Citation Nr: 1333204 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 12-26 671 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for bilateral hearing loss, claimed as a bilateral ear condition. 2. Entitlement to service connection for diverticulitis, claimed as a colon condition. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD D. Havivi, Associate Counsel INTRODUCTION The Veteran had active service from November 1974 to October 1978. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The VA-9 on file is dated April 2013, which would not ordinarily be timely, as it was filed more than 60 days after the SOC and more than a year after the rating decision. However, the Board notes that there is evidence in the claims file that the Veteran filed a timely VA-9 Form in September 2012. That VA-9 is timely and therefore Board may proceed with the appeals process. A review of the Virtual VA paperless claims processing system and the Veterans Benefits Management System reveals no additional records which are pertinent to the present appeal. The issue of diverticulitis is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's bilateral hearing loss was as likely as not incurred in or aggravated by service. CONCLUSION OF LAW The requirements for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has specified duties to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The Board has considered whether further development and notice under the Veterans Claims Assistance Act of 2000 (VCAA) or other law should be undertaken. However, given the results favorable to the Veteran, further development under the VCAA or other law would not result in a more favorable outcome or be of assistance to this inquiry. Merits of the Claim The Veteran seeks service connection for bilateral hearing loss. Having carefully considered the claims in light of the record and the applicable law, the Board is of the opinion that the evidence is in equipoise, and therefore the criteria for entitlement to service connection for bilateral hearing loss have been met. Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury was incurred in service alone is not enough. Instead, there must be a chronic disability resulting from that injury. 38 C.F.R. § 3.303. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Generally, to prove service connection, the record must contain evidence concerning: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Several alternative paths to service connection exist for certain chronic diseases identified in 38 C.F.R. §3.309(a), such as organic diseases of the nervous system, including sensorineural hearing loss. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309; see Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013). The Veteran has a current hearing loss disability. For the 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 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 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. At the October 2009 VA examination, the Veteran demonstrated hearing acuity of 40 decibels or greater in the 4000 Hertz threshold bilaterally, and in the 3000 Hertz threshold in the right ear. She also demonstrated acuity of greater than 26 decibels in the 500 and 2000 Hertz thresholds in the right ear. Thus, the Veteran has a current disability in accordance with 38 C.F.R. § 3.385. The remaining questions, therefore, are whether there is evidence of an in-service occurrence of an injury or disease and whether there is evidence of a nexus or relationship between the current disability and the in-service disease or injury. In the instant case, the Veteran's service treatment record reflects treatment for her ears and decreased hearing. In July 1975, the Veteran complained of ear congestion and a decrease in hearing of her left ear. She was found to have wax impaction of both ears, and irrigation was recommended. In July 1977, she was treated for an occluded ear canal due to a cerumen (earwax) buildup. She was again recommended for irrigation and was told not to use Q-tips. In January 1978, she complained of decreased hearing and numbness in her ear, dating back three months. She thought her ear was stopped up with water. There is no record of a treatment recommendation. The Veteran's separation examination showed hearing in the normal range, with the exception of a result of 25 decibels in the right ear at the 4000 Hertz frequency. "The threshold for normal hearing is from 0 to 20 dB [decibels], and higher thresholds indicate some degree of hearing loss." Hensley v. Brown, 5 Vet. App. 155, 157 (1993). While this is outside the "normal hearing" range, it is not considered to be a disability, per 38 C.F.R. § 3.385. Therefore, while there is no diagnosis of chronicity for her hearing loss disability in service, the service treatment records do note decreased hearing on several occasions. The Veteran has also presented statements alleging exposure to noise exposure while serving in the military. In a December 2008 statement received January 2009, the Veteran described noise from her training where she was exposed to helicopters and firing weapons. She stated that the trainings were once every three months. The Veteran is competent to describe the symptoms she has experienced and the noises she heard during service. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Although her Military Occupational Specialty was Medical Records Specialist, the Board concedes some noise exposure due to the Veteran's regular training involving firearms and helicopters. Although there is no diagnosis of chronicity for the Veteran's in-service decrease in hearing, service connection can be warranted by continuity of symptomatology after discharge. If a chronic disease is noted during service, but is either not chronic or the diagnosis could be questioned, then a showing of continuity of related symptomatology after discharge is required in order to grant service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1336. Hearing loss is not in the list of chronic diseases in 38 C.F.R. § 3.309(a), to which Walker limited this method of service connection. Id. However, organic diseases of the nervous system are listed in 38 C.F.R. § 3.309(a), and sensorineural hearing loss falls into this category. Therefore, a chronic disability listed in 38 C.F.R. § 3.309(a) was noted in service, though its chronicity was not yet established. In April of 2008, the Veteran sought treatment for congested ears at a VA medical center. In her October 2009 VA examination, she reported to the examiner that she had been experiencing hearing loss since her early twenties. As the Veteran entered active service at age 20, this places the beginning of her hearing loss during service. The Board finds the Veteran's statement concerning her hearing loss since service competent, as they are something which she experienced and credible, as it is corroborated by the treatment during and after service for ear disabilities. