Citation Nr: 1332577 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 09-31 229 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a claimed bilateral hearing loss. 2. Entitlement to service connection for the claimed residuals of a puncture wound to the left thigh. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1963 to June 1966. The Veteran received the Combat Infantryman Badge and Purple Heart. This appeal comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in May 2008 by the RO. A review of the Virtual VA paperless claims processing system and Veterans Benefit Management system does not reveal any additional documents pertinent to the present appeal except for the appellate brief. The issue of service connection for claimed bilateral hearing loss is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The currently demonstrated residual pain is shown as likely as not to be due to a left thigh puncture wound that was sustained by the Veteran while on active duty in the Republic of Vietnam. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, his disability manifested by a residual pain due to a puncture wound of the left thigh is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). To the extent that the action taken hereinbelow is favorable to the Veteran, further discussion of VCAA is not required at this time. Law and Regulations 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, 1131. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prevail on the merits on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances lay, evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be established by chronicity and continuity of symptomatology. See 38 C.F.R. § 3.303(b). However, 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 in cases where the disability resolves prior to the Secretary's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321-323 (2007). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 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. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b); see also 38 C.F.R. § 3.304(d). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Merits of the Claim As noted, the Veteran's service personnel records show that he received the Combat Infantryman Badge and Purple Heart based on his service in the Republic of Vietnam. These records also serve to show that the Veteran received a "punji" stake wound to the left thigh in March 1966 during a period of service in the Republic of Vietnam. As a result, the Board finds that the Veteran engaged in combat with the enemy during service and is entitled to the application of 38 U.S.C.A. § 1154(b). The Veteran asserts that he experiences residual pain due to the puncture wound sustained to the left thigh while he was on active duty. See February 2008 statement. The Board notes that the Veteran is competent to describe an observable injury such as sustaining a puncture wound to the left thigh. The Board finds that the Veteran's service personnel records are sufficient proof of this in-service injury. His lay assertions are sufficient proof of his current symptoms. The Veteran's lay statements are found to be credible as they have been consistent over the years and are confirmed by the circumstances of his service. Following his separation from service, in an October 2012 VA examination report for Posttraumatic Stress Disorder, the Veteran complained of pain in the left thigh where he was wounded. The Board finds that this is competent and credible evidence that the Veteran has current residual disability manifested by pain that as likely as not is due to the puncture wound to the left thigh sustained in service. In resolving all reasonable doubt in the Veteran's favor, service connection is warranted. ORDER Service connection for the residuals of a puncture wound of the left thigh is granted. REMAND The Veteran asserts that his claimed bilateral hearing loss is the result of in-service acoustic trauma exposure, to include due to loud noise incident to his combat duties in the Republic of Vietnam. Specifically, he worked as an infantryman and received the Combat Infantryman Badge and Purple Heart. Based on his military occupational specialty and credible reports of in-service noise exposure, the Board finds that the Veteran's contentions regarding his in-service noise exposure are consistent with the circumstances of his service. 38 U.S.C.A. § 1154(b) (West 2002). In connection with this initial claim for compensation filed in June 1971, the Veteran reported being treated for ear problems during service. The Veteran underwent a VA examination in April 2008. At that time, he reported being exposed to mortars and artillery fire during his combat service. He did not identify any post-service occupational and recreational exposure. The examiner opined that it was less likely as not the Veteran's hearing loss was caused by or a result of his military service. The examiner stated that the separation audiogram "was not clear but seems to indicate normal hearing, bilaterally." When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). On review, it appears that the examiner based his opinion on a finding that there was no evidence of hearing loss at the time of discharge from service. However, the examiner did not address the Veteran's reported in-service noise exposure to include mortars, artillery and other weapons. Further, the examiner did not appear to consider the Veteran's in-service hearing loss complaints. In the June 1963 Report of Medical History, the Veteran noted "running ears." His service treatment records note treatment for right ear pain, itching and discharge. In January 1965, he was diagnosed with otitis externa. In his June 1966 Report of Medical History, the Veteran indicated that he had ear, nose or throat trouble and he had frequent trouble with his ears. Based on the foregoing, the Board finds that additional medical opinion, which considers the in-service noise exposure and the Veteran's lay statements of having ear problems during service, is necessary for the purpose of determining the nature and etiology of currently diagnosed hearing loss, to include as secondary to the service-connected tinnitus. Finally, as there is some suggestion in the record of a relationship between the Veteran's claimed sensorineural hearing loss and his service-connected tinnitus, the Veteran should be given proper notice of the requirements for establishing secondary service connection, according to 38 C.F.R. § 3.310. Accordingly, the case is REMANDED to the RO for the following action: 1. The RO should provide the Veteran with appropriate notice of VA's duties to notify and to assist with regard to substantiating a claim of secondary service connection. 2. The RO should take all indicated action to refer the Veteran's file to a VA examiner for additional opinion as to the nature and likely etiology of the claimed hearing loss disability. An additional audiology examination is not needed, unless considered necessary by the VA examiner. The examiner should review the claims folder and note such review in the examination report. The examiner should note that a history of noise exposure during service has been conceded to due to the Veteran's combat status and that treatment for ear problems has been document in the service treatment records. Following a review of the Veteran's entire record, including the service treatment records, the examiner should address the following: (a) Is it at least as likely as not (50 percent probability or more) that the Veteran has a bilateral sensorineural hearing loss disability is due to his exposure to excessive noise levels or his documented ear manifestations during his period of active service. (b) Is it at least as likely as not (50 percent probability or more) that the claimed hearing loss disability was caused or aggravated by the service-connected tinnitus? A complete rationale for any opinion expressed must be provided. 2. After completing all indicated development, the RO should readjudicate the claim remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, then the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case (SSOC) and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs