Citation Nr: 1332223 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 04-39 074 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for bilateral sensorineural hearing loss. 2. Entitlement to service connection for a right wrist disorder. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1974 to September 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied the claims. Jurisdiction of the claims was subsequently transferred to the RO in Pittsburgh, Pennsylvania. In June 2006, September 2010, February 2012, and December 2012, the Board remanded the case to the RO for additional evidentiary development. As discussed in more detail below, the Board finds there was substantial compliance with its remand orders and that it may therefore proceed with a determination of the issues on appeal. See Stegall v. West, 11 Vet. App. 268 (1998). A review of the Virtual VA paperless claims processing system reveals additional medical records from the Tuscaloosa, Butler, Pittsburgh and Birmingham VA Medical Centers (VAMCs). The VBMS paperless claims system does not contain any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. Affording the Veteran the benefit of the doubt, the currently diagnosed bilateral sensorineural hearing loss is related to military service. 2. The competent medical and competent and credible lay evidence of record demonstrates that the Veteran's right wrist disorder is related to active duty. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral sensorineural hearing loss have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2013). 2. The criteria for service connection for a right wrist disorder have been met. 38 U.S.C.A. §§ 1110, 1111, 1153 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The VA has statutory duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In light of the favorable action taken by the Board, any defects with respect to the duties of notice or assistance are non-prejudicial. II. Compliance with Prior Board Remands The Board previously remanded this matter in June 2006, September 2010, February 2012 and December 2012. The purpose of the June 2006 remand was to provide the Veteran adequate notice, obtain the Veteran's complete service treatment records (STRs), and afford the Veteran a VA examination for his hearing loss and wrist disorder. Appropriate notice was provided in a July 2007 letter, a formal finding of unavailability of STRs was made in December 2007, and the Veteran received VA audiological and wrist examinations in January 2008. The case was remanded in September 2010 in order to obtain the Veteran's service personnel records, STRs from the 121 Medical Hospital in Seoul, Korea and all outstanding VAMC records. A formal finding of unavailability of the 121 Medical Hospital records was made in March 2011 and additional VAMC records were obtained dating from July 2008 to September 2010. However, in February 2012, the case was again remanded by the Board in order to obtain VAMC records prior to July 2008 and subsequent to September 2010. Upon remand, further VAMC records were obtained. Another remand was necessary in December 2012 as the Board found that VAMC records from September 1977 to April 1996 should be obtained in addition to new VA examinations for the Veteran's hearing loss and wrist condition. In August 2013, the Tuscaloosa VAMC confirmed no additional records were available from September 1977 to April 1996. VA examinations for the Veteran's hearing loss and wrist condition were conducted in April 2013. It appears there was substantial compliance with the prior remand orders and the Board may continue with its determination. Stegall, 11 Vet. App. at 271; see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). III. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Pursuant to 38 C.F.R. § 3.303(b), when a chronic condition is present, such as hearing loss or arthritis, a claimant may establish the second and third elements by demonstrating continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A claimant may rely on lay evidence "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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran's statements are competent evidence as to what he experiences; i.e., his statements are competent to report that he has experienced problems hearing and had pain in his right wrist. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding a veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). A veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. When the evidence "is in relative equipoise," the law dictates that the veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Bilateral Sensorineural Hearing Loss Under 38 C.F.R. § 3.385, for VA purposes, impaired hearing will be considered to be a "disability" when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory threshold 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. Id. The absence of evidence of hearing loss in service is not a bar to an award of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The Veteran claims his bilateral hearing loss is attributable to noise exposure in the military where he served as a stock clerk in a warehouse located next to an airstrip and was not provided with ear protection. See Pittsburgh VAMC, Audiology Consult, June 2009; see also VA Audiological Examinations, January 2008 and November 2003. In addition, he claims in-service acoustic trauma exposure from firearms during basic training. Id. Post-service, the only indication that the Veteran was exposed to noise was working for two months in a boiler room without hearing protection. See VA Audiological Examination, January 2008. The Board finds the Veteran's description of in-service noise exposure is credible; the description is generally consistent with the known circumstances of his military service. Acoustic trauma in-service is conceded. The Veteran's available STRs are silent as to any complaints, treatment or diagnoses of hearing loss. The Veteran's September 1974 entrance examination noted his ears were normal and that he had normal hearing. The Veteran reported that he had no history of hearing loss. The remainder of the Veteran's STRs were found to be unavailable. See Formal Finding of Unavailability of Service Records, December 2007. A November 2003 VA audiogram shows the Veteran's right ear hearing loss meets VA's disability requirements. In circumstances such as this, where the original STRs are unavailable, the Board has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Veteran has consistently claimed that he has experienced bilateral hearing loss since service as a result of exposure to acoustic trauma in-service. See Veteran's Application for Compensation and/or Pension, March 2004; VA Examinations, November 2003 and January 2008. The earliest VAMC records in the file, from April 1996, document the Veteran's complaints of hearing loss due to his military service. See Tuscaloosa VAMC, History & Physical, April 1996. The Veteran's statements concerning such noise exposure are credible, as they are consistent with his service record and acoustic trauma in-service has been conceded. The Veteran's lay statements of experiencing hearing loss since service must be accorded some weight, as they are competent, credible, and therefore persuasive regarding the onset and continuing symptomatology of his hearing loss since 1977. See Jandreau, 492 F.3d at 1377; see also Charles, 16 Vet. App. at 374. The Board concludes that the Veteran's lay evidence provides a medically sound basis to attribute his current hearing loss to noise exposure in service. The Board acknowledges that the record includes a negative nexus opinion, which was based, in part, on the fact that the there were no documented complaints of hearing loss until 2003. See Independent Medical Opinion (IMO), June 2013. Conversely, the record shows the Veteran's consistent complaints of hearing loss as a result of his military service since 1996. See Tuscaloosa VAMC, History & Physical, April 1996 (hearing loss due to qualifying on rifle range); see also Tuscaloosa VAMC, Nursing Assessment, May 1996 (slight hearing problems); Birmingham VAMC, Primary Care Note, May 2001 (difficulty hearing); Birmingham VAMC, Audiology Consult, June 2001 (Veteran has bilateral sensorineural hearing loss and hearing aids were ordered); Birmingham VAMC, Addendum, April 2002 (Veteran has trouble hearing). Additionally, the June 2013 independent medical opinion recited the Veteran's September 1974 audiogram results incorrectly and failed to consider the Veteran's credible statements that he has experienced hearing loss continually from service to the present. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). Therefore, the June 2013 independent medical opinion examination has limited probative value. There is evidence against the Veteran's claim for hearing loss, inasmuch as the contemporaneous record does not document a hearing loss disability for many years after service and the independent medical opinion provides as negative nexus. As discussed above, however, earlier STR and VAMC records were unavailable, the independent medical opinion has limited probative value, and the Veteran has provided competent, credible evidence of service onset and continuity of hearing loss. Given these factors, the Board finds the evidence is in equipoise as to whether the Veteran's hearing loss is related to service. The evidence of record demonstrates that the Veteran has current bilateral sensorineural hearing loss; that he had normal hearing upon entry into service; that he was exposed to acoustic trauma in service with no hearing protection; and that, he has experienced hearing loss since service. In such circumstances, the benefit of the doubt goes to the Veteran; consequently, service connection is granted. See 38 U.S.C.A. § 5107(b); see also Gilbert, 1 Vet. App. at 55-56. Right Wrist Disorder The Veteran contends that his right wrist disorder began in-service. See Veteran's Application for Compensation and/or Pension, March 2004. Specifically, the Veteran claims that while in-service in 1976, he fell, fractured his wrist, and was required to wear a cast for six months. See VA Examination, October 2003. The Board observes that the Veteran's September 1974 enlistment examination noted his upper extremities were normal and the Veteran reported no history of swollen or painful joints or broken bones. As discussed above, the remainder of the Veteran's STRs are unavailable, imposing upon the Board a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare, 1 Vet. App. at 367. The evidence of record shows the Veteran currently has arthritis in his right wrist. See VA Examinations, October 2003 and January 2008. As arthritis is considered a chronic condition, the Veteran may establish an in-service injury and nexus by demonstrating continuity of symptomatology. See 38 C.F.R. § 3.303(b); see also Walker, 708 F.3d at 1338-39. The earliest VAMC records in the file document the Veteran's complaints of right wrist pain due to an injury incurred in-service. See Tuscaloosa VAMC, History & Physical, April 1996 (Veteran noted a strain of his right wrist in-service). While the record shows in April 1996 the Veteran described his in-service right wrist injury as a strain, from May 1996 onwards, the Veteran has consistently described his in-service right wrist injury as a fracture. See Tuscaloosa VAMC, Nursing Assessment, May 1996 (wrist fracture); see also Birmingham VAMC, Primary Care Outpatient Note, April 2003 (fractured right wrist in the military); see also Birmingham VAMC, Physical Medicine Rehab Education Note, July 2003 (history of right wrist fracture in the military, wrist brace obtained); see also VA Examinations, October 2003, January 2008 and April 2013. The Board finds the Veteran's lay statements of experiencing a right wrist fracture in-service must be accorded some weight, as they are competent, credible, and therefore persuasive regarding the onset and continuing symptomatology of his right wrist condition since 1976. See Jandreau, 492 F.3d at 1377; see also Charles, 16 Vet. App. at 374; see also Walker, 708 F.3d at 1338-39. During the Veteran's October 2003 VA examination, he stated that while in-service in 1976, he fell down and suffered a fracture of his right wrist that required a cast for approximately six months. He claimed to have continued aching sensations in his right wrist since that time, with his symptoms getting worse over time. The Veteran was wearing a right wrist brace and mainly used his left hand for all activities. The Veteran's right wrist had significant limitation on range of motion and an x-ray showed posttraumatic deformity of the right scaphoid bone with secondary degenerative osteoarthrosis of the radiocarpal joint. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1345 (32nd ed. 2012) (osteoarthrosis is defined as osteoarthritis). The VA examiner's diagnosis of the Veteran's right wrist condition was status post fracture of the right wrist with chronic pain. No nexus opinion was provided. The Veteran underwent a second VA wrist examination in January 2008. The Veteran related a history of a 1976 in-service right wrist fracture with subsequent cast for six months. On physical examination, the Veteran complained of pain along the radial or lateral border of the wrist, over the scaphoid bone area. The Veteran had limited range of motion in the right wrist with positive pain flare-ups. He reported daily achiness in the joint. An x-ray showed the scaphoid bone appeared deformed and the diagnosis was right wrist degenerative joint disease. The VA examiner opined that it was more likely as not that the Veteran's current wrist pain and arthritis is due to his traumatic fracture during service. In April 2013, the Veteran was provided a third VA wrist examination. The VA examiner noted the Veteran's diagnosis of a right wrist fracture in 1976. On physical examination, the Veteran's wrist had some limitation of motion and evidence of painful motion. After a review of the Veteran's VA claims file, the examiner opined that as the 2008 x-rays showed scaphoid bone deformity, which is consistent with past trauma, it is more likely as not that the Veteran's current right wrist condition is related to his military service. This examination is adequate, as it considered the Veteran's statements and provided explanations for the opinion stated as well as the medical information necessary to apply the appropriate rating criteria. See Nieves-Rodriguez, 22 Vet. App. at 302-04. The Board finds the weight of the evidence, including the medical records, lay evidence and the VA examiners' positive nexus opinions, supports the conclusion that the Veteran's current right wrist disorder began in-service. Accordingly, service connection for the claimed disability is warranted. ORDER Entitlement to service connection for bilateral sensorineural hearing loss is granted. Entitlement to service connection for a right wrist disorder is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs