Citation Nr: 1334772 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 09-18 199 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is also the appellant, had active service from November 1970 to November 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Houston, Texas. The Veteran was scheduled for a Travel Board hearing at the RO before a Veterans Law Judge in September 2013. The Veteran failed to appear for the requested hearing and has not provided good cause for his failure to appear. The issue of entitlement to service connection for hepatitis C is remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The Veteran experienced loud noise exposure (acoustic trauma) in service. 2. The Veteran has current bilateral hearing loss disability for VA disability compensation purposes. 3. The current bilateral hearing loss disability is related to the in-service loud noise exposure. 4. Tinnitus is etiologically related to the service-connected bilateral hearing loss. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, bilateral hearing loss was incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2013). 2. Resolving reasonable doubt in favor of the Veteran, tinnitus was caused by the Veteran's service-connected hearing loss. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). As the Board is granting the full benefit sought on appeal as it relates to the claims of service connection for bilateral hearing loss and tinnitus, the claims are substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (VA Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Service Connection-General Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service Connection for Bilateral Hearing Loss 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 threshold for normal hearing is between 0 and 20 decibels, and higher threshold shows some degree of hearing loss. The provisions of 38 C.F.R. § 3.385 do not require that hearing loss be shown as defined in that regulation at the time of separation from service, if there is sufficient evidence to demonstrate a relationship between the veteran's service and his current disability. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The disability at issue, namely hearing loss, sensorineural in nature, has been determined a policy matter by VA to be a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as sensorineural hearing loss (an organic disease of the nervous system), become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. The Veteran is competent to report in-service noise exposure as well as hearing problems both during and after service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). However, actual hearing loss (especially that established to a severity recognized as disabling by 38 C.F.R. § 3.385 ) is not a condition capable of lay diagnosis, much less the type of condition that can be causally related to military service by lay testimony. Davidson, 581 F.3d 1313. The Veteran maintains that his current bilateral hearing loss arises out his duties performed as an armorer during service. He does not claim that his hearing loss is a result of combat situations. At the time of the July 1970 enlistment examination, the Veteran had decibel level readings of 5, 5, 5, -, and 5 for the right ear, and 15, 5, 5, -, and 5 for the left ear at the test frequencies of 500, 1000, 2000, and 4000 Hertz. As noted above, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 20 decibels or greater. Thus, the Veteran was shown to have normal hearing in both ears at the time of his entrance into service. The Veteran had loud noise exposure during service. The service treatment records reveal that the military occupational specialty at one point was classified as 76y30 in the armor division. In a November 2010 Training Letter 10-35, the Director of the VA Compensation and Pension Service provided a Duty MOS Noise Exposure Listing. The Veteran's MOS number is not listed. Nevertheless, the Veteran has stated that he was an armorer (weapons repairman) while on active duty. He indicated that this included test firing weapons on a regular basis causing noise exposure and affecting his ears. At the time of the September 1973 service separation examination, he was noted to have decibel level readings of 5, 5, 5, -, and 5 for the right ear and 15, 5, 5, -, and 5 for the left ear at 500, 1000, 2000, 3000, and 4000 Hertz. In conjunction with his claim, the Veteran was afforded a VA examination in September 2012. The examiner indicated that the claims folder was available and had been reviewed. Audiological testing performed at that time revealed decibel level readings of 60, 65, 70, 75, and 75 in the right ear and 65, 70, 65, 80, and 80 in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz. Speech discrimination was found to not be appropriate for the Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that made combined use of puretone average and speech discrimination scores inappropriate. These findings reflect current hearing loss "disability" for VA compensation purposes that meets the criteria at 38 C.F.R. § 3.385. Following VA examination in September 2012, the VA examiner rendered diagnoses of right and left ear sensorineural hearing loss. The VA examiner opined that it was at least as likely as not that the Veteran's hearing loss was caused by or a result of an event in military service. The examiner noted that the Veteran had normal heating at enlistment and separation. In support of the opinion, the examiner observed that the Veteran served a total of three years in the service, and noted that the Veteran was not exposed to combat, but his duties during service consisted of armor supply, and the Veteran fired weapons with his right hand while using ear protection. In this case, the Board finds that the evidence is in equipoise on the question of whether the Veteran's bilateral hearing loss is related to the loud noise exposure during active service. The Veteran experienced acoustic trauma in service in the form of firing weapons. Moreover, the VA examiner indicated that the Veteran's hearing loss was at least as likely as not caused by the noise exposure in service, citing to the duties performed by the Veteran in service as the basis for the rationale. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Because the evidence supports a finding of direct incurrence in service, resulting in a full grant of service connection for bilateral hearing loss disability, the Board need not reach the question of whether the criteria for presumptive service connection for bilateral hearing loss, under the chronic disease presumptions at 38 C.F.R. § 3.309(a) and 38 C.F.R. § 3.303(b) also would be met, because there remains no question of law or fact to decide on this fully granted issue. See 38 U.S.C.A. § 7104 (West 2002) (Board decides "questions" of law and fact). Service Connection for Tinnitus The Veteran maintains that hearing loss and tinnitus are related. The Veteran contends, and the evidence shows, that he had loud noise exposure in service. In his April 2008 notice of disagreement, the Veteran indicated that he was a weapons repairman test firing weapons on a regular basis while in service. He contends that tinnitus either had its onset in service or that the hearing loss causes (is secondary to) his tinnitus. In addition to the law and regulations governing direct service connection cited above, service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, at 448 (1995) (holding that service connection on a secondary basis requires evidence sufficient to show that the current disability was caused or aggravated by a service-connected disability). To establish secondary service connection, the law states that there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between a service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). After a review of all the evidence, the Board finds the evidence does not demonstrate the onset of tinnitus in service or a basis for a grant of direct service connection, as the evidence does not support a finding that tinnitus either began in service or competent evidence that the tinnitus is directly related to the in-service noise exposure. The service treatment records reveal no complaints or findings of tinnitus. Tinnitus was not demonstrated or reported at the time of the September 1973 service separation examination. In conjunction with his claim, the Veteran was afforded a VA examination in September 2012. The examiner indicated that the claims folder was available and had been reviewed. The examiner observed that the Veteran's service treatment records made no mention of tinnitus. The examiner noted that when asked about the onset of tinnitus, the Veteran stated that he could not remember and that he had had the problem for a long time, and that, at first, he just took the presence of tinnitus to be the norm. Regarding secondary service connection theory, however, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran's current tinnitus is related to the service-connected bilateral hearing loss, which, as found above, is causally related to the in-service loud noise exposure. Following VA examination in September 2012, the VA examiner rendered a diagnosis of tinnitus, and offered an opinion that the tinnitus was at least as likely as not a symptom associated with hearing loss, as tinnitus is noted to be associated with hearing loss. While the evidence has not necessarily met the criteria necessary for a the grant of service connection for tinnitus on a direct basis, the evidence is at least in equipoise on the question of whether the currently diagnosed tinnitus is related to the service-connected hearing loss disability. Resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for secondary service connection for tinnitus are met. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss disability is granted. Service connection for tinnitus, as secondary to bilateral hearing loss, is granted. REMAND Service Connection for hepatitis C The Veteran maintains that he developed hepatitis C as a result of pressure injections received during service. A review of the service treatment records reveals that the Veteran received immunizations in November 1970, December 1970, January 1971, April 1971, August 1973, and October 1973. The service treatment records reveal no other risk factors of hepatitis C in service, and the Veteran has not identified any other risk factors in service. In an October 2007 notice of disagreement, the Veteran asserted that his hepatitis C was directly related to the shots given with the pressure gun, stating that there was no sterile action taken between shots given other troops and given to him. He separated from service in November 1973. A June 2003 VA treatment record reflects that the Veteran had a positive HCV AB. After service in December 2003, the Veteran was diagnosed as having hepatitis C. He was noted to be using alcohol and crack cocaine at that time. At the time of a November 2006 substance abuse evaluation interview, the Veteran reported that he started drinking at age 14 and that he had imbibed on a daily basis for 10 plus years. He also reported smoking marijuana since age 16, using it daily for 10 years, and occasionally after that. He reported a 20 plus year history of marijuana use. The Veteran also noted using powdered cocaine beginning at age 23. He reported using cocaine on weekends for about six to seven years and then he began using crack at age 30. He reported using crack on a daily basis at the time of the interview (November 2006). The Veteran also reported a history of using IV heroin, beginning at the age of 27. He stated that he used it mostly on weekends for five or six years and last used it over 20 years ago. To date, an opinion has not be obtained as to the likely etiology of the Veteran's current hepatitis C and its relationship, if any, to his period of service, specifically to the one in-service risk factor of immunizations in November 1970, December 1970, January 1971, April 1971, August 1973, and October 1973, at least some of which he contends were administered with pressure gun. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Forward the claims folder and all other pertinent records, to include those in Virtual VA, to a VA examiner for review and opinion to assist in determining the etiology of the Veteran's hepatitis C. The examiner should offer the following opinion: Is it as likely as not (50 percent or greater probability) that the Veteran's hepatitis C is related to his military service, to include any in-service injections? In offering the opinion, the examiner should specifically note and consider the possible risk factors of in-service immunizations, as well as the post-service risk factors that include drug use, including intravenous drug use. 2. When the above development has been completed, readjudicate the issue of service connection for hepatitis C. If the benefit sought on appeal remains denied, issue an additional Supplemental Statement of the Case. After the Veteran and his representative have had an adequate opportunity to respond, return the appeal to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs