Citation Nr: 1338820 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 10-28 114 ) 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 a low back disorder. 3. Entitlement to service connection for peripheral neuropathy of the lower extremities, to include as due to herbicide exposure and as secondary to a low back disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The appellant and J.S. ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran had active service from October 1967 to October 1969. This matter comes to the Board of Veterans Appeals (Board) on appeal from June 2009 and February 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In December 2012, the Veteran testified before an Acting Veterans Law Judge via videoconference. In February 2013, the Veteran was informed that a transcript could not be created. He responded to the correspondence that month and indicated that he wished to have another hearing before the Board. Subsequently, in July 2013, the Veteran testified before the undersigned at the RO. A transcript of the hearing is associated with the Veteran's Virtual VA claims file. The Virtual VA claims file also contains some relevant evidence not associated with the paper claims file. However, this evidence was reviewed by the RO prior to issuing the March 2012 supplemental statement of the case and by the Board prior to this determination. The issues of entitlement to service connection for a low back disorder and peripheral neuropathy of the lower extremities 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 has been shown to have bilateral hearing loss that is related to his military service. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, bilateral hearing loss was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). However, in the decision below, the Board has granted the benefits sought on appeal in full. Thus, further notice and development could not result in a more favorable result for the Veteran or be of assistance to this inquiry. Hence, no further notice or assistance is required, as there is no harm or prejudice to the Veteran. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd sub nom. Smith v. Principi, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Law and Analysis The Veteran seeks service connection for bilateral hearing loss. Having carefully considered the claims in light of the record and the applicable law, the Board finds that the evidence is at an approximate balance, and the claim will be granted. Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. That an injury was incurred in service alone is not enough. Instead, there must be chronic disability resulting from that injury. 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. 38 C.F.R. § 3.303(b). Generally, to prove service connection, the record must contain evidence concerning: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Several alternative paths to service connection exist for certain chronic diseases identified in 38 C.F.R. §3.309(a), such as organic diseases of the nervous system, including sensorineural hearing loss. For these conditions, service connection may be granted if the chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the Veteran presently has the same condition, unless the condition is clearly attributable to intercurrent causes. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309; see Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013) (finding that "§3.303(b) is constrained by §3.309(a), regardless of the point in time when a Veteran's chronic disease is either shown or noted, in that the regulation is only available to establish service connection for the specific chronic diseases listed n §3.309(a)."). If, however, a chronic disease is noted during service, but is either not chronic or the diagnosis could be questioned, then a showing of continuity of related symptomatology after discharge is required in order to grant service connection. 38 C.F.R. §§ 3.303(b); Walker, 708 F.3d at 1336. 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, 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. 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). 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 (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In this case, the January 2010 VA audiological examination report shows that the Veteran's hearing loss met the criteria to be considered a disability for VA purposes. The remaining questions, therefore, are whether there is evidence of an in-service occurrence of an injury or disease and whether there is evidence of a nexus or relationship between the current disability and the in-service disease or injury. The Veteran's service treatment records do not reflect any complaints, treatment, or diagnoses related to hearing loss and contain results of audiological evaluations done at entry and separation that do not reveal disabling hearing. However, during his examinations, in written statements, and through testimony before the undersigned, the Veteran has described in-service noise exposure as a member of an artillery unit, which is confirmed by his service personnel records. He has indicated that he experienced noise exposure from weapons fire and was not provided with ear plugs. He reported no significant noise exposure in his post-service civilian life. The Veteran is competent to describe the symptoms he has experienced and the noises exposure he had during service. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Furthermore, the Board finds the Veteran's testimony to be credible, as his reports of symptoms and noise exposure have been consistent throughout the record, and his Form DD 214 corroborates his service with an artillery unit. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). Thus, the final element is competent evidence of a nexus between the Veteran's current hearing loss and his noise exposure during service. On the Veteran's behalf, VA obtained two VA medical opinions regarding his hearing loss. These records are dated in May 2009 and January 2010. The opinion provided in May 2009 supports the Veteran's claim, and the opinion obtained in January 2010 weighs against his claim. After reviewing the opinions, the Board finds that they are at least equally probative. Both VA examiners provided rationales for their conclusions. The May 2009 VA examiner based his opinion that hearing loss was at least as likely as not due to in-service noise exposure on the Veteran's report of such noise and common knowledge that hearing loss can be caused by loud noise exposure. The Board points out that tinnitus was granted entitlement to service connection in the June 2009 rating decision on the basis of this same opinion. The January 2010 VA examiner based his negative opinion on the fact that the Veteran had normal hearing upon separation and that his hearing acuity had not undergone a significant shift during service. Both rationales are based upon an accurate account of the evidence contained in the claims file and consideration of the Veteran's credible report of in-service noise exposure. Both appear to also have been provided by audiologists. The Board acknowledges that the audiological examination conducted in May 2009 did not yield reliable results. However, because subsequent records showed that the Veteran met the criteria for a bilateral hearing loss disability for VA purposes, this audiological testing result on this particular examination does not affect the probative weight of the positive opinion. As such, the Board cannot find a reason to favor one of these opinions over the other. Accordingly, as there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Board finds that this is a situation where the benefit of the doubt rule applies. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Therefore, giving the Veteran the benefit of the doubt, the Board finds that service connection for hearing loss is granted. ORDER Service connection for bilateral hearing loss is granted. REMAND The Board finds that additional development is necessary prior to final adjudication of the remaining claims. With regard to the claim of entitlement to service connection for a low back disorder, the Board finds that the opinion obtained by the RO in January 2010 is inadequate. In that report, the examiner opined that the possible spur shown on the Veteran's lumbar spine in November 1968 preexisted service. However, the rationale provided was inadequate, and the examiner made no subsequent finding as to whether this disorder was aggravated by service. The Board finds that a remand is necessary to obtain an adequate opinion. Regarding peripheral neuropathy of the lower extremities, the Board notes that a review of the record reveals that the Veteran is claiming this disability based on three theories of entitlement. He contends that it is secondary to his low back disorder, that it is due to exposure to herbicides during service in Korea, and that it is due to exposure to cold weather while he was stationed in Korea. To the extent that he contends it is secondary to his low back disorder, this matter must be remanded as inextricably intertwined with that issue. Regarding exposure to herbicides, the Board notes that the Veteran's unit is not one of the groups identified by the Department of Defense as operating in or near the Korean Demilitarized Zone (DMZ) during the qualifying time period. However, the Veteran alleges service near the DMZ during his service in Korea. The Veteran's personnel records show that he was in Korea from February 1968 to February 1969 within the qualifying time period of April 1968 to August 1971 for consideration of presumption of exposure to herbicides. In such cases, a request must be sent to the U.S. Army and Joint Services Records Research Center (JSRRC) for verification of exposure to herbicides. This was not done and must be accomplished on remand. Finally, the Veteran contends that he was exposed to cold weather while serving in Korea, which he asserts is the cause of his peripheral neuropathy of the lower extremities. His service personnel records show that he served in Korea for one year from February 1968 to February 1969, which would have included significant time during cold weather. Therefore, the Board finds that an opinion should be obtained as to the etiology of the Veteran's peripheral neuropathy. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should send a request to the JSRRC in an attempt to verify the Veteran's allegations that he was exposed to herbicides while serving in Korea from February 1968 to February 1969. The Veteran's unit information as well as his statement that he served approximately 20 miles from the DMZ should be included in the request. 2. The RO/AMC should return the claims file to the examiner that evaluated the Veteran regarding his low back in January 2010, if available. If not available, submit the claims file to a similarly qualified examiner. The examiner is asked to review the claims file, including the service records, post-service treatment records, and lay statements and provide responses to the following: (a) What are the Veteran's current low back diagnoses, to include any diagnosis since he filed his claim in March 2009? (b) For each current low back diagnosis since March 2009, did it clearly and unmistakably exist prior to service? If so, was there an increase in the disability during service, and was the increase due to the natural progression of the disorder or did it represent a chronic worsening of the underlying pathology? (c) For any current low back diagnosis that did not preexist service, is it at least as likely as not that it manifested in service or is otherwise related to his military service, to include his symptomatology therein? In answering this question, please address whether any currently diagnosed low back diagnosis is related to findings shown and treatment provided in November and December 1968. (The term "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 conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. The RO/AMC should provide the Veteran's claims file to a VA examiner to obtain an opinion with regard to his claim of entitlement to service connection for peripheral neuropathy, to include as secondary to a low back disorder. The examiner is asked to review the record and provide an opinion as to whether the Veteran's peripheral neuropathy of the lower extremities is at least as likely as not related to his military service, to include exposure to cold weather. He or she should also state whether it is at least as likely as not that the Veteran's low back disorder caused or aggravated his peripheral neuropathy. The Board notes that the Veteran has reported exposure to cold weather when he served in Korea from February 1968 to February 1969, and the Board finds that his reports as to this experience are credible. (The term "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.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. The RO/AMC should review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action should be implemented. If any report does not include adequate responses to the specific opinions requested, it should be returned to the examiner for corrective action. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. Thereafter, the RO/AMC should consider all of the evidence of record and readjudicate the issues remaining on appeal. If the benefits sought are not granted, the RO/AMC should issue a Supplemental Statement of the Case, and allow the Veteran and his representative an opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The appellant 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). 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. W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs