Citation Nr: 1332168 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 09-31 054 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Michelle S. Wolf, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran had active service from September 1979 to September 1982. Thereafter, he served in the Army National Guard and had periods of active service from June 1999 to February 2000 and from November 2002 to May 2003. This matter comes before the Board of Veterans' Appeals (Board) from a December 2007 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which found that new and material evidence had not been submitted to reopen the claims of entitlement to service connection for hepatitis C and for bilateral hearing loss. In a May 2011 decision, the Board issued a decision, finding that new and material evidence had been submitted to reopen the claims of entitlement to service connection for hepatitis C and for bilateral hearing loss. After reopening the claims, the Board remanded the claim for service connection for bilateral hearing loss for further development, and the Board also issued a decision, denying the claim for service connection for hepatitis C on the merits. The Veteran appealed the Board's May 2011 denial of service connection for hepatitis C to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a joint motion for remand (JMR), the Court, in a March 2012 Order, vacated the Board's decision as to the denial of service connection for hepatitis C, and remanded the matter to the Board. In the May 2011 remand of the claim for service connection for bilateral hearing loss, the Board requested that the Veteran be afforded a VA audiological examination with opinion. A review of the record shows that this was accomplished; thus, the Board concludes that there was substantial compliance with the remand directives of May 2011. Stegall v. West, 11 Vet. App. 268 (1998). However, for reasons set forth below, the Board finds that a remand is warranted in order for the VA examiner's opinion to be clarified further. As noted in the prior Board decision/remand issued in May 2011, a claim for service connection for tinnitus had been raised by the record, but had not been adjudicated by the Agency of Original Jurisdiction (AOJ). The Board noted that it did not have jurisdiction over that issue and referred it to the AOJ for appropriate action. While the January 2013 VA examination addressed the claim for service connection for tinnitus, it is unclear whether the AOJ has taken action on that claim; thus, it is again referred for any action deemed appropriate. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND 1. Hepatitis C The Veteran essentially contends that he was exposed to and diagnosed with hepatitis C during active service. He has contended that in service, between 1980 and 1981, a fellow service member was found to have hepatitis and that the whole company was tested for it. He claimed he was diagnosed with hepatitis C at that time and went to sick call. He has alternatively contended that he has hepatitis C caused by the immunizations gun that was used to immunize him before leaving the country while he was in service. In March 2009, the Veteran completed a risk factors for hepatitis questionnaire, and specifically denied all 9 of the risk factors. This matter is now before the Board because the Court granted the JMR filed by the parties (the Veteran and VA), and remanded the claim for service connection for hepatitis C for action consistent with the terms of the JMR. In the JMR, the parties essentially found that the Board erred in not obtaining a medical examination and opinion in this matter, and also erred in relying on its own medical judgment in rendering a decision. In the JMR, the parties noted that the Board, in its decision, stated that "there is no possible association with service . . . [and] [a]ccordingly, VA is not required to further develop the claim by affording the Veteran a VA examination or by obtaining a VA medical opinion under the duty to assist". The parties noted the Veteran's statements to the effect that his diagnosed hepatitis C resulted from the use of an immunization gun while in service, and that while he was in service, his whole company tested for hepatitis C because a fellow soldier had tested positive for hepatitis, but indicated that the Board did not find the Veteran's statements regarding inoculation to be incredible. Further, the parties cited to the Court case McLendon v. Nicholson, 20 Vet.App. 79 (2006), and noted that while the Board found no evidence showing a relationship between the Veteran's diagnosed hepatitis C and his service - notwithstanding its acknowledgement that the Veteran's service records were lost and the Veteran's statements regarding in-service events - the Board did not address VA Fast Letter 04-13, or what impact that Fast Letter had on VA's obligation to provide the Veteran with a VA examination in this case. In the JMR, the parties also cited to Colvin v. Derwinski, 1 Vet.App. 171, 175, and found that the Board erred when it found that there was "no possible association" between the Veteran's diagnosed hepatitis C and his active duty service, in the absence of medical support for such a statement. The parties noted that the Board found that "[g]iven the late onset of hepatitis C, it was more likely that [the Veteran] acquired the infection post-service than remote past during service", but the Board failed to indicate what independent medical evidence of record this conclusion was based on, noting that they (the parties) were unable to find any evidence of record indicating as much. The parties concluded that the Board erroneously relied on its own medical judgment in violation of Colvin. On remand, the Board was directed to reexamine the evidence of record and seek any other evidence it deems is necessary to render its decision, including addressing the requirements of VA Fast Letter 04-13. The Board notes that the VA "Fast Letter" issued in June 2004 (Fast Letter 04-13, June 29, 2004) indicated that transmission of hepatitis C virus with air gun injections was "biologically plausible," notwithstanding the lack of any scientific evidence so documenting. It also noted that it was "essential" that the report upon which the determination of service connection is made includes a full discussion of all modes of transmission, and a rationale as to why the examiner believes the air gun was the source of the Veteran's hepatitis C. To date, the Veteran has not been provided a VA examination addressing whether his current hepatitis C may be related to his active service. In light of the foregoing, as well as the competent evidence of record, including a current disability and the Veteran's contention that he contracted hepatitis during service, and consideration of VA Fast Letter 04-13, the Board finds that a medical nexus opinion is necessary to assist in determining the probable etiology of the Veteran's hepatitis C, especially in terms of the likelihood it results from the inoculations he received during service from the immunization gun. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board also notes that in a memorandum dated in March 2005 (which appears to be an error as the memorandum was signed in March 2006), the RO made a formal finding of the unavailability of service medical records in this matter. In a letter dated in September 2013, the Veteran's representative noted that this memorandum "demonstrates a thorough search for service medical records", but that it was "clear that the search did not include alternate records including [the] Veteran's personnel records". The representative also noted that in a letter dated in April 2006, the Veteran was advised that after a diligent search the RO could not locate his service medical records, but also noted that the RO did not inform him that other evidence might be available or assist in the development of alternative evidence to support the Veteran's claim. The representative noted that an initial request (in July 2013) and a follow-up request (in September 2013) had been submitted to the National Personnel Record Center (NPRC) requesting records from the Veteran's OMPF (Official Military Personnel File), and that the NPRC had confirmed receipt of the request, but advised that it was still being processed. It is unclear as to the status of this request made to the NPRC regarding the Veteran's service personnel records; thus, on remand, all attempts to obtain the Veteran's service personnel records should be documented. 2. Bilateral Hearing Loss The Veteran contends that his current hearing loss is related to his active service. He testified that while his MOS was a chemical operations specialist, he was exposed to acoustic trauma during service due to his being around artillery tanks and grenades which were additional duties assigned to him. He states that he loaded tanks during service and was transported in an armored personnel carrier. He reported that he loaded the tanks and was present when they were fired. What is at issue in this matter is whether the Veteran has bilateral hearing loss disability (pursuant to 38 C.F.R. § 3.385) related to his reported exposure to excessive noise in service. For the purpose of applying the laws administered by VA, impaired hearing is considered a "disability" when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the above frequencies are 26 decibels or higher; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In the prior remand in May 2011, the Board noted that the Veteran was competent to assert the occurrence of an in-service injury, i.e., exposure to acoustic trauma. The Board also noted that the Veteran had been "diagnosed with severe hearing loss" (in June 2009), but indicated that the Veteran had not undergone a VA examination to determine the nature and etiology of his hearing loss. In the remand, the Board directed that the Veteran be afforded a VA audiological examination, and that the examiner provide an opinion as to whether it is at least as likely as not that any current bilateral hearing loss was related to active service. The Board also noted that the examiner should be advised that the Veteran's service treatment records were unavailable and that this was not fatal to the claim, because service connection may still be established if a claimant currently satisfies the criteria of 38 C.F.R. § 3.385, and the evidence links current hearing loss with service. 38 C.F.R. § 3.303(d); see also Hensley v. v. Brown, 5 Vet. App. 155, 157 (1993). The Board also directed that the examination include appropriate audiometric and speech discrimination testing of both ears; that the findings of pure tone decibel loss at 1000, 2000, 3000 and 4000 Hertz be numerically reported and speech recognition be derived using the Maryland CNC Test; that the examination must be conducted without the use of hearing aids; and that the examiner should provide a discussion of the Veteran's audiological history and claimed in-service noise exposure. In reviewing the January 2013 VA DBQ examination, the Board finds that while there was substantial compliance with the remand directives from May 2011, the examiner appears to have relied on an incomplete version of the Veteran's audiological history. In that regard, the Board will provide a brief review of the Veteran's audiological history, and request that a supplemental medical opinion be obtained in order to include consideration of his complete audiological history. With regard to the Veteran's audiological history, the Board notes that on an enlistment examination for the Army National Guard, dated in January 2002, the Veteran denied a past or current history of hearing loss. Audiological testing revealed pure tone thresholds for the right ear, in decibels, at 500, 1000, 2000, 3000, and 4000 hertz as follows: 0, 0, 5, 10, and 15, and pure tone thresholds for the left ear, in decibels, at 500, 1000, 2000, 3000, and 4000 hertz follows 0, 0, 5, 5, and 10. An October 2007 VA audiology consultation report showed that the Veteran was seen for hearing evaluation, and reported hearing loss in both ears and periodic tinnitus. It was noted that he had a history significant for military noise exposure including working around tanks. He denied all other ear-related symptoms. It was noted that audiometric testing showed normal hearing in the right ear and normal hearing, with the exception of a mild hearing loss at 2000 hertz and 4000 hertz, in the left ear. Word recognition was 96% in the right ear and 92% in the left ear. The Veteran was counseled regarding the results, and that he was demonstrating primarily normal hearing in both ears. An April 2009 VA audiology consultation report showed that the Veteran reported that his ears had been buzzing for two years, and that he had decreased hearing for the last five years. He was last seen for a hearing evaluation in October 2007, and he thought his hearing may have gotten worse. It was noted that audiometric testing in October 2007 revealed mild/moderate sensorineural hearing loss from 250-8000 hertz bilaterally, and speech discrimination was good at 96% bilaterally. In April 2009, it was noted that hearing thresholds had decreased significantly at 500, 2000, 3000, 4000, 6000, and 8000 hertz in the right ear and at 500, 1000, 6000, and 8000 hertz in the left ear, when compared with the previous audiogram from October 2007. It was noted that the Veteran was a candidate for open-fit hearing aids. The audiological evaluation revealed pure tone thresholds for the right ear, in decibels, at 500, 1000, 2000, 3000, and 4000 hertz as follows: 30, 35, 30, 35, and 35, and pure tone thresholds for the left ear, in decibels, at 500, 1000, 2000, 3000, and 4000 hertz as follows 40, 35, 40, 35, and 40. Speech recognition scores using the Maryland CNC Test were 96 percent in the right and left ears. A June 2009 VA audiology note showed that the Veteran was seen for a new user hearing aid evaluation and issuance. It was noted that he had been previously evaluated and found to exhibit significant hearing loss for which amplification was recommended. In a September 2011 VA treatment record, it was noted that the Veteran continued to be hard of hearing. He reported he ordered his batteries (for his hearing aids) through VA, and he was instructed to contact his social worker and talk with his nurse to make arrangements to order his hearing aid batteries. He reported his hearing aids were with a friend. An audiological screening form dated in November 2011, from the Vanderbilt Coalition for Healthy Aging, revealed pure tone thresholds for the right ear, in decibels, at 500, 1000, and 2000 hertz as follows: 90, 100, and 95, and for the left ear as follows 90, 95, and 95. A VA treatment record showed that in January 2012, the Veteran was seen for a hearing assessment, and it was noted that he had been previously seen in this clinic in April 2009 and found to have mild to moderate sensorineural hearing loss, bilaterally. When asked what brought him to the clinic that day, he produced a remand form from the RO and requested a ratings exam as part of an ongoing claim. He was advised that a ratings examination could only be performed with a direct request from the RO. He was advised he could still have his hearing tested today, but it would not qualify for rating purposes nor satisfy the requirements of the remand form. The Veteran agreed to having his hearing tested that day and asked to have a copy of his hearing test. He stated that his hearing has decreased in both ears since his last test in 2009. It was noted that audiometric testing revealed thresholds that were inconsistent with the SRT (speech recognition threshold) and with prior test results despite reinstruction. The audiologist noted that based on this finding, testing was discontinued. The audiological report from January 2012 revealed pure tone thresholds for the right ear, in decibels, at 500, 1000, 2000, and 4000 hertz as follows: 75, 80, 85, and 90, and for the left ear, as follows 75, 75, 90, and 90. On a VA DBQ (disability benefits questionnaire) examination in January 2013, audiological test results revealed pure tone thresholds for the right ear, in decibels, at 500, 1000, 2000, 3000, and 4000 hertz as follows: 20, 20, 15, 15, and 20, and for the left ear as follows 20, 25, 25, 25, and 25. Speech recognition scores using the Maryland CNC Test were 94 percent in the right and left ears. The diagnosis was normal hearing in the right and left ears. The examiner indicated that the Veteran did not have current hearing loss for VA purposes, therefore, there was no hearing loss to opine on at the current time. The examiner noted that the Veteran was last tested by a student at a "Tennessee VA" in 2011, with results revealing a profound loss in both ears, and that the Veteran was issued hearing aids. The VA examiner in January 2013 also noted that the Veteran was tested that day with headphones and inserts, and was able to hear at a normal conversational level or lower without amplification in a quiet setting. It was noted that discrimination testing was successfully completed at 55 dB in both ears, and that the Veteran was reinstructed at length on the test procedures. The examiner indicated that the results from that day's examination were accurate and suitable for reporting. The Board notes that while the January 2013 VA DBQ examination did conclude that the Veteran had normal hearing in the right and left ears based on audiometric testing, in April 2009 the Veteran underwent audiometric testing at a VA facility, which appeared to show that he had bilateral hearing loss disability pursuant to 38 C.F.R. § 3.385 at that time. The VA examiner in 2013 did not address this April 2009 audiological test, but, rather, noted that the Veteran was last tested by a student at a "Tennessee VA" in 2011, with results revealing a profound loss in both ears, and also noted that the Veteran was issued hearing aids. It appears that the VA examiner in 2013 may have been referring to an audiological screening form, dated in November 2011, from the Vanderbilt Coalition for Healthy Aging, which does not comport with the requirements of 38 C.F.R. § 3.385, but nonetheless suggests that the Veteran may have exhibited at least some degree of hearing loss. the record appears to contain conflicting medical evidence regarding whether the Veteran has current right and/or left knee disabilities. In McClain v. Nicholson, 21 Vet. App. 319, 321-323 (2007), the Court stated that the requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim . . . even though the disability resolves prior to the Secretary's adjudication of the claim." Further, in Barr v. Nicholson, 21 Vet. App. 303, 311 (2007), the Court held that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, VA must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Because there is competent medical evidence showing that the Veteran may have had bilateral hearing loss disability in April 2009, in considering the record in the light most favorable to the Veteran, the Board finds it necessary to obtain an addendum opinion from the 2013 VA examiner, if available., in order to consider the Veteran's varied audiological history. The Board also notes that Veteran is competent to report that he was exposed to excessive noise in service and that he has had hearing loss since then. In that regard, a Veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). On remand, the VA examiner should be advised as to the Veteran's competency to report lay-observable events (exposure to noise) and on the presence of symptoms (hearing loss). However, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435(2011), as to the specific issue in this case, the presence and probable etiology of a hearing loss disability falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, supra. Accordingly, the case is REMANDED for the following action: 1. Follow up on the request made to the NPRC for a copy of the Veteran's OMPF (Official Military Personnel File). A negative reply should also be requested. If no additional records are obtained, thereafter, contact any other appropriate records repository in order to try to obtain copies of the Veteran's service personnel records and/or OMPF. All efforts taken in this regard should be documented in the record. 2. Schedule the Veteran for an appropriate VA examination to address the probable etiology of his hepatitis C. The examiner must review the claims folder, and the report must include a notation that this review has occurred. a. The examiner should be asked to provide an opinion, with supporting rationale, as to whether it is at least as likely as not that the Veteran's hepatitis C is related to his military service, to include immunization/air gun injections. The examiner must identify all of the Veteran's potential risk factors for contracting hepatitis C, to include whether those risk factors occurred prior to, during, or subsequent to service. b. The examiner must specifically comment on Fast Letter 04-13 (June 29, 2004), in which VA's Acting Director, Compensation and Pension Service stated that despite the lack of any scientific evidence to document transmission of the hepatitis C Virus with air gun injectors, such transmission was nonetheless biologically plausible. To the extent possible, the examiner should explain which of the reported hepatitis risk factors is the most likely cause of the Veteran's current hepatitis C. c. The examiner must explain the rationale for any opinion(s) given, and if unable to provide the requested opinions without resorting to speculation, the examiner should clearly and specifically so specify, along with an explanation as to why that is so. Further, if the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Forward the claims folder, to include a copy of this remand, to the VA examiner who conducted the January 2013 VA DBQ examination, for a supplemental opinion regarding the claim for service connection for bilateral hearing loss. Request that the examiner review the claims folder, to include the Veteran's complete audiological history and to specifically include the audiological findings in April 2009 which reveal bilateral hearing loss disability pursuant to 38 C.F.R. § 3.385, and note that such review has been accomplished. If the prior examiner is not available, or is unable to provide a supplemental opinion, forward the claims folder and a copy of this remand to another appropriate examiner in order to render the requested medical opinion. a. The examiner should be made aware of the Veteran's description of noise exposure during service, and should be advised as to his competency to report lay-observable events (i.e., exposure to excessive noise) and on the presence of symptoms (i.e., hearing loss). b. The examiner should be asked to clarify the finding that the Veteran had no current bilateral hearing loss disability, especially in light of the April 2009 VA audiological evaluation which appears to show bilateral hearing loss pursuant to 38 C.F.R. § 3.385. c. The examiner should be asked to provide an opinion as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that any hearing loss disability exhibited by the Veteran had its onset in service or is causally related to his reported excessive noise exposure in service, or whether such onset or causation is unlikely (i.e., less than a 50-50 probability). d. The examiner must explain the rationale for any opinion(s) given, and if unable to provide the requested opinions without resorting to speculation, the examiner should clearly and specifically so specify, along with an explanation as to why that is so. Further, if the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Once the above-requested development has been completed, the claims must be readjudicated. If any determination remains unfavorable to the Veteran, he and should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claims for benefits, be given an opportunity to respond, and the case must then be returned to the Board for further appellate consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ FRANK J. FLOWERS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).