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). Therefore, there is competent and credible evidence of continuity of symptomatology for bilateral hearing loss. The VA examiner did not draw a nexus between the Veteran's service and her current disability. The Veteran was afforded a VA audio examination in October 2009, to which an addendum was added in June 2012. In the addendum, the examiner noted that the Veteran did not show any significant change in hearing between her entry and separation audio examinations. She also noted the Veteran's treatment for cerumen impaction which caused a decrease in hearing. The examiner opined that for these reasons, it was less likely than not that the Veteran's hearing loss was due to military noise exposure. In order to rebut the presumption of service connection invoked by continuity of symptomatology, there must be "affirmative evidence to the contrary." 38 C.F.R. § 3.307(b). While the examiner does reach a negative etiological conclusion, the examination is inadequate. The VA examiner mentioned, but did not take into account the Veteran's credible statements regarding her in-service noise exposure and continuous hearing disability since service. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury but relied on the service medical records to provide a negative opinion). These should have been commented upon or addressed in the rationale addendum of June 2012. However, it appears that the examiner only based her opinion on the service treatment records. While the Board could remand for another exam, that would be an undue delay for this issue, as the Board is granting. When there is an approximate balance of evidence in favor and against the Veteran, VA is to give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). While there is some evidence that tends to show that the Veteran's hearing loss disability is not service-connected, such as the VA examination, there is also an unrebutted continuity of symptomatology that presumes a nexus between her hearing loss disability and her service. The Board finds that the evidence in this case is in equipoise. Therefore, based on its review of the relevant evidence, and giving the benefit of the doubt to the Veteran, the Board finds that it is as likely as not the Veteran's bilateral hearing loss is service-connected. Id. Accordingly, service connection for bilateral hearing loss is granted. ORDER Entitlement to service connection for bilateral hearing loss is granted. REMAND The Veteran has a current colon disability of diverticulosis with episodes of diverticulitis. However, the Board finds it necessary to remand for an addendum opinion regarding the VA examination. Because the VA undertook to give the Veteran an examination in March of 2009, it must ensure that the examination and opinion are adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board also finds it necessary to remand for further development of the case. The Veteran was diagnosed with diverticulitis in December 1994. Since then, she has continued to have abdominal pain and episodes of diverticulitis, with treatment at both private and VA facilities, including a sigmoid colectomy in August 2008. VA has a duty to assist the claimant in the development of the claim which includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. While the colectomy is mentioned in other treatment records, the records from the hospital performing the operation are not present. On remand, these records should be obtained. In the Veteran's medical records, a Dr. Don Roberts in Tifton is mentioned, but there do not appear to be any records from his office. On remand, these records should be obtained. In the July 2012 VA examination, the examiner opined that the Veteran's diverticulitis was not due to service, saying that stomach cramps and constipation could be symptoms of a variety of ills. However, in the same paragraph the examiner states that the likely source of the Veteran's diverticulitis could be chronic constipation. As chronic constipation was noted in the Veteran's service treatment records, the examiner should provide a clarifying opinion with full rationale concerning the Veteran's in-service chronic constipation and whether or not it relates to the Veteran's current diverticulitis disability. Furthermore, the examiner should discuss the Veteran's diverticular abscess and perforation, which are not discussed in the opinion. Records show treatment at a VA medical center. On remand, updated records should be obtained. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. First, undertake appropriate development to obtain any updated pertinent treatment records that are not already of the record. 2. Then the RO should obtain permission from the Veteran to acquire the records of Dr. Don Roberts in Tifton. These should then be associated with the claims file. 3. Then the RO should obtain information and permission from the Veteran to acquire the records of her colectomy surgery. These should then be associated with the claims file. 4. The RO is directed to obtain an addendum opinion from the intestinal surgery VA examiner. In this addendum opinion, the examiner should render an opinion concerning the Veteran's in-service chronic constipation and whether or not it relates to the Veteran's current diverticulitis disability. Furthermore, the examiner should discuss the Veteran's diverticular abscess and perforation, which are not discussed in the original opinion. These opinions are to include full rationales which support her conclusions. 5. Then, the RO/AMC shall then take such additional development action as it deems proper with respect to the claim. When the development has been completed, the case should again be reviewed on the basis of the additional evidence and readjudicated. If the benefits sought are not granted, the Veteran and his representative should be furnished Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant 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). ______________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs