Citation Nr: 1340995	
Decision Date: 12/12/13    Archive Date: 12/20/13

DOCKET NO.  10-45 050	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for left eye disability.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

David S. Nelson, Counsel


INTRODUCTION

The Veteran had active service from January 1964 to January 1968.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky.

The Veteran appeared before the undersigned Veterans Law Judge in September 2011 and delivered sworn testimony via video conference hearing in Louisville, Kentucky.  Evidence pertinent to the issue of service connection for left eye disability was received subsequent to the September 2011 Board hearing.  The Veteran has waived initial RO consideration of that evidence.

The issue of entitlement to service connection for left eye disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC.  VA will notify the veteran if further action is required on his part.


FINDING OF FACT

There has been no demonstration by competent clinical evidence, or credible lay evidence, that left ear or right ear hearing loss was present in service, that left ear or right ear hearing loss disability was demonstrated to a compensable degree within a year of discharge from service, or that there is a nexus or link between left ear or right ear hearing loss disability and the Veteran's active service.


CONCLUSION OF LAW

Left ear or right ear hearing loss disability was not incurred in, or aggravated by, active service, nor may they be presumed (as an organic disease of the nervous system) to have been so incurred or aggravated.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  The VCAA applies in the instant case.

Duty to Notify

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

By correspondence dated in March 2010 the Veteran was informed of the evidence and information necessary to substantiate the claim, the information required of the Veteran to enable VA to obtain evidence in support of the claim, the assistance that VA would provide to obtain evidence and information in support of the claim, and the evidence that should be submitted if there was no desire for VA to obtain such evidence.  In the March 2010 letter the Veteran received notice regarding the assignment of a disability rating and effective date in the event of an award of VA benefits.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  VCAA notice was completed prior to the initial AOJ adjudication of the claim.

Duty to Assist

The Veteran's service treatment records are associated with the claims file, as are VA and private medical records.  There are no outstanding records that have not otherwise been obtained.

In April 2010 the Veteran underwent a VA audiological examination that addresses the medical matters presented by this appeal.  38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the VA opinion obtained in this case is more than adequate.  The April 2010 VA examiner elicited information concerning the Veteran's military service, and the noise exposure received therein.  The opinion considered the pertinent evidence of record, the Veteran's lay history, included specific reference to the Veteran's service treatment records, and provided a rationale for its conclusions.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met.  38 C.F.R. § 3.159(c)(4).

During the September 2011 Board hearing, to assist the Veteran, the undersigned asked questions of the Veteran in an effort to learn more about the onset of the Veteran's hearing loss, and asked if any health care professional had linked his hearing loss to service or if any employment-related hearing testing was available.  The undersigned also informed the Veteran that the record would be held open for 60 days in an effort to give the Veteran additional time to submit evidence in support of his appeal.  These actions fulfilled the duties in Bryant v. Shinseki, 23 Vet. App. 488 (2010), and the Veteran has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the hearing.  As such, the Board finds that, consistent with Bryant, the Board complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claim based on the current record.

The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding.  VA's duties to notify and assist are met, and the Board will address the merits of the claim.

Laws and regulations

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  This rule does not mean that any manifestations in service will permit service connection.  To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word "chronic."  When the disease entity is established, there is no requirement of evidentiary showing of continuity.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b).  However, the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

In regard to claims specific to service connection for hearing loss, the Veterans Benefits Administration Adjudication Manual states that "Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 CFR 3.309(a)."  M21-1MR III.iv.4.B.12.a.  As such, service connection for sensorineural hearing loss (as an organic diseases of the nervous system) may be presumed, subject to rebuttal, if manifest to a compensable degree within the year after active service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. § 3.307, 3.309.  Moreover, the concept of continuity of symptomatology as clarified by Walker, supra., is applicable in this case.  As noted by the April 2010 VA examiner, the Veteran's hearing loss is sensorineural in nature.

The Board observes that a Veteran's "PULHES" profile reflects the overall physical and psychiatric condition of an individual on a scale of 1 (high level of fitness) to a 4 (medical condition or physical defect that is below the level of medical fitness required for retention in the military service).  The "P" stands for "physical capacity or stamina," the "U" indicates "upper extremities," the "L" is indicative of "lower extremities," the "H" reflects the condition of the "hearing and ears," the "E" is indicative of the "eyes," and the "S" stands for "psychiatric condition."  Odiorne v. Principi, 3 Vet. App. 456 (1992).  

VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a) (West 2002).

The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  The determination of whether a veteran has a service-connectable hearing loss is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a "disability" when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent.  38 C.F.R. § 3.385.

Analysis

The Veteran's January 1964 enlistment examination noted that the Veteran's ears were normal.  Audiometric findings (American Standards Associates (ASA) units as converted to International Standards Organization (ISO) units) were, in pertinent part, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
15
15
10
LEFT
15
15
20
20
10

An August 1967 service treatment record noted that the Veteran made complaints related to otitis externa.  The remaining service treatment records noted no complaints or diagnoses relating to hearing loss or any ear problems.

The Veteran's January 1968 service separation examination noted that the Veteran's ears were normal.  The Veteran's PULHES profile "H" reflected a 1.  Audiometric findings were, in pertinent part, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
-5
-5
-5
15
15
LEFT
0
5
0
10
15

A January 2002 VA record reveals that the Veteran complained of his ears being "stopped up."  He denied any ear pain or hearing loss.

At an April 2010 VA audiological examination, the Veteran reported that his hearing loss began about 30 years prior, "placing its onset in 1980."  The Veteran reported military noise exposure from weapons, artillery, and grenades without use of hearing protection.  He also reported occupational and recreational noise exposure.  The reported audiometric findings demonstrated right ear and left ear hearing loss disability for VA purposes.  38 C.F.R. § 3.385.  The examiner opined that it was less likely than not that current hearing loss was related to service.  It was noted that the Veteran's service separation examination was normal and that the Veteran himself had indicated that his hearing loss onset was sometime around 1980.

At his September 2011 Board hearing, the Veteran indicated that he served as a machine gunner during service and was exposed to M-60 machine gun rounds and artillery blasts, including during combat situations.  The Veteran did not recall undergoing a physical examination or hearing test upon discharge.  The Veteran indicated that he first noticed problems with his hearing "6 years ago."

Neither left ear or right ear hearing loss, nor a medical finding of a chronic clinically significant change in hearing ability in the left ear or right ear was demonstrated during the Veteran's active service.  Moreover, left ear and right ear hearing loss "disability" for VA purposes was not demonstrated to a compensable degree within the first year of discharge from such service, and was not shown until, at the earliest, around 1980.  Significantly, there is no competent medical opinion linking left ear or right ear hearing loss disability to service, and the April 2010 VA examiner essentially indicated that the Veteran's left ear and right ear hearing loss was not related to his military service.

As for the probative value of the April 2010 VA opinion, the Board observes that the examiner reviewed the Veteran's claims file and noted the Veteran's assertions concerning his hearing loss.  The examiner detailed the history of the Veteran's noise exposure (during and after service) and specifically referenced the Veteran's service separation examination.  The Board notes that even if the separation audiometric results were reported in ASA unit, which they should not have been by virtue of the date of the examination, converting the results to ISO units would not change the result.  The separation examination results would still have been well within the range of normal and would not have constituted a disability for VA purposes.  The Board finds that the April 2010 VA examiner's opinion is probative and persuasive because it took into consideration the Veteran's medical records and history, his complaints, and provided a comprehensive and detailed supporting rationale.

The Veteran is competent to report having sustained acoustic trauma during his periods of service, and as such is consistent with the circumstances of his service, such assertions are deemed to be credible.  The Board notes that the Veteran is competent to provide statements concerning factual matters of which he has first hand knowledge (i.e., experiencing or observing noise exposure and hearing loss problems during or after service).  Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005).  Under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  However, the Veteran lacks the medical training and expertise to opine that any current left ear or right ear hearing loss is etiologically related to acoustic trauma in service.  Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value.

While the Veteran is competent to report that he has had left ear and right ear hearing loss since service, the Board notes that the Veteran has indicated that his hearing loss did not begin until around 1980, years following service.  Further, the Veteran also denied that he had any hearing loss on a January 2002 VA record.  In view of the medical evidence and the Veteran's own statements, the Board does not find that the Veteran's lay statements are sufficient to establish continuity of symptomatology since service of left ear or right ear hearing loss.

In sum, service connection for left ear and right ear hearing loss is not warranted.

The RO has acknowledged that the Veteran participated in combat during service.  To the extent that the Veteran may be claiming hearing loss as a result of combat, the Board notes that the provisions of 38 U.S.C.A. § 1154 do not obviate the requirement that the Veteran must submit medical evidence of a causal relationship between his current condition and service.  Libertine v. Brown, 9 Vet. App. 521, 524 (1996).  That is, even assuming combat status, the Veteran must provide satisfactory evidence of a relationship between his service and his hearing loss.  38 U.S.C.A. § 1154(b).  He has not done so in this case.


ORDER

Service connection for bilateral hearing loss is denied.


REMAND

The Veteran asserts that he has left eye disability (primarily left eye sensitivity to light, according to the Veteran) as a result of a training accident in Okinawa during service.  While service treatment records do not reveal treatment for a left eye injury, the Veteran has made consistent assertions in this regard, and his assertions tend to be supported by statements from service comrades.  In addition, records such as an April 2002 VA medical record have noted that the Veteran's "OS PUPIL IS FIXED."  The Board notes, however, that the full extent and type of the Veteran's asserted left eye disability, as well as its etiology, is not clear from the record.

The Board finds that the medical evidence of record does not contain sufficient competent medical evidence to decide the claim.  Based on the foregoing, the Board finds that the Veteran should be afforded a VA examination that addresses the medical matters raised by the issue of service connection for left eye disability.

Accordingly, the case is REMANDED for the following action:

1.  The RO/AMC should obtain and associate the Veteran's complete VA treatment records since May 12, 2010.

2.  Following completion of the above, the Veteran should be scheduled for a VA examination regarding the claimed left eye disability.  The examiner must be provided the Veteran's claims file for review, and any indicated studies must be completed.  Following examination of the Veteran and review of the claims file, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a left eye disability that had its onset in service or within one year of service discharge or is otherwise related to his active service.

Rationale for the requested opinion shall be provided.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so.

3.  The AOJ should then, based on all the evidence of record, readjudicate the issue on appeal.  If the benefit sought is not granted, a supplemental statement of the case should be issued, and the Veteran and his representative should be afforded the appropriate period to respond.  Thereafter, the case should be returned to the Board, as appropriate.

The Veteran has the right to submit additional evidence and argument on the matter 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 for additional development or 

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other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs