Citation Nr: 1605445 Decision Date: 02/11/16 Archive Date: 02/18/16 DOCKET NO. 11-00 358 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Service connection for bilateral hearing loss. 2. Service connection for vertigo, claimed as secondary to the service-connected tinnitus disability. ATTORNEY FOR THE BOARD J. Ragheb, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from December 1972 to August 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Milwaukee, Wisconsin, RO has jurisdiction of the current appeal. The Board has reviewed both the Veterans Benefits Management System (VBMS) and "Virtual VA" files so as to insure a total review of the evidence. The case was previously before the Board in January 2014 where the Board remanded the issue of service connection for bilateral hearing loss to the Agency of Original Jurisdiction (AOJ) for a VA examination and nexus opinion. Subsequently, in an August 2014 decision, the Board denied service connection for bilateral hearing loss. The Veteran appealed the August 2014 Board decision to the U.S. Court of Appeals for Veterans Claims (Court). In a June 2015 memorandum decision, the Court vacated and remanded the August 2014 Board decision. Specifically, the Court held that the Board erred in failing to ensure that the directives of the January 2014 Board Remand had been followed. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision). The issue of service connection for vertigo is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran currently has a hearing loss disability of bilateral sensorineural hearing loss (SNHL). 2. The Veteran was exposed to acoustic trauma (loud noise) during service. 3. The current bilateral SNHL had its onset in service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral sensorineural hearing loss have been met. 38 U.S.C.A. §§ 1110, 1112, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). In this case, the Board is granting service connection for bilateral sensorineural hearing loss, which constitutes a full grant of the benefit sought on appeal with respect to this issue. As there remains no aspect of this issue to be further substantiated, there is no further VCAA duty to notify or assist, or to explain compliance with VCAA duties to notify and assist. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection for Bilateral Hearing Loss Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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). In this case, the Veteran has been diagnosed with bilateral SNHL, an organic disease of the nervous system, which is a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307(a)(3), and 3.309(a) apply to the claim for service connection for bilateral hearing loss. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. In order to show a "chronic" disease in service, the record must reflect a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Where a chronic disease has been incurred in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required in order to establish entitlement to service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and SNHL (as an organic disease of the nervous system) becomes manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Federal Circuit has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d 1372. In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran contends that service connection is warranted because his bilateral loss began in service as a result of in-service noise exposure from helicopters, fighter jet engines, and small arms fire. The Board finds that the Veteran has a current disability of bilateral SNHL. The March 2015 VA examination report shows that the Veteran has a bilateral hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. The March 2015 VA examination report also shows a diagnosis of bilateral SNHL. The Board finds that the Veteran had in-service loud noise exposure. The Veteran has stated that he was exposed to loud noise from helicopters, fighter jet engines, and small arms fire during service. The DD Form 214 shows that the Veteran's military occupational specialty (MOS) was a boatswain's mate with service aboard the U.S.S. John F. Kennedy, an aircraft carrier. As such, exposure to acoustic trauma (loud noise) is established. The Board finds that the evidence is in relative equipoise on the question of whether the current bilateral SNHL began in service, that is, whether the bilateral SNHL was directly "incurred in" service. Evidence weighing in favor of this finding includes the Veteran's assertions that hearing loss started in service after in-service loud noise exposure. Moreover, the Veteran has been granted service connection for tinnitus based on similar assertions of onset of tinnitus in service after the same loud noise exposure. Similar to tinnitus, SNHL is linked with nerve damage that most often occurs "when the tiny hair cells in the cochlea are injured." Fountain v. McDonald, 27 Vet. App. 258, 266 (2015) (quoting VA Training Letter 10-02). More specifically, in Fountain, the Court referenced VA Training Letter 10-02, in addition to other medical and legal authority, and noted that chronic sensorineural hearing loss, as an organic disease of the nervous system, was considered a condition listed under 38 C.F.R. § 3.309(a), was due to a problem in the inner ear or in the auditory nerve between the inner ear and the brain, and was commonly caused by chronic exposure to excessive noise, in addition to age-related hearing loss. The Court noted that chronic sensorineural hearing loss caused by acoustic trauma resulted in damage to the inner ear and was an organic disease of the nervous system under 38 C.F.R. § 3.309. Because the Veteran sustained nerve damage that caused the service-connected tinnitus, by necessary inference, the Veteran sustained the same nerve damage to the inner ear that caused the current SNHL. The Board finds that, based upon both medical and legal authority, the in-service acoustic trauma caused permanent nerve damage to the auditory nerve or inner ear, which denotes the onset of the current SNHL in service. Such SNHL is a permanent disability that was incapable of actual improvement of the nerve damage because chronic SNHL either progresses or remains the same (i.e., progression may be prevented), while restoration (i.e., improvement) of chronic SNHL that was caused by acoustic trauma is not medically possible. See Fountain, 27 Vet. App. 258; VA Training Letter 10-02. The evidence weighing against a finding of in-service onset of bilateral SNHL includes the service entrance and separation reports of medical examination showing no significant threshold shift in the Veteran's audiometric numbers, as per the January 2010 and March 2013 VA examiners, as well as the August 1973 report of medical history showing that the Veteran denied current symptoms and a history of hearing loss and ear trouble at service separation. Resolving reasonable doubt in the Veteran's favor on this question, the Board finds that the current bilateral SNHL began during service, that is, bilateral SNHL was directly incurred in service. 38 C.F.R. § 3.303(a), (d). For the reasons discussed above and resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for bilateral SNHL is warranted as directly incurred in service. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 3.303(a), (d). Because the Board is granting service connection on a direct basis, all other theories of entitlement to service connection are rendered moot. ORDER Service connection for bilateral sensorineural hearing loss is granted. REMAND Service Connection for Vertigo In a May 2015 rating decision, the RO denied service connection for vertigo. In an October 2015 statement, the Veteran disagreed with the RO's decision to deny service connection for vertigo. See October 2015 VA Form 21-0958. A statement of the case is required, and a remand order is necessary in such cases where a notice of disagreement has been received. See 38 C.F.R. §§ 19.9, 20.200, 20.201 (2015); Manlincon v. West, 12 Vet. App. 238 (1999). The purpose of the remand with respect to the above-referenced issue is to give the AOJ an opportunity to issue a statement of the case. Thereafter, the AOJ should return the claims file to the Board only if the Veteran perfects the appeal in a timely manner. Accordingly, the issue of service connection for vertigo is REMANDED for the following action: The AOJ should issue a statement of the case that addresses the issue of service connection for vertigo. The Veteran should be informed that, in order to perfect an appeal of this issue to the Board, he must file a timely and adequate substantive appeal following the issuance of the statement of the case. 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 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 2014). ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs