Citation Nr: 1416208	
Decision Date: 04/11/14    Archive Date: 04/24/14

DOCKET NO.  10-40 316	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.  

2.  Entitlement to service connection for bilateral tinnitus

3.  Entitlement to service connection for a bilateral knee condition.  

4.  Entitlement to service connection for a low back condition.  


REPRESENTATION

Veteran represented by:	Colorado Division of Veterans Affairs


WITNESSES AT HEARING ON APPEAL

The Veteran, Veteran's spouse

ATTORNEY FOR THE BOARD

Avery M. Schonland, Associate Counsel


INTRODUCTION

The Veteran had active service from September 1963 to June 1967.  This included service within the Republic of Vietnam from June 1966 to June 1967.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.  

The Board notes that the Veteran's appeal originally included a claim for service connection peripheral neuropathy of the bilateral lower extremities.  Before the matter was certified to the Board, however, in a July 2012 rating decision, the RO granted service connection with a 10 percent initial evaluation for each lower extremity, effective November 12, 2010.  The Board finds that the grant of service connection constitutes a full award of the benefits sought on appeal with respect to this issue.  See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997).  The record currently available to the Board indicates that the appellant did not initiate an appeal with the RO's initial rating or effective date.  Thus, those matters are not in appellate status.  Grantham, 114 F.3d at 1158.  As the RO's July 2012 decision constitutes a full grant of the benefits sought on appeal, no further consideration is necessary.  

In February 2014, the Veteran presented testimony at a Board Videoconference Hearing before the undersigned Acting Veterans Law Judge (AVLJ).  A transcript of the hearing is of record in Virtual VA.  

At that hearing, subsequent to the RO's September 2013 supplemental statement of the case (SSOC), the Veteran submitted an additional lay statement in support of his claims, two medical statements in support of his hearing loss and tinnitus claims, and research regarding his in-service noise exposure.  He also submitted a waiver of this new evidence, allowing the Board's initial review.  See 38 C.F.R. § 20.1304 (2013).  

In deciding this appeal, the Board has reviewed the Veteran's electronic (Virtual VA) file and the Veterans Benefits Management System (VBMS), in addition to his physical claims file.  In this case, there are no additional documents in VBMS.  A review of the Veteran's Virtual VA claims file contains the hearing transcript as mentioned above.  All other records therein are either duplicative or irrelevant to the issue on appeal.  

The issues of entitlement to service connection for a bilateral knee condition and a low back condition 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.


FINDINGS OF FACT

1.  The preponderance of the evidence demonstrates that bilateral hearing loss is related to service.

2.  The preponderance of the evidence demonstrates that tinnitus is related to service.


CONCLUSIONS OF LAW

1.  Hearing loss was incurred in service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2013).  

2.  Tinnitus was incurred in service.  38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013).  
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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; 38 C.F.R. §§ 3.102, 3.159, 3.326(a).  In the decision below, the Board grants service connection for hearing loss and tinnitus.  In light of the favorable decision, the Board finds that all notification and development action needed to fairly adjudicate this appeal have been accomplished.  

Moreover, as previously noted, the Veteran was afforded an opportunity to present testimony at a hearing before the Board in February 2014.  A Veterans Law Judge who chairs a hearing must fulfill two duties to comply with 38 C.F.R. § 3.103(c)(2).  Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010).  These duties consist of (1) fully explaining the issues pertinent to the claim(s) on appeal; and (2) suggesting the submission of evidence that may have been overlooked.  38 C.F.R. § 3.103(c)(2).  In this case, the undersigned AVLJ set forth the issues to be discussed and sought to identify pertinent evidence not currently associated with the claims folder, to include any relevant post-service treatment.  The hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony and questioning by his representative, demonstrated his actual knowledge of the elements necessary to substantiate his claims.  As such, the Board finds that VA complied 38 C.F.R. 3.103(c)(2) and Bryant v. Shinseki, 23 Vet. App. 488.

The Board concludes that the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim, and did in fact participate.  Washington v. Nicolson, 21 Vet. App. 191 (2007).  For these reasons, the Board concludes that VA has fulfilled the duty to assist the appellant in this case.  Hence, there is no error or issue that precludes the Board from addressing the merits of the appeals.

Law and Analysis

The Veteran seeks service connection for hearing loss and tinnitus based upon his service as a jet engine mechanic in the Air Force.  Specifically, he contends that his work as a jet engine mechanic required him to work on the flight line, exposing him to hazardous noise levels.  He has consistently described the extreme noise levels generated by jet engines running at maximum capacity for testing purposes.  

Generally, to prove service connection, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service.  This may be accomplished by affirmatively showing inception or aggravation during service.  38 C.F.R. § 3.303(a).  For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for sensorineural hearing loss, if the disability is manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309.  

For the showing of 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."  Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service.  38 C.F.R. § 3.303(d).  

Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or where the auditory thresholds for at least three of these frequencies are 26 dB or greater; or when speech recognition scores are less than 94 percent.  38 C.F.R. § 3.385.

The Board finds that the weight of the evidence of record supports a finding of service connection for bilateral hearing loss and tinnitus.  First, there are current diagnoses of tinnitus and bilateral sensorineural hearing loss for VA purposes in an August 2009 VA examination report.  See Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation).  

Second, the Board finds the evidence of record indicates in-service noise exposure.  The Veteran provided competent and credible testimony at his February 2014 hearing regarding exposure to acoustic trauma, reporting that he worked as a jet engine mechanic on the flight line.  He explained that running the jet engines at maximum capacity was used as a diagnostic test by mechanics, and as a mechanic he was exposed to hazardous noise levels on a daily basis.  The Veteran similarly reported running the jet engines at maximum capacity in a July 2012 statement.  His DD-214 shows that his military occupational specialty (MOS) was jet engine mechanic, and this supports his testimony as to hazardous noise exposure on the flight line.  Due consideration shall be given to the places, types, and circumstances of a Veteran's service as shown by his service records and all medical and lay evidence.  See 38 U.S.C.A. § 1154(a) (West 2002).

Finally, the Veteran has submitted competent medical statements attributing his hearing loss and tinnitus to his in-service noise exposure.  He submitted a November 2013 statement by Dr. K.J.T, which offered the opinion that it is at least as likely as not that that noise exposure incurred while in the military contributed to his hearing loss and tinnitus.  Also at the February 2014 hearing, the Veteran submitted a January 2014 statement by Dr. R.G., which offered the opinion that the best explanation for the Veteran's current hearing loss and tinnitus is noise exposure during his military service.  An April 2011 statement by a VA nurse practitioner was that the hearing loss and tinnitus was at least as likely as not due to service based on the Veteran's statements of noise exposure.  That practitioner did note, however, that there service record had not been reviewed.

Further, the Veteran also testified at his February 2014 hearing that he has had longstanding tinnitus and diminished hearing.  At the August 2009 VA examination, he specifically reported in-service onset of tinnitus.  His wife, whom he met in 1982, also testified that the Veteran has had difficulty hearing for the entire time that she has known him.  He further testified to the lack of occupational exposure to any such extreme noise levels either before or after service.  The Board finds the Veteran to be both competent and credible.  See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that lay testimony may establish the presence of tinnitus because ringing in the ears is capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge).  The Veteran's reports of his in-service noise exposure are consistent with his MOS as listed on his DD 214.  The Veteran's February 2014 testimony as to longstanding tinnitus is consistent with his report of in-service onset of tinnitus at the August 2009 VA examination.  

The Board recognizes that the August 2009 VA examiner offered a negative medical opinion, however this opinion is of no probative value.  The examiner based his opinion on the absence of documented hearing loss at separation from service; and while he noted the Veteran's report of in-service onset for tinnitus, he failed to consider the Veteran's relevant lay statements of longstanding diminished hearing.  The VA examiner further failed to discuss the Veteran's pre-service and post-service employment history.  A medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination).  Dalton v. Peake, 21 Vet. App. 23 (2007).

Moreover, the private opinions thoroughly considered the Veteran's reports of symptoms and history.  Dr. K.J.T. discussed both the Veteran's report of longstanding diminished hearing and tinnitus, and his pre-service and post-service work history lacking significant noise exposure in comparison to his in-service work as a jet engine mechanic.  Dr. R.G. also discussed the Veteran's in-service MOS, lack of other significant noise exposure, and relevant medical history.  

Although the private audiologist did not have access to the Veteran's claims file, each took a detailed history consistent with the information in the claims file as to the Veteran's in-service noise exposure and longstanding history of diminished hearing loss and tinnitus.  Dr. K.J.T. specified that she had reviewed his separation examination, and performed an audiometric assessment.  Dr. R.G. similarly considered the Veteran's in-service noise exposure, work history, and medical history.  The Board finds these opinions of significant probative value as they are derived from a factually accurate, fully articulated, and sound reasoning to support their conclusions.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008).  

As there are diagnoses of bilateral hearing loss and tinnitus which have been related to the Veteran's in-service noise exposure, the Board concludes that the evidence supports the grant of service connection for bilateral hearing loss and tinnitus.  38 C.F.R. § 3.303(a).  Accordingly, service connection for bilateral hearing loss and tinnitus is warranted.


ORDER

Service connection for bilateral hearing loss is granted.  

Service connection for tinnitus is granted.  


REMAND

Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claims of entitlement to service connection for a bilateral knee condition and a lower back condition.

Remand is required for obtaining current VA treatment records.  The RO indicated in December 2010, February 2011, September 2011, and July 2012 rating decisions; and July 2012 and September 2013 SSOCs that these adjudications included electronic review of VA treatment records more recent than those available in the claims file.  The most recent VA treatment records in the claims file are from September 2010.  Further, the Veteran has submitted copies of April 2011 and January 2013 VA treatment records.  As mentioned above, there are no VA treatment records in either VBMS or the Virtual VA claims file.  Therefore, remand is necessary to obtain the Veteran's outstanding VA treatment records.  

Remand is also required to provide examinations.  Moreover, VA's duty to assist includes providing a medical examination when necessary to make a decision on a claim.  Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006).  Here, VA treatment records include an April 2007 X-ray showing bilateral knee degenerative joint disease. Other VA records noted meniscal tears, chondromalacia, and tendinosis.  January 2013 VA radiographs of his thoracic and lumbar spinal regions show an old fracture at L-1, and mild degenerative changes.  The Veteran testified at his February 2014 hearing as to in-service wear on his knees and back as jet engine mechanic, and longstanding symptoms of pain in his knees and back.  Further, a May 2009 VA Agent Orange examination, the Veteran reported back pain since at least 1979 and knee pain since at least 1989.  Accordingly, remand is required for an examination and etiological opinion.

Accordingly, the case is REMANDED for the following action:

1.  Obtain any outstanding VA treatment records.  This request should specifically include records from the Denver VA Medical Center and Lakewood Community Based Outpatient Clinic for treatment since September 2010.  If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file.  Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile.  The non-existence or unavailability of such records must be verified and this should be documented for the record.  Required notice must be provided to the Veteran and his or her representative.  

2.  After the outstanding VA treatment records are associated with the claims file, provide the Veteran an appropriate examination to determine the etiology of each diagnosed knee and low back disorder.  The claims folder, including a copy of this remand, must be made available to the examiner.  Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis.  An explanation for all opinions expressed must be provided.  If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and an explanation provided for that conclusion.  

Based on the medical findings and a review of the claims folder, the examiner is requested to offer an opinion on whether each of the diagnosed disorders, is at least as likely as not (50 percent or greater probability) causally or etiologically related to the Veteran's service.

In providing these opinions, the examiner must address the Veteran's contentions as asserted in his February 2014 hearing regarding his work on jet engines, to include onset and continuity of symptoms.  

3.  When the development has been completed, the case should be reviewed on the basis of additional evidence.  If the benefits sought are not granted, the Veteran and his representative should be furnished a SSOC and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.  

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).

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).




______________________________________________
K. MILLIKAN 
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs