely as not that the Veteran's hearing loss is attributable to his military service. 2. The Veteran's right shoulder scars were incurred as a result of injury during his period of military service. CONCLUSIONS OF LAW 1. The Veteran has bilateral hearing loss that is the result of disease or injury incurred during active military service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2013). 2. The Veteran's right shoulder scars are the result of injury incurred during active military service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Hearing Loss Here, the Veteran contends that he developed bilateral hearing loss due to exposure to acoustic trauma while serving in the military. He further maintains to have experienced on-going hearing loss since this time. In considering the evidence of record, the Board concludes that the Veteran is entitled to service connection for bilateral hearing loss Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of an injury or disease; and (3) evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). In the alternative, if a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Such evidence must be medical unless it relates to a condition as to which under case law of the United States Court of Appeals for Veterans Claims (Court), lay observation is competent. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). The Federal Circuit Court recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies 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 (2013). The Court, in Hensley v. Brown, 5 Vet. App. 155 (1993), indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a medical relationship between the appellant's in-service exposure to noise and current disability. Certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss, may be presumed to have been incurred during service if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307(a)(3); 3.309(a) (2013). The absence of in-service evidence of a hearing loss during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley, 5 Vet. App. at 159. The Board finds that service connection for hearing loss is warranted. In making this determination, the Board highlights that the post-service medical evidence of record demonstrates that the Veteran has been diagnosed with bilateral hearing loss. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (noting that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim). Specifically, the Veteran's speech recognition score in the left ear, presumably based on the Maryland CNC Test, was 92 percent at the April 2008 VA examination. The Veteran also submitted results from an audiological evaluation that was conducted at a private treatment facility in March 2006. The results of this private audiometric testing showed pure tone thresholds, in decibels as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 40 60 LEFT 25 20 30 60 70 The private audiogram results were provided in graph form, and the Board has provided the numeric equivalents above based on the depiction of these findings. These findings meet the requirements of 38 C.F.R. § 3.385 (2013). Turning to the second element required for service connection, the Veteran's DD 214 reflects that he served as a heavy vehicle driver in service. In addition, the Veteran's service personnel records reflect that he served in the Republic of Vietnam from September 1968 to September 1969. Based on the Veteran's lay assertions and hearing testimony, he served as a helicopter gunner in the Aviation unit while stationed in Vietnam, and these duties subjected him to multiple combat situations that involved exposure to noises and sounds emitted from the firing of guns and rocket-propelled grenades (RPGs). See July 2004 Statement of Veteran; see also June 2013 Hearing Transcript, p. 9. During his hearing, the Veteran testified that he began experiencing hearing problems in service. See Transcript, p. 13. The Veteran has also reported to have ongoing hearing problems since his separation from service. The Veteran's DD 214 reflects that his last duty assignment in Vietnam was with the 2nd Transportation Company. In an effort to corroborate the Veteran's assertions regarding his in-service experiences, the RO contacted the U.S. Army and Joint Services Records Research Center (JSRRC), and provided information regarding the Veteran's unit and dates of service in Vietnam. In their response, the Defense Personnel Records Information Retrieval System (DPRIS) reviewed a report submitted by the U.S. Army Support Command, which covered the period ending October 31, 1968, and which indicated that members of the 2nd Transportation Company were under the operational control of USASUPCOM, Qui Nhon, Binh Dinh Province during the specified period. According to this report, hostile activity directly affected this area, and consisted of "stand-off mortar attacks against USASUPCOM Qui Nhon units, [the] ambush of convoys, and interdiction of lines of communications (road networks)." Review of this report further noted that two Support Command units at nearby Camp Radcliff "were bombarded by approximately 60 enemy mortar rounds and rockets in addition to enemy sapper satchel charges." Review of the weekly summary submitted by the Military Assistance Command Vietnam (MAC-V), and covering the period ending November 16, 1968, confirmed that besides shellings and minings of vehicles, "the enemy launched numerous attacks and harassment fires on U.S. and Army of Vietnam (ARVN) forces during this period." In the case of any veteran who engaged in combat with the enemy in active service, the VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service, satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the Veteran. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). Here, based on the Veteran's service in Vietnam and the personnel records corroborating his assertions of combat noise exposure, the Board concedes that the Veteran was exposed to acoustic trauma in service. With respect to the third element required for service connection, in the August 2005 VA Audiology Diagnostic report, the treatment provider noted that the Veteran had a history of combat noise exposure while serving during the Vietnam era, and diagnosed the Veteran with sensorineural hearing loss. In an April 2006 letter, the Veteran's physician, M.Y, M.D., noted that the Veteran had been referred to her by the audiologist who performed the March 2006 audiological evaluation. After evaluating the Veteran and reviewing the March 2006 audiometric test results, Dr. Y. concluded that the Veteran had bilateral high frequency sensorineural hearing loss associated with loud noise exposure. At the April 2008 VA audiological examination, the Veteran provided his military history, commented that hearing protection was not used on a consistent basis in service, and denied any other jobs or hobbies that may have exposed him to loud sounds in service. Based on her evaluation of the Veteran, the VA audiologist determined that results from the audiometric test were invalid due to the fact that the speech reception threshold (SRT) and pure tone audiometry (PTA) results were not a good match - particularly on the right side. She further explained that ascending and descending methods of threshold search yielded different results. However, according to the VA audiologist, the word recognition scores were considered to be valid. Based on her review of the claims file, the VA audiologist determined that the Veteran's hearing loss was neither caused by, nor a result of, his time in the military. The rationale provided for this opinion was that the Veteran's hearing was within normal limits at the time of his discharge. According to the VA audiologist, "there is no current data connecting a delayed onset of hearing with noise exposure." The Veteran has described a history of exposure to loud sounds in service and has stated that his hearing loss began during his period of active service. 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(a)(2). The Board also finds the Veteran's statements with respect to his continuity of symptomatology to be credible. Accordingly, after reviewing the evidence of record and resolving reasonable doubt in his favor, the Board finds that the Veteran's current bilateral hearing loss cannot be reasonably disassociated from his conceded in-service exposure to loud noises. With respect to the April 2008 VA medical opinion, the Board finds that the VA audiologist did not provide an adequate discussion for the opinion provided. In rendering her negative opinion, the VA audiologist explains that her conclusion is supported by the Veteran's normal audiological results at the time of discharge. However, by noting that the Veteran was shown to have normal hearing on his separation examination report, the VA audiologist may have been implying that had there been noise-induced hearing loss because of in-service noise exposure, it would have been detected by the evaluation at separation. Nevertheless, she did not state this clearly, and the Board concludes that inferring that this is what she meant from what she did say would be tantamount to the Board rendering its own unsubstantiated medical opinion, and the Board is precluded from doing so. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that Board must rely on independent medical evidence to support its findings and must not refute medical evidence in the record with its own unsubstantiated medical conclusions), overruled on other grounds by Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Furthermore, the VA audiologist does not appear to have given much weight to the Veteran's account of his in-service experiences, his exposure to loud noise while carrying out his military duties, and his assertions that he began noticing difficulty hearing in service and has continued to experience symptoms of hearing loss since his discharge from service. These factors do provide a connection between the Veteran's onset of hearing loss with noise exposure. Thus, the Board finds that the VA audiologist's opinion has less probative value, and, when weighed against the April 2006 medical opinion relating the Veteran's hearing loss to loud noise exposure, as well as the Veteran's reported onset in service, and continuity of symptomatology since service, the Board finds the evidence is at least in equipoise that the Veteran's hearing loss is related to his conceded in-service noise exposure. Of particular significance to the Board in this matter are the Veteran's conceded in-service acoustic trauma and his competent complaints of continuing hearing problems since service. Based on the totality of the evidence, and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran currently has bilateral hearing loss that was incurred as a result of his active military service. Accordingly, service connection for bilateral hearing loss is warranted. 38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. Right Shoulder Scars The Veteran contends that during his period of service in Vietnam, he was transferred to the 238th Aviation unit where he served as a helicopter gunner. According to the Veteran, during one particular mission, when the helicopter he was in was covering a convoy in Vietnam, his helicopter was struck from the side by an ambush, and as a consequence of this attack, he suffered a fragment injury to his right shoulder. When describing this injury, the Veteran testified that numerous fragments were embedded into his shoulder, and he was thereafter transported to the field hospital unit for removal of these pieces. See Statements of Veteran, one of which is undated and the other of which is dated in July 2004; see also Hearing Transcript, pp. 4-6. According to the Veteran, numerous scars remain on his right shoulder as a result of this injury. After a review of the evidence of record, the Board finds that service connection is warranted for the right shoulder scars. The post-service treatment records reflect that the Veteran has been diagnosed as having scars on his right shoulder. Namely, the Veteran was afforded a VA examination in December 2005, at which time the VA examiner evaluated the Veteran and observed 20 to 25 scars on his right shoulder. Based on his evaluation of the Veteran, the examiner diagnosed the Veteran as having a "[t]raumatic superficial wound, as a result of multiple small pieces of metal status post removal on the right shoulder, [which have] healed well and left mild disfiguring scars." Therefore, the first element for service connection for this claim, the existence of a current disability, is met. See Hickson, 12 Vet. App. at 253. With respect to evidence of an in-service incurrence of a disease or injury, the Board notes that the Veteran has submitted a December 2011 statement from his former Platoon Sergeant, T.L., corroborating his assertions that he (the Veteran) was assigned to the 238th Aviation unit and served as a helicopter gunner during his last five months of service in Vietnam. T.L. attested that he served alongside the Veteran in the 2nd Transportation Company while stationed in Vietnam, and further attested that the Veteran was injured twice during his time as a gunner. According to T.L., the first incident occurred when the helicopter he was flying on was hit by enemy fire, "and many pieces of shrapnel landed in [the Veteran's] right shoulder." T.L. added that the Veteran was hospitalized in a field hospital unit as a result of this wound, and released several days later. Based on this corroborating statement, and the service personnel records demonstrating that those assigned to the 2nd Transportation Company were exposed to direct combat attacks in Vietnam, the Board finds the Veteran's assertions concerning the circumstances surrounding this in-service injury to be credible and consistent with the circumstances of his service, as indicated in official military records. See 38 U.S.C.A. § 1154(a). Finally, turning to the third element required for service connection, the Board takes note of the December 2004 and August 2006 opinions of record issued by the Veteran's treatment provider, K.B., M.D. In the December 2004 medical opinion, Dr. B. reviewed the Veteran's military history and noted that the Veteran's first in-service injury occurred while he was serving as a helicopter gunner in Vietnam. Dr. B. noted that the Veteran sustained a wound injury of his right shoulder that covered a 5 by 6" area, after the helicopter he was riding in was hit from the side. According to Dr. B., after her evaluation of the Veteran, it was her professional opinion "that the scars he received are consistent with shrapnel wounds and are the result of combat service in Viet Nam." Dr. B. reiterated this same opinion in an August 2006 letter. As such, because there is medical opinion evidence of a relationship between the Veteran's currently diagnosed right shoulder scars and service, the Board finds that the third element required for service connection has also been satisfied. Based on the totality of the evidence, and resolving reasonable doubt in the Veteran's favor, and because the Board may not inject its own interpretation of the evidence, the Board finds that the Veteran currently has residual right shoulder scars which are related to wounds he incurred in active military service. Accordingly, because all three elements required to establish entitlement to service connection have been met, the Board finds that service connection for right shoulder scars is warranted. Therefore, the Veteran's claim of entitlement to service connection is granted. 38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. ORDER Entitlement to service connection for hearing loss is granted. Entitlement to service connection for right shoulder scars is granted. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs