Citation Nr: 1338660 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 10-31 963A ) 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 a left knee disability. 3. Entitlement to service connection for a right knee disability. 4. Entitlement to service connection for a thyroid disability, to include hyperthyroidism. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from August 1968 to August 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, and a November 2009 rating decision issued by the RO in New York, New York. Jurisdiction over the claims file is held by the New York RO. In May 2013, the Veteran testified at a hearing before the undersigned Acting Veterans Law Judge at the RO. A transcript of the hearing is associated with the Veteran's virtual claims file. The Veteran's July 2009 notice of disagreement also initiated an appeal with respect to the denial of a claim for entitlement to service connection for tinnitus in the July 2009 rating decision. In July 2010, service connection for tinnitus was granted with an initial 10 percent evaluation assigned effective February 24, 2009. The award of service connection for tinnitus constitutes a complete grant of the benefit sought on appeal and the claim for entitlement to service connection for tinnitus is not before the Board. The issues of entitlement to service connection for left and right knee and thyroid disabilities 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. FINDING OF FACT The Veteran's bilateral hearing loss had its onset during active duty service due to combat noise exposure. CONCLUSION OF LAW Service connection for bilateral hearing loss is warranted. 38 U.S.C.A. §§ 1110, 1154(b) (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that service connection is warranted for bilateral hearing loss as it was incurred due to combat noise exposure during active duty service in Vietnam. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The record clearly establishes the presence of a current disability. Bilateral sensorineural hearing loss was diagnosed in accordance with 38 C.F.R. § 3.385 by an April 2009 VA examiner. The Veteran also testified during the May 2013 hearing that he has experienced hearing loss throughout the claims period. The first element of service connection is therefore established. Service treatment records also document complaints of hearing loss. In January 1969, the Veteran was treated for a blast injury to the ears that occurred three months earlier. The Veteran complained of decreased hearing and was referred for an audiometry consultation. Two days later, an audiogram and physical examination of the ears were normal. The impression was no hearing loss. The Veteran's hearing was also normal at the July 1970 separation examination and he did not complain of any hearing loss on the accompanying report of medical history. While service records do not document any objective evidence of hearing loss, the Veteran reported a decrease in hearing acuity as a result of the 1968 blast injury. In addition, personnel records show that the Veteran served as a light weapons infantryman and received the Combat Infantryman Badge and Purple Heart medal. He also testified that he was exposed to various loud noises during his combat service in Vietnam, to include guns and artillery. The blast injury and noise exposure described by the Veteran are consistent with the circumstances of his combat service in Vietnam. 38 U.S.C.A. § 1154(b) (West 2002). The Board therefore finds that the evidence establishes the presence of a current disability and an in-service injury, i.e. acoustic trauma. In Reeves v. Shinseki, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) found that the combat presumption contained within 38 U.S.C.A. § 1154(b) not only applied to a combat injury, but also the consequences of that injury, at least in service. Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012) (holding that the Board was required to apply the section 1154(b) presumption to the Veteran's claimed acoustic trauma during service and the separate question of whether he suffered permanent hearing loss while on active duty). Therefore, as the Veteran has reported the onset of hearing loss during active duty, 38 U.S.C.A. § 1154(b) also applies to his contentions regarding the onset of the chronic disability during service. See Id. Section 1154(b) provides that service connection for the in-service injury can only be rebutted by clear and convincing evidence to the contrary. In this case, the Board finds that the record does not contain clear and convincing evidence that the Veteran did not acquire chronic hearing loss during active service, and the combat presumption of 1154(b) with respect to the in-service incurrence of the claimed disability is not rebutted. The Veteran has reported the onset of hearing loss during service. Lay statements, such as those made by the Veteran, are considered competent evidence when describing the features or symptoms of an injury or illness. Falzone v. Brown, Vet. App. 398 (1995). The Board also finds that the Veteran's statements are credible. Service records document the Veteran's complaints of decreased hearing in January 1969 following a blast injury. The April 2009 VA examiner also identified a relationship between the Veteran's hearing loss and service-connected tinnitus: the tinnitus was described as a symptom of hearing loss. VA has previously determined that the Veteran's tinnitus was incurred during active duty service. As noted above, service connection for tinnitus as due to in-service acoustic trauma has been granted. The Board observes that "an associated hearing loss is usually present" with tinnitus. See The MERCK Manual, Sec. 7, Ch. 82, Approach to the Patient with Ear Problems. Concerning this, the Board notes that tinnitus may occur as a symptom of nearly all ear disorders including sensorineural or noise-induced hearing loss. Id. In this regard, the Board notes that "high frequency tinnitus usually accompanies [noise-induced] hearing loss." The MERCK Manual, Section 7, Ch. 85, Inner Ear. Despite noting a relationship between the two disabilities, the VA examiner found that it was not possible to resolve the question of the etiology of the Veteran's hearing loss. Although the Veteran's hearing tested normal during service, the Board finds that this fact alone does not constitute clear and convincing evidence against a finding that the Veteran's hearing loss was incurred during active duty. Thus, the combat presumption of 1154(b) is not rebutted, and service connection is warranted as the claimed bilateral hearing loss had its onset during a period of active duty service. VA has substantially satisfied the duties to notify and assist, as required by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this appeal given the favorable nature of the Board's decision to grant the claim. ORDER Entitlement to service connection for bilateral hearing loss is granted. REMAND The Board finds that additional development is necessary before a decision may be rendered with respect to the other claims on appeal. During the May 2013 hearing before the Board, the Veteran testified that he received treatment at the North Port VA Medical Center (VAMC) seven or eight months after his separation from active duty service in August 1970. While some records from the North Port VAMC are included in the claims file, these records only date from September 1999. The procurement of potentially pertinent VA medical records referenced by the veteran is required. Where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992). In addition, the Veteran appears to have submitted copies of treatment records from the North Port VAMC at the May 2013 hearing. The records were accompanied by a waiver of initial consideration by the agency of original jurisdiction (AOJ) and were described as dating from 1997. However, these records are not associated with the current record before the Board. Upon remand, the Veteran should be contacted and asked to resubmit copies of the records accepted at the May 2013 hearing. The Board also finds that the Veteran should be provided a VA examination to determine the nature and etiology of the claimed knee and thyroid disabilities. The Veteran testified in May 2013 that he incurred multiple knee injuries due to combat service in Vietnam. The types of injuries described by the Veteran are consistent with the circumstances of his combat service. See 38 U.S.C.A. § 1154(b) (West 2002). In addition, he testified that he was exposed to a chemical substance in Vietnam that caused his current thyroid condition. Although there is no documentation of this incident in the service records, the Veteran is competent to describe injuries that occurred during service. Therefore, a VA examination is required by VA's duty to assist. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's complete records of treatment from the North Port VAMC for the period dating from 1970 to 2008. All records received pursuant to this request must be associated with the paper or virtual claims file. 2. Contact the Veteran and request that he resubmit copies of the North Port VAMC treatment records received at the May 2013 hearing. 3. Afford the Veteran a VA examination(s) to determine the nature and etiology of the claimed bilateral knee and thyroid disabilities. The claims file must be provided to the examiner and reviewed in conjunction with the examination. All tests and studies deemed necessary by the examiner should be performed. The examiner should determine whether the Veteran has current chronic disabilities of the knees and thyroid. The examiner should then determine whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that any diagnosed disabilities are etiologically related to any incident of active duty service, to include the Veteran's combat experiences in Vietnam and claimed chemical gas exposure. For the purposes of this opinion, the examiner should assume the Veteran's history regarding his combat experiences is true. The examiner is requested to provide a complete rationale for any opinions expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. Readjudicate the claims on appeal. If the benefits sought on appeal are not fully granted, issue a SSOC before returning the case to the Board, if otherwise in order. The appellant 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. 2013). ______________________________________________ M. C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs