Citation Nr: 1331696 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 12-17 448 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for chronic sinus disability. 3. Entitlement to service connection for residuals of scarlet fever, to include heart disability. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his son ATTORNEY FOR THE BOARD N. Rippel, Counsel INTRODUCTION The Veteran served on active duty in the Navy from June 1944 to June 1946. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran was afforded a hearing at the RO before the undersigned Veterans Law Judge in June 2013. The Board notes that, in addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. The most recent VA medical records were added to the VVA file in January 2013. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's bilateral hearing loss disability has not been satisfactorily disassociated from his noise exposure during service. 2. The Veteran chronic sinus disability disability has not been satisfactorily disassociated from sinus pathology in service. 3. The Veteran does not have residuals of scarlet fever; current heart disability is not etiologically related to service, including an episode of scarlet fever in service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss disability have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2013). 2. The criteria for service connection for chronic sinus disability have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). 3. The criteria for service connection for residuals of scarlet fever, to include heart disability have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103 , 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The VCAA also requires VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). With respect to each of the claims, the Board notes that the Veteran was provided all required notice in a letter sent in December 2008, prior to the initial adjudication of the claims. With respect to the hearing loss and sinus disability claims, the Board has determined that the evidence currently of record is sufficient to substantiate the claim. Therefore, no further development is required before the Board decides the claim. With respect to the other claim, the Veteran's service treatment records (STRs) and identified post-service treatment records have been obtained. Neither the Veteran nor his representative has identified any existing evidence that could be obtained to substantiate the claim. VA examination was provided and a VA opinion was obtained in response to the claim. The Board finds these have addressed all relevant criteria and are adequate. Accordingly, the Board will address the merits of the claims. II. General Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §1110; 38 C.F.R. § 3.303. Generally, 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). Also, certain chronic diseases, including certain forms of heart disease, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 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. A. Bilateral Hearing Loss and Chronic Sinus Disability For 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 of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies of 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. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran served in the Navy as an electronic technician during World War II. He was in school for more than a year during service and then spent seven to nine months in the Philippines in his specialty of electronics technician. STRs show that while he was in the school, he developed scarlet fever and was treated with penicillin, he also developed otitis media in May 1945 with right ear throbbing and marked hearing impairment. Nasal turbinates were edematous and congested. He was ultimately discharged to duty as well. STRs reflect no other hearing loss or sinus problems. As to hearing, at separation, whispered voice tests of 15/15 in each ear, were noted. Post service private and VA treatment records show bilateral hearing loss dating from at least August 1998. Sinus treatment is shown in treatment records from the Mayo Clinic dated in April 1999. The diagnosis from that clinic was chronic sinus problem dating back to high school, chronic sinus congestion and stuffiness, nasal congestion, septal deviation and vasomotor rhinitis. The Veteran had a VA examination in March 2009 for sinuses. The examiner found that the Veteran did not have evidence of sinusitis. He did not have upper respiratory infections approximately once per year. The Veteran had a VA examination for hearing loss in December 2012. Audiometric testing showed the Veteran to have a disability for VA compensation purposes. The diagnosis was bilateral sensorineural hearing loss. The examiner opined that the Veteran's hearing loss disability was not due to service. He reasoned that the Veteran's job in service did not appear to involve excessive noise exposure. He repaired radar and jamming equipment. He did not service on a ship, and he reportedly spent half of his service in training. He was not exposed to combat, and in 2009 he reported that he did not think you could call his duties noisy work. The examiner did not feel the Veteran's scarlet fever caused his hearing loss. In August 2012, the Veteran disagreed with the examiner's characterization of his specific duties in service. He described his duties as an electronic technician in the Navy during World War II as involving wearing headphones and hearing loud squeal, squelch and transmit feedback from the equipment. He felt that noise exposure in that job led to his hearing loss. In June 2013, the Veteran submitted written, signed statements from seven laypersons who had known the Veteran from between 33 to 66 years each. They averred that, during the time they knew him, he had daily hearing difficulties and year round use of a handkerchief for sinus problems. The Veteran and his son testified before the undersigned that he had experienced hearing loss and sinus trouble since service. He described his duties in the Navy as involving wearing headphones or headsets which required him to have advanced training and as the sonar things were somewhat new. These were not designed to protect him from hearing or loud noises. They were actually meant to increase the sound. After service he had chronic sinus congestion and stuffiness, use of handkerchief almost continuously, decreased sense of smell and nasal congestion, and chronic vasomotor rhinitis. In this case, the Board finds the Veteran competent to report his symptoms of hearing loss and sinus trouble for many years. Further, the Board finds that the Veteran is competent to describe his noise exposure during service and since service. Also, the Board finds the testimony of the Veteran and his son to be fully credible. Additionally, it finds the lay statements from people who knew the Veteran between 33 to 66 years to be compelling evidence of continuous hearing loss and sinus trouble since service. The Board has reviewed all of the evidence and finds that the Veteran was exposed to acoustic trauma during service and that his statements, other lay statements and his testimony reflect that he had hearing loss since service separation. The Veteran provided a history of his post-service hearing difficulties from the time of separation. Again, the Board finds his statements credible. While the VA examiner stated that the hearing loss is less likely as not related to service because he had no hearing loss at separation and because the Veteran's service duties did not appear to involve noise exposure, the VA examiner did not specifically indicate the etiology of the hearing loss. It does not appear that the examiner considered the Veteran's report of noise exposure during service as described by him in detail in subsequent statements. Additionally, the Board finds the STRs sufficient, coupled with the testimony, to establish that the Veteran had sinus difficulties in service as documented in the treatment record for scarlet fever and otitis media. The evidence from the Mayo Clinic as well as the lay statements to be evidence of current disability of sinus disability and a link between service and the current disability. While the VA examiner stated that there was no actual sinusitis, the Board finds the evidence of sinusitis in the treatment records and the statements as to constant symptoms to be competent and in fact more persuasive as to current chronic disability. With respect to whether the Veteran's own statements can establish a current disability here, in Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit determined 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 (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Weighing all of the evidence, the Board finds that the evidence is at least in equipoise as to whether the Veteran's bilateral hearing loss and chronic sinus disability is a result of or related to his active service. Accordingly, entitlement to service connection for bilateral hearing loss and chronic sinus disability is in order. B. Scarlet Fever Residuals, including Heart Disability The Veteran seeks service connection for residuals of scarlet fever to include heart disability. It is not alleged that he had a chronic heart disease in service. Rather, it is alleged that his coronary artery disease is a residual of scarlet fever. During his hearing before the Board, the Veteran, with the help of his son, testified that he got sick with scarlet fever during service. While told he would go through a 21 day regimen, he was in fact only hospitalized for 9 days in March 1945. Thereafter, he became sicker, was re-hospitalized in May 1945 with the aforementioned otitis media, and was then treated with penicillin. This fever and infection, they believe, are related, and are the cause of his current heart disease. STRs show a diagnosis of scarlet fever in March 1945. He had upper respiratory symptoms and a rash. He was treated with sulfa for a week and discharged. He was admitted in May 1945 for otitis media and a cold. He was given penicillin, sodium bicarbonate, codeine and Neosynephrin. He was discharged after a week. His service discharge examination noted scarlet fever in 1945 but did not show any scarlet fever was still present. Post service records include a VA treatment record dated in 2003 and 2006 showing coronary artery disease with recurring symptoms. The Veteran had three stents placed in November 2003. Private treatment records dated in June 2007 shows that coronary artery disease was clinically stable. VA treatment records in July 2006 through November 2008 show treatment for coronary artery disease. The Veteran was afforded a VA examination for heart disability in March 2009. The examiner took a detailed history of the Veteran and reviewed the claims folder. He stated that the Veteran's scarlet fever in the Navy completely resolved without complication of acute rheumatic fever. He explored the possibility of the Veteran having had a low grade rheumatic fever, and noted that a murmur heard on physical examination was suggestive of mitral regurgitation. Nonetheless, the examiner explained that the echocardiogram, even though two years old, clearly eliminates the possibility that there was significant rheumatic fever, and the murmur likely represents the physiologic mitral and tricuspid regurgitation. The examiner opined that it was thus less likely than not that the arteriosclerotic heart disease the Veteran has been diagnosed with is connected in any meaningful way to the scarlet fever he had in the Navy in 1945. The competent medical evidence of record does not show that the Veteran currently has a diagnosed residual of scarlet fever, to include heart disability. The Board does not deny the Veteran's competence to report that he experiences symptoms such as shortness of breath and chest pain related to heart disease, but the diagnosed heart disease has not been related to service, and specifically to scarlet fever, by any medical professional. Rather, the competent medical opinion of record shows that the current heart disease is not a residual of or otherwise related to scarlet fever. Therefore, the Board concludes that the preponderance of the evidence is against the claim that a residual of scarlet fever, to include heart disease, has been present at any time during the pendency of the claim. With respect to whether the Veteran's own statements can establish a current disability here, the criteria under Jandreau have not been met. A layperson is not competent to identify a heart condition as a residual of scarlet fever. Thus, the claim must fail. As the Veteran has not shown current residuals of scarlet fever, to include heart disease, and as the current heart disability is not related to service, the claim for service connection for residuals of scarlet fever to include heart disability must be denied. The Board has duly considered the benefit of the doubt doctrine. 38 U.S.C.A. § 5107; see also Gilbert, supra. However, the preponderance of the evidence is against the Veteran's claim, so that doctrine is not applicable to this claim. The claim must be denied. ORDER Service connection for bilateral hearing loss disability is granted. Service connection for chronic sinus disability is granted. Service connection for residuals of scarlet fever to include heart disability is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs