Citation Nr: 1640224 Decision Date: 10/07/16 Archive Date: 10/19/16 DOCKET NO. 12-12 921 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for residuals of head injury (other than balance problems). (The issues of entitlement to service connection for skin condition and vertigo, as well as the issue of entitlement to an increased evaluation for PTSD, will be addressed in a separate decision). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Dodd, Counsel INTRODUCTION The Veteran served on active duty from July 1969 to July 1971. He is a Vietnam veteran who earned the Combat Infantryman Badge (CIB). This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. In October 2010, the RO denied service connection for residuals of head injury, and hearing loss. The Veteran filed a timely notice of disagreement (NOD) with respect to these issues, and the RO issued a statement of the case (SOC). The Veteran perfected the appeal with respect to those issues. The head injury issue has been bifurcated as noted on the title page in view of the fact that the Board previously awarded a partial grant of the benefits sought in its March 2014 decision. In March 2013, the Veteran testified at a video conference hearing before the undersigned Acting Veterans Law Judge. A transcript of the hearing is associated with the claims file and has been reviewed accordingly. These claims were previously before the Board in March 2014, at which time they were remanded for additional development. That development having been completed, these claims are once again before the Board. This appeal was processed using the Virtual VA (VVA) and Virtual Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. FINDINGS OF FACT 1. The Veteran engaged in combat with the enemy. 2. The Veteran has a current bilateral hearing loss disability, which had its onset in service. 3. The probative medical evidence of record does not show that the Veteran has a diagnosed traumatic brain injury or any other residuals of an in-service head injury. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). 2. The criteria for service connection for the residuals of a head injury are not met. 38 U.S.C.A. §§ 1110, 5103, 5103(a), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA With regard to the Veteran's claim for service connection for bilateral hearing loss, to the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran. Given the favorable nature of the Board's decision herein, any error in notice or assistance is harmless. With regard to the Veteran's claim for service connection for residuals of head injury (other than balance problems), 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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Proper VCAA notice must inform the claimant of any information and medical or lay evidence not of record that (1) is necessary to substantiate the claim; (2) VA will seek to provide; and (3) the claimant is expected to provide. 38 U.S.C.A. § 5103 (a) (West 2014); 38 C.F.R. § 3.159 (b)(1) (2015). This notice must be provided prior to the initial adjudication of a claim by the RO. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, the letter dated March 2010, sent prior the initial unfavorable decision in December 2010, advised the Veteran of the evidence and information necessary to substantiate his service connection claim, as well as his and VA's respective responsibilities in obtaining such evidence and information. The notice letters also provided notice of the evidence and information necessary to establish a disability rating and effective date in accordance with the court's ruling in Dingess. See Dingess v. Nicholson, 19 Vet. App. 473, 490-91 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The record reflects that VA has made reasonable efforts to obtain or to assist in obtaining the relevant records pertinent to matter herein decided. The pertinent evidence associated with the claims consists of the service treatment records, private treatment records, VA treatment records, reports of VA examinations, and the Veteran's statements. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. The Board therefore finds that VA has met its duty to assist the Veteran in obtaining the relevant records. In view of the foregoing, the Board finds no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim decided herein. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 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). The Veteran has also been afforded a hearing before the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103 (c)(2) requires the hearing officer who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the presiding Acting Veterans Law Judge identified the issues to the Veteran, noted the bases for the RO's denial, and indicated the evidence necessary to substantiate the claims. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103 (c)(2) , nor has he identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claim on appeal and the Veteran provided testimony relevant to those elements. Moreover, to the extent there was any deficiency, the Board remanded this appeal in March 2014 to obtain outstanding VA treatment records and to accomplish other development. As such, the Board finds that there is no prejudice in deciding the claim at this time and no further action pursuant to Bryant is necessary. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Legal Criteria Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated by service. 38 U.S.C.A. §§ 1110 (West 2014); 38 C.F.R. § 3.303 (a) (2015). Service connection may be established for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Generally, service connection requires evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 C.F.R. § 3.303 (a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, such as other organic diseases of the nervous system (i.e., sensorineural hearing loss), may be presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Under 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, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the above frequencies 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. See Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (upholding the validity of 38 C.F.R. § 3.385 , to define what constitutes a hearing loss disability for VA compensation purposes); Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (38 C.F.R. § 3.385 establishes when hearing loss constitutes a disability for entitlement to VA disability compensation benefits). In each case where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's treatment records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154 (a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson 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 v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1377 (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C.A. § 5107 (a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). The Board shall consider all information and lay and medical evidence of record. 38 U.S.C.A. § 5107 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Background and Analysis Bilateral Hearing Loss The Veteran contends that his currently diagnosed bilateral hearing loss is the result of acoustic trauma during military service. The Veteran contends that he has bilateral hearing loss related to the use of ordnance during service. He indicates that he has experienced hearing loss since his military service. Hearing Transcript at 12. The Board also notes that the Veteran is service connected for tinnitus, and exposure to acoustic trauma in service was conceded by the RO. In this case, the Veteran essentially alleges that his hearing loss began immediately after being in a combat situation. See Board Hearing Transcript at p. 11-13. It is noted that the Veteran received a Combat Infantry Badge for his service in the Republic of Vietnam, and the Board makes a factual finding that he engaged in combat with the enemy. See DD-214. Therefore, relevant to this case is the relaxed evidentiary standard of proof afforded combat Veterans under 38 U.S.C.A. § 1154(b). See Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). That provision directs that, when a disability is alleged to have been incurred or aggravated in combat, this element may be met through satisfactory lay evidence, consistent with the circumstances, conditions, or hardships of a veteran's verified combat service, even when there is no official record of the incident. Id. Significantly, however, 38 U.S.C.A. § 1154(b) does not establish a presumption of service connection; rather, it eases a combat Veteran's burden of demonstrating the occurrence of some in-service incident to which the current disability may be attributed. See id. The section 1154(b) presumption can be used not just to show the incurrence of an event or injury, but to show that a veteran incurred a permanent disability in service. Reeves v. Shinseki, 682 F.3d 988, 999-1000 (Fed. Cir. 2012). In such cases, it may be far easier for a veteran to establish that there was a nexus between military service and the severe disability with which he or she was afflicted after leaving the military. Id. Instead of attempting to establish that the injury suffered while in the military led to a disability following his service, a veteran "would only have had to show that the [] disability he incurred in service was a chronic condition that persisted in the years following his active duty." Id. Notwithstanding, the Federal Circuit explained that "[e]ven when the section 1154(b) combat presumption applies, a 'veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury, disease, or aggravation of a preexisting injury or disease incurred during active duty.'" Id. at n. 9. Thus, the reduced evidentiary burden only applies to the question of service incurrence, and not to the remaining service-connection elements of current disability and nexus. Turning to the elements of service connection, the Board finds that the Veteran has a current bilateral hearing loss disability. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement of a "current disability" is satisfied if a disorder is diagnosed at the time a claim is filed or at any time during the pendency of the appeal). He has a diagnosis of bilateral hearing loss in outpatient treatment records and the VA examinations. Furthermore, with regard to the second element of in-service incurrence, even though there is no express notation of a hearing loss disability in service, as the Veteran engaged in combat he is entitled to the presumption that the combat injury occurred as he reported. He stated, "I was in the field a lot, and we had a lot of close encounters, a slot of small arm fire, a lot of artillery shells hitting real close, mortars and cannon, you know, in our perimeters." See Board Hearing Transcript at p. 13. Additionally, in light of the case law set forth in Reeves v. Shinseki, 682 F.3d 988, 999-1000 (Fed. Cir. 2012), discussed above, the combat presumption of 38 U.S.C.A. § 1154(b) can be used to show the incurrence of an event or injury, as well as to show that a veteran incurred a permanent disability in service, as is the case here, because Veteran has provided lay statements claiming that he was exposed to noise but that he also had decreased hearing at that time. See Board Hearing Transcript at p. 12 (confirming that he had problems with his ears "ever since [he was] exposed to that noise in service."). Thus, the second element necessary for service connection has been established. The remaining element for service-connection is a nexus between the present disability and the disorder manifest in service. In this case, the lay evidence is sufficient to establish the nexus. The U.S. Court of Appeals for the Federal Circuit has repeatedly held that, in certain circumstances, lay evidence alone is sufficient to establish the third element of service connection. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that this Court erred in categorically stating that a valid medical opinion was required to establish nexus and in rejecting the appellant's nexus evidence because she was a layperson). Moreover, with the combat presumptions at play, a veteran "would only have had to show that the [] disability he incurred in service was a chronic condition that persisted in the years following his active duty," pursuant to Reeves v. Shinseki, 682 F.3d 988, 999-1000 (Fed. Cir. 2012). The Veteran is competent to report decreased hearing because this is within his personal knowledge or realm of expertise. Layno v. Brown, 6 Vet .App. 465, 469-70 (1994). He has provided statements and testimony reporting that symptoms of hearing loss began in service and that, although he did not seek formal in-service or post-service treatment for bilateral hearing loss until much later, those symptoms have gotten progressively worse ever since his noise exposure in service. See Board Hearing Transcript at p. 13 (for example, noting that people have said that he does not hear them when they speak from behind his back). Here, the Veteran's chronology of events is highly probative in assessing nexus between his current diagnoses and his in-service symptoms. He consistently and credibly reported the onset of bilateral hearing loss in service resulting from his combat noise exposure, and, again, he is entitled to a presumption of in-service incurrence due to his combat-status at the time of its occurrence. The Board acknowledges that several negative nexus opinions were provided by VA examiners. However, these opinions are of limited probative value because they do not align with the combat presumption of in-service incurrence that applies here. Additionally, because the Veteran's report of recurring decreased hearing loss since service us competent and credible, the Board finds that the rationale provided by the VA examiners is inadequate to the extent they may have inappropriately relied on the absence of documentation of in-service hearing loss or decreased threshold shifts in the record as the sole basis for the negative opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (whether the medical expert provided fully articulated opinion is one factor in determining the probative value of a medical opinion). Accordingly, notwithstanding the negative VA opinions, the Board finds that the competent and credible lay evidence is sufficient to establish a nexus between the Veteran's current disability and the hearing loss that is presumed to have been incurred in service. Given the diagnosis of bilateral hearing loss rendered during the appeal period, the Veteran's in-service combat noise exposure and onset of his hearing loss, and his competent and credible lay evidence of nexus, the Board finds that the evidence supports the establishment of service connection. As such, the Veteran's service-connection claim for bilateral hearing loss is granted. Head Injury Residuals The Veteran contends that he was hit on the head with a bat during a riot while on guard duty in Germany. He maintains that the current residuals of his in-service head injury include headaches, memory problems, light sensitivity, and vision impairment. Hearing Transcript at 4-5. Service treatment records show that, in May 1971, the Veteran sustained contusion injuries after being involved in a "riot difficulty." The injuries included swelling of the left frontal forehead area. The Veteran was discharged from service six weeks later. The June 1971 separation examination report contains an abnormal neurologic evaluation and a diagnosis of vasovagal syncope. A review of the Veteran's outpatient treatment records shows that he has been seen for complaints of headaches, memory loss, and concentration problems. In particular, in a February 2014 record, the treatment provider indicated that the Veteran's symptoms could possibly be indicative of a traumatic brain injury. However, the treatment provider stopped short of providing an actual diagnosis and deferred the Veteran diagnosis for neurological testing. A review of the medical evidence of record does not show that the Veteran ever completed any follow-up neurological testing in this regard. The Veteran was provided with a VA examination in November 2010. Upon a review of the claims file, subjective interview, and objective testing, the VA examiner indicated that the Veteran did not have a diagnosis of traumatic brain injury or any other residuals of his in-service head injury. Although the circumstances of the in-service head injury were reviewed, the VA examiner noted that such injury appeared to have completely resolved. Additionally, it was noted that the Veteran did not currently present with any significant symptoms, to include his claimed headaches, memory problems, light sensitivity, and vision impairment, which were found to not be shown to have been impacted by any prior head injury. After a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim for entitlement to service connection for the residuals of a head injury. In making this determination, the Board highlights that the first element required for service connection is the existence of a current disability. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Without a current disability, service connection cannot be granted. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (finding that the requirement of having a current disability is met "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim"); Brammer v. Derwinski, 3 Vet. App. 233, 225 (1992) (noting that service connection presupposes a current diagnosis of the claimed disability). With respect to the first element required for service connection, in this case, the evidence does not show that there is a current disability for which service connection may be granted, as the medical evidence of record reveals no diagnosed disability manifested by a residual of a head injury, to include traumatic brain injury. Rather, the Veteran's post-service record are absent for any such discussion, but only include the mention of the possibility of the Veteran's symptoms being attributable to a prior head injury without any confirmation or objective testing. Rather, the most extensive neurological testing provided to the Veteran in this regard was via the November 2010 VA examination which ruled out any such diagnosis. There was no medical finding consistent with the criteria for any other neurological diagnoses, to include traumatic brain injury residuals. The only other evidence in the claims file supporting the existence of a disability manifested by an acquired psychiatric disability that is chronic is the Veteran's own statements. The Board notes that the Veteran is competent to testify as to a condition within his knowledge and personal observation. See Barr, 21 Vet. App. at 308-10. However, it is clear, based on a detailed review of the statements overall, that the Veteran does not have any actual specialized knowledge of medicine in general, or neurology more particularly, and that he is merely speculating as to whether he has such a current chronic disability. In this regard, he is not competent to diagnose a chronic disability manifested by the residuals of a head injury, as such diagnoses require specialized medical knowledge and specific testing. See 38 C.F.R. § 3.159 (stating that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). As such, the Veteran's statements to the effect that he has a current chronic disability manifested by residuals of a traumatic brain injury is lacking in probative value. In short, in the absence of medical evidence demonstrating any current chronic disability manifested by any residuals of a head injury, a preponderance of the evidence is against the claim. Accordingly, because the first element required for service connection-presence of a current disability has not been satisfied, the Veteran's claim of entitlement to service connection for the residuals of a head injury must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for residuals of head injury (other than balance problems) is denied. ____________________________________________ K. GIELOW Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs