Citation Nr: 1337780	
Decision Date: 11/19/13    Archive Date: 12/06/13

DOCKET NO.  11-25 416	)	DATE
	)
	)


On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for chloracne, including as due to herbicide exposure.


REPRESENTATION

Veteran represented by:	New York State Division of Veterans' Affairs


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

Michael Wilson, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1968 to August 1970, including service in the Republic of Vietnam.  His military occupational specialty (MOS) was a combat engineer.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which, in relevant part, denied entitlement to service connection for bilateral hearing loss and for chloracne.  

The Veteran testified at a hearing before the undersigned Veterans Law Judge in May 2012.  A transcript of that hearing is of record.

The issue of entitlement to service connection for depression, including as secondary to hearing loss and tinnitus, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  


FINDINGS OF FACT

1.  On the record at a Board hearing, prior to the promulgation of a decision in this appeal, the Veteran withdrew his appeal as to the issue of entitlement to service connection for chloracne.

2.  The Veteran has current bilateral hearing loss that was incurred as a result of hazardous noise exposure in service.  


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of the Veteran's claim of entitlement to service connection for chloracne have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013).

2.  The criteria for entitlement to service connection for bilateral hearing loss have been met.  38 U.S.C.A. §§ 1101, 1110, 1112(a), 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Withdrawal of Claim

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105 (West 2002).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2013).  Withdrawal may be made by a claimant or by an authorized representative.  38 C.F.R. § 20.204 (2013).  

At the Board hearing held on May 8, 2012, prior to the promulgation of a decision in his appeal, the Veteran stated on the record that he was withdrawing his appeal as to the issue of entitlement to service connection for chloracne.  As such, the Veteran has withdrawn this claim and, hence, there remain no allegations of errors of fact or law for appellate consideration with regard to this issue.  Accordingly, the Board does not have jurisdiction to review this issue and it is dismissed.

II.  Service Connection

In this decision, the Board grants entitlement to service connection for bilateral hearing loss.  As this represents a complete grant of the benefits sought on appeal with respect to this claim, no further notice or assistance is required under the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  

	A.  Governing Law and Regulations

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013).  

Service connection requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  

Service connection may also be granted for certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss, when such disability is manifested to a degree of 10 percent or more within one year of discharge from service.  See 38 U.S.C.A. §§ 1101, 1112(a) (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013).

When service connection for chronic diseases is at issue, the second and third elements for service connection may be established by showing continuity of symptomatology.  See Walker, 701 F.3d 1331.  

In making all determinations, the Board must fully consider the lay assertions of record.  Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009).  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  See 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

	B.  Analysis

The record clearly establishes that the Veteran suffers from current bilateral hearing loss.  Audiological testing results from a March 2010 VA examination are as follows, with puretone thresholds recorded in decibels: 




HERTZ



500
1000
2000
3000
4000
RIGHT
30
10
45
45
55
LEFT
25
20
45
50
50

Speech audiometry testing revealed a speech recognition ability of 92 percent for the right ear and 88 percent for the left ear.  The VA examiner diagnosed a mild to moderate bilateral sensorineural hearing loss.  Thus, the Veteran has current bilateral hearing loss for VA purposes.  See 38 C.F.R. § 3.385 (2013).

With regard to an in-service disease, event, or injury, a complete copy of the Veteran's service treatment records (STRs) has not been obtained.  When a claimant's records have been lost or are otherwise unavailable, the Board has a heightened duty to explain its findings and conclusions and to carefully consider the benefit-of-the-doubt rule.  See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).

Nonetheless, the Veteran has provided competent and credible reports of in-service noise exposure.  He testified during his May 2012 hearing that he was frequently exposed to hazardous noise, including noise from explosives during demolition exercises, with an MOS as a combat engineer.  He further noted that he was exposed to noise from frequent gunfire, including enemy fire, during his service in Vietnam.  His DD Form 214 confirms his MOS and his completion of Combat Engineer School.  His Vietnam service is documented.  Thus, the Board finds that the second required element for service connection is satisfied.

The remaining question is whether there is a nexus between the Veteran's bilateral hearing loss and his in-service exposure to hazardous noise.  Here, the March 2010 VA examiner concluded that since the Veteran's hearing loss was not documented at separation (due to absence of STRs), an etiology opinion could not be provided without resort to speculation.  This opinion weighs neither for nor against the claim.  Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009).

During his May 2012 hearing, the Veteran credibly testified that he sought treatment for hearing loss within one year after separation from service at a Berkshire Hearing Aid Center.  He noted that he had been having trouble with his hearing and that he felt embarrassed due to having to ask people to repeat themselves during conversation.  He reported that he was provided hearing aids at that time.  He maintained that evidence regarding this treatment was not available due to the passage of a long period of time and many practitioners no longer being in practice.  He further noted that others, including his wife, noted his hearing loss soon after service.  He noted that he did not received VA treatment for hearing loss until many years later.  

VA treatment records note that the Veteran was issued hearing aids through VA in October 2007.  

Although the level of the Veteran's hearing impairment within the one-year period after his separation from service cannot be clearly established, the Board finds that the Veteran has provided credible evidence of a continuity of symptoms since service.  38 C.F.R. §§ 3.307, 3.309 (2013).  His credible testimony regarding his noted hearing deficiency and issuance of hearing aids soon after service constitutes competent evidence that his hearing loss was incurred as a result of his significant hazardous military noise exposure.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007).  Thus, a nexus is established between the Veteran's current hearing loss and his active service.

Based on the foregoing, the Board finds that service connection is warranted for bilateral hearing loss.  The evidence of record shows that the Veteran has current bilateral hearing loss, and he was clearly exposed to hazardous military noise during service.  Finally, his credible and competent lay testimony shows that he suffered from hearing loss, and was consequently provided hearing aids, soon after his separation from service.  See Walker, supra

Accordingly, all doubt with respect to this claim is resolved in favor of the Veteran, and his claim for service connection for bilateral hearing loss is granted.  38 U.S.C.A. § 5107(b) (West 2002).


ORDER

The claim of entitlement to service connection for chloracne dismissed.

Entitlement to service connection for bilateral hearing loss is granted.



____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs