Citation Nr: 1334326 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 06-11 498 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disorder (COPD). 2. Entitlement to service connection for gastroesophageal reflux disease (GERD). 3. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from April 1967 to April 1969. This matter comes to the Board of Veterans Appeals (Board) from a December 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In June 2010, the Board remanded the appeal for further development, and it now returns to the Board for appellate review. In December 2007, the Veteran presented testimony at a Travel Board hearing at the RO before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims folder. Since the last adjudication of the appeal by the agency of original jurisdiction (AOJ), the Veteran submitted a personal statement in support of his claim. See 38 C.F.R. § 20.1304 (2012). The Board notes that the Veteran, through his representative, waived AOJ consideration of this evidence. Id. Therefore, the Board may properly consider such evidence in rendering its decision. The issues of entitlement to ratings in excess of 10 percent each for service-connected lumbar spine, cervical spine, right upper extremity, right lower extremity, and tinnitus disabilities and entitlement to a total disability rating due to individual unemployability for compensation purposes were raised by the Veteran in a July 2013 submission, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issues of entitlement to service connection for COPD and GERD are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran was exposed to noise in service. 2. Resolving all doubt in the Veterans favor, bilateral hearing loss is a result of noise exposure in service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 101(24), 1101, 1110, 1112, 1113, 1116, 1137, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.301, 3.303, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants entitlement to service connection for bilateral hearing loss, which constitutes a complete grant of the Veterans claim. Therefore, no discussion of VAs duty to notify or assist is necessary. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a). Service connection may also 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). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr, 21 Vet. App. at 309. The Veteran reports injury to his hearing from machine gun fire, exploding mortars, and artillery during combat. While specific incidents of noise exposure are not documented in his service treatment records, the Board observes that the Veteran is competent to speak to the incident having occurred. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). Moreover, the Veteran served in combat and earned the Combat Infantryman's Badge. Therefore, his statements regarding noise exposure are considered credible if consistent with the circumstances of his service. 38 U.S.C.A. § 1154(b). Therefore, the Board finds that the Veteran suffered hazardous noise exposure in military service. 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, 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. The Court has held that service connection may be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss that first met VAs definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veterans service treatment records are negative for complaints, treatment, or diagnosis pertinent to hearing difficulty. The clinical examination at separation was normal. However, post-service records demonstrate a diagnosis of bilateral hearing loss. Specifically, at the January 2012 VA audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 15 20 55 LEFT 15 20 20 15 50 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 92 percent in the left ear. The Veteran was diagnosed as having sensorineural hearing loss in both ears. Therefore, the Board finds that the contemporary medical evidence demonstrates a current bilateral hearing loss as defined by 38 C.F.R. § 3.385. The Board observes that there are conflicting medical opinions of record. The Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of material contained in a record; every item of evidence does not have the same probative value. The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Struck v. Brown, 9 Vet. App. 145, 152 (1996). The January 2012 audiologist opined that the Veterans bilateral hearing loss is not at least as likely as not caused by or a result of an event in military service and stated that, despite the Veterans intense combat noise exposure in Vietnam, the Veterans separation physical showed normal hearing thresholds bilaterally. However, this is not a sufficient basis for a negative opinion. Hensley, 5 Vet. App. at 159; see also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and medically sound reasoning for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley, 5 Vet. App. at 159. Therefore, this opinion is inadequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In contrast, one of the Veterans treating physicians, Dr. Lurakis, opined in August 2010 that the Veterans hearing loss was at least as likely as not caused by his multiple incidents of noise exposure in service. In support of the opinion, the examiner noted the Veterans lack of occupational noise exposure after his military career. The Board notes that the private physician did not indicate review of the claims file, but finds that this fact alone does not render that examination inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The physicians knowledge of the Veterans in-service noise exposure is consistent with the Veterans reported noise exposure in the claims file and with his combat experience. Therefore, the Board finds that the lack of claims file review does not render the opinion inadequate for rating purposes. It is important to point out at this juncture that it is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. Based on the above, the Board finds that the evidence is in relative equipoise. Thus, when resolving all doubt in the Veterans favor, the Board finds that there is a causal relationship between the Veterans military service and his current bilateral hearing loss. Accordingly, service connection for bilateral hearing loss is granted. ORDER Entitlement to service connection for bilateral hearing loss is granted. REMAND In June 2010, the Board remanded the appeal so that VA examinations could be conducted for the Veterans claims of entitlement to service connection for COPD, and GERD. The examinations were performed in January 2012. However, the Boards review of the examination reports shows that the opinions are inadequate. With respect to the COPD claim, the Board asked in the remand that the examiner opine as to whether the Veterans COPD is related to service or any incident in service, including in-service exposure to Agent Orange. The examiner noted the Veterans history of cigarette smoking for many years and opined that the Veterans COPD is at least as likely as not related to cigarette smoking which he started while in military service. However, the examiner did not address the Veterans Agent Orange exposure; in fact, the examiner did not even note the exposure in the Veterans history. Therefore, the Board finds that the VA opinion is not compliant with the Boards June 2010 remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). With respect to the GERD, the VA examiner opined that the Veterans GERD was less likely than not caused by an in-service event, injury, or illness. In support of the opinion, the examiner noted that there is no evidence that the Veteran was treated for gastrointestinal symptoms in service, as well as a September 2010 letter from Dr. Ljubich that stated that the Veterans GERD symptoms started in 1995. However, the Boards review of the file shows that the September 2010 letter from Dr. Ljubich does not state that the Veterans symptoms of GERD began in 1995, but that the diagnosis was established in 1995. Thus, the VA examiner did not adequately consider whether the Veterans GERD was present prior to the date of the first diagnosis. Additionally, an October 1998 letter from Dr. Ojserkis states that the Veteran was diagnosed with GERD in 1994, a year earlier than identified by Dr. Ljubich. Moreover, the Veteran has raised the theory of entitlement to service connection for GERD as secondary to medications taken for his service-connected disabilities. An August 2010 letter from Dr. Lurakis states that the Veterans GERD is provoked by the anti-inflammatories he takes for his service-connected back disability and so is at least as likely as not caused by those medications. As part of the opinion on GERD requested in the June 2010 remand, the Board asked that the examiner opine as to whether the GERD was caused or aggravated by treatment for a service connected disability, but the examiner only addressed the question of direct service connection. Theerefore, the opinion was not compliant with the June 2010 remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). For these reasons, the claim of entitlement to service connection for GERD must be remanded for a second time. Accordingly, the case is REMANDED for the following action: 1. Send the claims file to the January 2012 VA respiratory examiner, or to another equally qualified examiner, and ask for a clarification of the January 2012 opinion with respect to whether the Veterans COPD is associated with his exposure to herbicides in service. The examination report should reflect that review of the claims file occurred. Upon a review of the record, the examiner should respond to the following: Is it at least as likely as not (50 percent probability or greater) that the Veterans COPD is related to service or any incident of service, to include in-service exposure to Agent Orange? As a Vietnam Veteran, the appellant is presumed to have been exposed to Agent Orange in service. A complete rationale for any opinion offered should be provided. If the addendum opinion cannot be provided without another clinical examination of the Veteran, such examination should be scheduled. 2. Send the claims file to the January 2012 VA gastrointestinal examiner, or to another equally qualified examiner, and ask for a clarification of the January 2012 opinion with respect to whether the Veterans GERD and its relationship to the medications the Veteran takes for his service-connected orthopedic disabilities. The examination report should reflect that review of the claims file occurred. Upon a review of the record, the examiner should respond to the following: a. Is it at least as likely as not (50 percent probability or greater) that the Veterans GERD began in service, or is otherwise related to service? b. Is it at least as likely as not (50 percent probability or greater) that the Veterans GERD was caused by prescribed medications for treatment of his service-connected disabilities including his orthopedic disabilities? Aggravation is defined as a permanent worsening beyond the natural progression of the disease. A complete rationale for any opinion offered should be provided. If the addendum opinion cannot be provided without another clinical examination of the Veteran, such examination should be scheduled. 3. After completing the above development, and any other development deemed necessary, readjudicate the issues on appeal. If any benefit sought remains denied, provide a supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. The Veteran 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). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans Appeals Department of Veterans Affairs