Citation Nr: 1336017 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 10-30 103 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a left foot and toe disability. 2. Entitlement to service connection for a genital rash. 3. Entitlement to service connection for a bilateral hearing loss disability. 4. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from October 1964 to October 1967. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which, in part, denied the Veteran's service connection claims currently on appeal. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The Board has reviewed the documents in both the paper claims file and the electronic claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board finds that additional development is warranted in this case before a decision may be rendered. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion when it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A (d) (West 2002); 38 C.F.R. § 3.159(c) (4) (2013). See also Robinette v. Brown, 8 Vet. App. 69, 76 (1995). With regard to the Veteran's claim for service connection for a left foot and toe disability, he contends that he injured his foot and toe during a mortar attack in February1966. He indicated that his Sargent wrapped his foot and he was treated the next day at the base dispensary, and was subsequently placed on profile. See October 2013 informal hearing presentation. The Veteran's representative noted that service treatment records did not contain any records from February 1966 indicating the service treatment records were lost. On remand, all efforts should be made to ensure that any outstanding service treatment records are obtained. Additionally, the Board notes that the Veteran is competent to report about his left foot and toe injuries during service and as to any current foot and toe disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (holding that lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). Therefore, he should be afforded an examination to determine the nature and etiology of any current left foot and toe disability. Regarding the service connection claim for a genital rash, the Veteran essentially contends that he currently has the same rash that manifested in service. Review of the service treatment records shows that in April 1966, the Veteran was seen for a fine pinpoint rash under the foreskin and on corona of the penis which the clinician noted was probably of a viral etiology. In December 1966, he seen for a rash on his penis. Additionally, a November 1966 record reflects that the Veteran had a headache and rash, but the location of the rash was not identified. A post-service treatment record dated in May 2009 noted pearly penile papules around corona. Therefore on remand, the Veteran must be afforded an examination to determine the nature and etiology of any current genital rash. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (recognizing that 38 C.F.R. § 3.159(c) (4) presents a low threshold for the requirement that evidence indicates that the claimed disability may be associated with in-service injuries for the purposes of a VA examination). As to the claims for service connection for bilateral hearing loss disability and tinnitus, the Veteran essentially contends that he was exposed to loud noise during service from helicopters as an aircraft mechanic and flight operator with inconsistent hearing protection, and also from incoming mortar attacks during service. He asserts that he has had hearing loss and tinnitus ever since service. The Veteran was afforded an audiological examination in May 2008. Upon review of the claims folder and interview and evaluation of the Veteran, the VA examiner opined that it was less likely than not that current hearing loss and tinnitus were related to service. In rendering this opinion, the examiner cited to the lack of documentation of hearing loss or threshold shifts during service. She also observed that the claims folder was negative for complaints of tinnitus and the Veteran also reported about 19 years of occupational noise exposure without hearing protection following service discharge. Based on the current record, the Board finds that there is insufficient evidence to make a determination in this case. In particular, the Board finds that the VA examination report is not adequate as the examiner failed to take into account the Veteran's assertions and placed great weight on the lack of documentation related to the claims during service. In this regard, it is noted that the Veteran is competent and credible as to any assertions with regard to acoustic trauma during service and tinnitus, especially since he was a helicopter repairman during service. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Additionally, as noted by the Veteran's representative in its October 2013 informal hearing presentation, the service treatment records show that in June 1965 the Veteran suffered acute trauma to the right temporal area. In this vein, the Board observes that service treatment records also show that in July 1967, the Veteran was hit on the side of the head with a fist. The Board notes that the absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Service connection may be granted 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 v. Brown, 5 Vet. App. 155, 159 (1993). The Board also observes that Training Letter 10-02 was issued in March 2010 regarding the adjudication of claims for hearing loss. In that letter, the Director of the VA Compensation and Pension Service indicated that the two most common causes of sensorineural hearing loss are presbycusis (age-related hearing loss) and noise-induced hearing loss (caused by chronic exposure to excessive noise). It was also noted that the presence of a notch (of decreased hearing) that may be seen on audiograms generally at frequencies of 3000, 4000, or 6000 Hertz with a return toward normal at 8000 Hertz may be indicative of noise-induced hearing loss. As noted herein, the law does not necessarily require that hearing loss manifest in service. It would have been helpful if the examiner had brought her expertise to bear in this manner regarding medically known or theoretical causes of sensorineural hearing loss or described how hearing loss which results from acoustic trauma generally presents or develops in most cases, as distinguished from how hearing loss develops from other causes, in determining the likelihood that any current hearing loss was caused by noise exposure or acoustic trauma in service as opposed to some other cause. Further, it is noted that the Director of the VA Compensation and Pension Service observed in Training Letter 10-02 that sensorineural hearing loss is the most common cause of tinnitus, but commented that the etiology of tinnitus often cannot be identified. Other known causes were listed, including Meniere's disease, a head injury, hypertension, medications, and dental disorders. Based on the foregoing, the Board finds that this matter should be remanded and the Veteran should be provided another audiological examination to determine whether in-service noise exposure could cause the Veteran to progressively lose his hearing over the years, and the effect, if any, his head injuries during service had on his current disabilities. Hensley v. Brown, 5 Vet. App. 155 (1993). Additionally, the examiner should indicate whether the Veteran's tinnitus was caused by in-service noise exposure, acoustic trauma, head injury, or other possible causes, and/or is related to his hearing loss. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that when VA undertakes to provide a VA examination, it must ensure that the examination is adequate). Accordingly, the case is REMANDED for the following actions: 1. Make all attempts to obtain any outstanding service treatment records. Perform all follow-up indicated, including requesting the assistance of the Service Department, and document negative responses. If VA is unable to secure these records, VA must notify the Veteran and (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts that VA made to obtain those records; (c) describe any further action to be taken by VA with respect to the claims; and (d) notify him that he is ultimately responsible for providing the evidence. 38 U.S.C.A. § 5103A (b) (2) (West 2002); 38 C.F.R. § 3.159(e) (1) (2013). 2. Schedule the Veteran for an examination to ascertain the nature and etiology of any current left foot and toe disability. The claims file and a copy of this Remand must be made available to and be reviewed by the examiner in conjunction with the examination. The examination report must indicate that the claims file was reviewed in conjunction with the examination. The examiner should state whether it is at least as likely as not (50 percent probability or greater) that any current left foot and toe disability is related to service, to include the Veteran's contention of injury during a mortar attack in service. See Dalton v. Nicholson, 21 Vet. App. 23 (noting that an examination was found inadequate where the examiner did not comment on the Veteran's report of in-service injury and relied on the lack of evidence in the service treatment records to provide a negative opinion). The examiner should reconcile any opinion with the evidence of record and cite to the record as appropriate. Any opinion provided must include an explanation of the basis for the opinion. If the examiner is unable to offer the requested opinion, it is essential that the examiner explain why an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. Schedule the Veteran for an examination to ascertain the nature and etiology of any current genital rash. The claims file and a copy of this Remand must be made available to and be reviewed by the examiner in conjunction with the examination. The examination report must indicate that the claims file was reviewed in conjunction with the examination. The examiner should state whether it is at least as likely as not (50 percent probability or greater) that any current genital rash is related to service, to include the in-service notations of a rash on his penis. The examiner should reconcile any opinion with the evidence of record and cite to the record as appropriate. Any opinion provided must include an explanation of the basis for the opinion. If the examiner is unable to offer the requested opinion, it is essential that the examiner explain why an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. Schedule the Veteran for an audiological examination to determine the nature and etiology of any current hearing loss disability and tinnitus. The examiner must review the claims file, to include a copy of this remand, and must indicate that review of the claims folder was completed. The examiner must provide an opinion on the following: (i) Is any current hearing loss disability at least as likely as not (50 percent probability or greater) etiologically related to conceded in-service noise exposure (i.e., did in-service noise exposure cause the Veteran to progressively lose his hearing over the years) and/or noted head trauma during service? (ii) Is any current tinnitus at least as likely as not (50 percent probability or greater) etiologically related to conceded in-service noise exposure (i.e., is the Veteran's complaint of tinnitus consistent with his in-service noise exposure) and/or noted head trauma during service? If the examiner is of the opinion that the tinnitus is a symptom of hearing loss, then the examiner should so expressly state. The examiner should concede that the Veteran does currently suffer from tinnitus and comment on the Veteran's report regarding the onset of his tinnitus during service. The examiner must provide a rationale for the opinions expressed and reconcile any contradictory evidence of record. In rendering the opinion, the examiner should not resort to mere speculation, but rather should consider that the phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. In rendering the above opinions, the examiner is advised that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis 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. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). 5. After undertaking any additional development deemed necessary and ensuring that the VA examination reports obtained as a result of this remand comply with the instructions set forth herein, readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. 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). _________________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).