Citation Nr: 1338244	
Decision Date: 11/21/13    Archive Date: 12/06/13

DOCKET NO.  10-42 442	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service connection for peripheral neuropathy of the upper extremities, claimed as secondary to service-connected diabetes mellitus, type II.

4.  Entitlement to service connection for hypertension, claimed as secondary to service-connected diabetes mellitus, type II.


REPRESENTATION

Veteran represented by:	Disabled American Veterans




WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

K. K. Buckley, Counsel


INTRODUCTION

The Veteran served on active duty from September 1968 to December 1971.  Service in the Republic of Vietnam is indicated by the record.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied the Veteran's claims.

In June 2012, the Veteran presented sworn testimony during a videoconference hearing, which was chaired by the undersigned.  A transcript of the hearing has been associated with the Veteran's VA claims file.  Relevant to this proceeding, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the individual who chairs a hearing fulfill two duties to comply with the above regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the hearing, the undersigned noted the basis of the prior determination and noted the elements that were lacking to substantiate the claims for benefits.  In addition, the undersigned sought to identify any pertinent evidence not currently associated with the claims file that might have been overlooked or was outstanding that might substantiate the claims.  Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), or otherwise identified any prejudice in the conduct of the hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claims.  As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record.

The issues of entitlement to service connection for peripheral neuropathy of the upper extremities and hypertension 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.  The Veteran will be notified if further action on his part is required.


FINDINGS OF FACT

1.  Resolving all doubt in the Veteran's favor, the currently diagnosed bilateral hearing loss is as likely as not related to his active duty service.

2.  Resolving all doubt in the Veteran's favor, the currently diagnosed tinnitus is as likely as not related to his active duty service.


CONCLUSIONS OF LAW

1.  Bilateral hearing loss was incurred in the Veteran's active military service.  38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013).

2.  Tinnitus was incurred in the Veteran's active military service.  38 U.S.C.A. §§ 1110, 5103A (West 2002); 38 C.F.R. § 3.303 (2013).







REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, & 5126 (West 2002 & Supp. 2010)), which imposes obligations on VA in terms of its duty to notify and to assist claimants.  The Board has considered this legislation and finds that, given the favorable action taken herein with regard to the claims for service connection for bilateral hearing loss and tinnitus, no further discussion of these VCAA requirements with regard to these issues is required.  Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49, 747 (1992).

II.  Analysis

Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service.  38 U.S.C.A. § 1110.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  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 for any condition listed in 38 C.F.R. § 3.303(b).  Any condition not encompassed by Section 3.303 (b) requires a medical nexus. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).

In order to establish direct service connection for the claimed disorder, generally, there must be competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Lay evidence can be competent and sufficient to establish the elements of service connection when (1) a 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.  See Jandreau, 492 F.3d at 1377.

Service connection may also be granted on a presumptive basis for certain chronic disabilities, including sensorineural hearing loss, when manifested to a compensable degree within the initial post-service year.  See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2013).

As noted above, service connection for impaired hearing shall only be established when hearing status, as determined by audiometric testing, meets specified pure tone and speech recognition criteria.  Audiometric testing measures threshold hearing levels (in decibels), over a range of frequencies (in Hertz).  See Hensley v. Brown, 5 Vet. App. 155, 158 (1993).  For the purposes of applying the law 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 (2013).

Here, the Veteran asserts that he has bilateral hearing loss and tinnitus that are due to in-service noise exposure.  See, e.g., the June 2012 Board hearing transcript, pgs. 3-4.  Specifically, he maintains that he sustained acoustic trauma when he was exposed to loud explosions from rockets and mortars while serving as a mobile paymaster in Vietnam.  Id. at pg. 3.  He also asserts noise exposure due to target practice without hearing protection as well as routine exposure to helicopter noise.  Id. at pg. 4.  The Board has thoroughly reviewed the record and concludes that the evidence supports a finding that the Veteran's currently diagnosed bilateral hearing loss and tinnitus were incurred during his active duty service.

The Veteran's service treatment records, including his December 1971 separation examination, are absent of any documentation of in-service complaints of, or treatment for, bilateral hearing loss or tinnitus.  As indicated above, the record demonstrates that the Veteran served on active duty from September 1968 to December 1971, with service in the Republic of Vietnam from February 1971 to December 1971.  His military occupational specialty (MOS) was bookkeeper, which is consistent with his assertions of acoustic trauma while serving as a mobile paymaster.  The Board has no reason to dispute the Veteran's credible testimony concerning in-service noise exposure while performing his MOS.

VA treatment records dated October 2008 note a diagnosis of bilateral mild to moderate sensorineural hearing loss.

The Veteran was afforded a VA examination in March 2010 at which time the examiner diagnosed him with bilateral hearing loss for VA compensation purposes.  A diagnosis of tinnitus was also confirmed at that time.  See the VA examination report dated March 2010.  With respect to the question of medical nexus, the examiner concluded, "it is less likely than not that the Veteran's hearing loss and tinnitus are related to acoustic trauma in service due to the presence of normal hearing upon separation from active duty per separation exam and no complaint of tinnitus upon separation from active duty."

In contrast, the Veteran submitted a private medical opinion from Dr. G.W. in support of his contentions of medical nexus.  Specifically, in his July 2010 report, Dr. G.W. concluded that "[i]t is at least as likely as not that both the Veteran's hearing loss and intermittent bilateral tinnitus are related to his duties in the military."  Dr. G.W. stated, "[h]is duties which required him to fly in C-130 helicopters to various bases in combat areas exposed him to noise levels that can cause acoustic trauma."  He continued, "[a]coustic trauma is injury to the hearing mechanisms within the inner ear, caused by excessively loud noise."  He explained, "[a]coustic trauma is a common cause of sensory hearing loss.  Damage to the hearing mechanism within the inner ear results from explosions near the ear, gunshots, or long-term exposure to loud noises."  Dr. G.W. further stated, "[h]earing loss and tinnitus are the most common symptoms of acoustic trauma."
Accordingly, there is significant conflicting medical evidence of record concerning the questions of medical nexus.  The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence."  See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).  However, the Court has held that the Board may not reject medical opinions based on its own medical judgment.  See Obert v. Brown, 5 Vet. App. 30 (1993).

Critically, as to the bilateral hearing loss and tinnitus, the Board finds that the March 2010 VA examiner's opinion as well as the July 2010 opinion from Dr. G.W. appear to have been based upon thoughtful analyses of the Veteran's entire history and current medical condition.  See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion").

Accordingly, the Board has weighed the probative evidence of record and finds that the evidence of record is at least in equipoise as to whether the bilateral hearing loss and tinnitus are a result of the Veteran's military service.  The benefit of the doubt rule is therefore for application as to these issues.  See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013).  The Board will resolve this reasonable doubt in the Veteran's favor and finds that the evidence supports the grant of service connection bilateral hearing loss and tinnitus.  See 38 U.S.C.A. § 5107 (West 2002).


ORDER

Entitlement to service connection for bilateral hearing loss is granted.

Entitlement to service connection for tinnitus is granted.





REMAND

For the reasons expressed below, the Board finds that the remaining claims on appeal - entitlement to service connection for peripheral neuropathy of the upper extremities and hypertension - must be remanded for further development.  To this end, service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability.  38 C.F.R. § 3.310(a) (2013); Harder v. Brown, 5 Vet. App. 183, 187 (1993).  Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a).  Allen v. Brown, 7 Vet. App. 439, 448 (1995).  In order to establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability.  See Wallin v. West, 1 Vet. App. 509, 512 (1998).

Here, the Veteran contends that he suffers from peripheral neuropathy of the upper extremities and hypertension, which are proximately caused or aggravated by his service-connected diabetes mellitus, type II.  It is undisputed that he is service-connected for diabetes mellitus, type II.

With respect to the claimed peripheral neuropathy of the upper extremities, a review of the record demonstrates that the Veteran claims to experience numbness and tingling in the upper extremities.  See, e.g., the June 2012 Board hearing transcript, pg. 8.  Notably, although this claimed numbness and tingling was documented in VA treatment records (see the VA treatment records dated February 2003) and at the time of the March 2010 VA examination, the significance (or lack thereof) of these reported symptoms was not adequately addressed by the VA examiner.  In particular, the examiner opined that there is no pathology to render a diagnosis with respect to the claimed peripheral neuropathy of the upper extremities without addressing the Veteran's subjective complaints of numbness and tingling in his upper extremities.

As to the claimed hypertension, the medical evidence of record demonstrates that the Veteran is currently diagnosed with hypertension.  See, e.g., VA treatment records dated August 2008.  The Board notes that VA treatment records dated in September 2002 indicate that the Veteran was prescribed Lipitor.  The Veteran was afforded a VA examination in March 2010 in order to address the question of medical nexus.  The VA examiner noted that the Veteran was diagnosed with diabetes mellitus in 2003.  He then opined, "[t]he way it occurred is unknown.  The date of onset of diagnosis of hypertension is unknown.  There is no evidence that the hypertension is secondary to diabetes; although the conditions frequently co-exist, there is no direct causal relationship demonstrated in this claimant."  Crucially, the VA examiner failed to address the pertinent question of whether the claimed hypertension was aggravated by the service-connected diabetes mellitus, type II.

In sum, there remain questions as to current diagnosis and etiology of these claimed disabilities.  See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2013) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim) and Colvin v. Derwinski, 1 Vet. App. 191, 195 (1999) (the Board is prohibited from exercising its own independent judgment to resolve medical questions).  A remand for a new VA examination should therefore be accomplished in order to address these outstanding questions with respect to the Veteran's claimed peripheral neuropathy of the upper extremities and hypertension.

Additionally, review of the record reflects ongoing VA medical treatment.  Thus, on remand, any previously unobtained ongoing relevant medical records should be procured and associated with the Veteran's claims file.  38 U.S.C.A. § 5103A(c) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent).

Accordingly, the case is REMANDED for the following action:

1. After obtaining the appropriate release of information forms where necessary, procure records of any treatment or evaluation that the Veteran may have received at any VA facility since November 2012.  All such available documents should be associated with the claims file.

2. Thereafter, schedule the Veteran for a VA examination with a medical professional of appropriate expertise to determine the nature and etiology of the claimed peripheral neuropathy of the upper extremities and hypertension.  The claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination.  All pertinent pathology should be annotated in the examination report.  Pertinent testing deemed necessary should be accomplished; the results of any such studies should be included in the examination report.

Following review of the claims file and examination of the Veteran, the examiner should either diagnose or rule out peripheral neuropathy of the upper extremities.  If such a disability is diagnosed, the examiner should indicate whether it is at least as likely as not (50 percent probability or more) that it had its clinical onset in service or is otherwise related to service, or was caused or aggravated by his service-connected disabilities.  If aggravated, specify the baseline of peripheral neuropathy of the upper extremities prior to aggravation, and the permanent, measurable increase in peripheral neuropathy of the upper extremities resulting from the aggravation.

With respect to the currently diagnosed hypertension, the examiner should indicate whether it is at least as likely as not (50 percent probability or more) that it had its clinical onset in service or is otherwise related to service or was caused or aggravated by his service-connected disabilities.  If aggravated, specify the baseline of hypertension prior to aggravation, and the permanent, measurable increase in hypertension resulting from the aggravation.

If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined.  In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010).  (The agency of original jurisdiction (AOJ) should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.)

3. Thereafter, readjudicate the claims on appeal.  If any benefit sought remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board.
The Veteran 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).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the Court 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).



______________________________________________
THOMAS H. O'SHAY
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs