Citation Nr: 1755042 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 11-24 733 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for a skin disorder, to include actinic keratoses and facial scarring, and to include as due to in-service ionizing radiation exposure. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Larry D. Schuh, Attorney WITNESS AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Shauna M. Watkins, Counsel INTRODUCTION The Veteran served on active duty from January 1972 to January 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) located in Boise, Idaho. In May 2012, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing at the RO located in Boise, Idaho. A transcript of the proceeding has been associated with the claims file. In May 2014, the Board remanded the appeal to the Agency of Original Jurisdiction (AOJ) for further development. The appeal has now been returned to the Board. The Board finds there has been substantial compliance with its May 2014 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) The skin claim on appeal has previously been developed to include only skin cancer and actinic keratoses. The United States Court of Appeals for Veterans Claims (Court) has recently held that the scope of a claim includes any disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, the claim on appeal has been recharacterized as a skin disorder, to include the Veteran's current diagnoses. In September 2011, VA received the Veteran's Substantive Appeal concerning the denial of his claims of entitlement to service connection for acquired psychiatric disorder, tinnitus, and right eye. However, a subsequent May 2017 rating decision granted those claims. Therefore, those claims have been resolved, and are no longer before the Board. The issue of entitlement to service connection for a skin disorder, to include actinic keratoses and facial scarring, and to include as due to in-service ionizing radiation exposure, is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT 1. The Veteran was exposed to noise in the service, to include being within close range of an explosion of a tank and of a tripwire explosion. 2. The Veteran's current bilateral sensorineural hearing loss was not manifested during his active military service, is not shown to be causally or etiologically related to his active military service, and is not shown to have manifested within one year from the date of his separation from the military. CONCLUSION OF LAW Service connection for bilateral hearing loss is not established. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating their claims. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). There has been no allegation or suggestion of any lapse on VA's part in meeting these duties. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Bilateral Hearing Loss The Veteran seeks service connection for bilateral hearing loss. 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 thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including organic diseases of the nervous system, such as sensorineural hearing loss, will be presumed if they manifest to a compensable degree within one year following the active military service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. For the showing of a chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a) (2012); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); see 38 C.F.R. § 3.102. If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. As noted above, the first element of service connection requires medical evidence of a current disorder. The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). However, according to VA standards, impaired hearing must be of a certain level to be considered a disability. For purposes of applying the laws administered by VA, hearing impairment will be considered a disability when the thresholds for any of the frequencies at 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the thresholds at three of these frequencies are 26 or greater; or, the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Here, a current diagnosis has been established. On VA examination in March 2017, the Veteran was diagnosed with current bilateral hearing loss in accordance with 38 C.F.R. § 3.385. The examiner also diagnosed the Veteran with bilateral sensorineural hearing loss. Thus, the Veteran has satisfied the first element of service connection. Here, current diagnoses have been established. On VA examination in January 2010, the Veteran was diagnosed with current tinnitus and bilateral hearing loss in accordance with 38 C.F.R. § 3.385. A private October 2009 medical opinion also diagnosed the Veteran with bilateral sensorineural hearing loss. Thus, the Veteran has satisfied the first element of service connection. As stated above, the second element of service connection requires medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease. Initially, the Board notes that the March 2017 VA examiner found that the Veteran's military entrance examination documented preexisting right ear hearing loss. In this regard, the Veteran's January 1972 military entrance audiometric examination provided a suggestion of right ear hearing loss, but did not show sufficient bilateral hearing loss in accordance with VA regulations. 38 C.F.R. § 3.385. Thus, the Veteran is presumed sound and without right ear hearing loss when he entered the military service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b) (Every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service). Accordingly, the Veteran's bilateral hearing loss must be addressed under a direct service connection theory. 38 C.F.R. § 3.303. The Veteran asserts that his bilateral hearing loss was caused by a tripwire explosion during basic training, or a hydraulic pumping unit (HPU) tank rupture or explosion incident. Specifically, the Veteran alleges that on one occasion around July or August 1973, while assigned to the LA-88 Nike Hercules Missile Battery in Chatsworth, California, he was working on a HPU tank hose line for a Nike Hercules missile when the HPU tank depressurized and rupture or exploded, and he alleges that he was thrown by the blast onto his back and that he was sprayed with hydraulic fluid "all over" and experienced a tingling or burning sensation on his face and hands. See, e.g., Form 21-0781, January 2009; Statement, December 2008. As an initial matter, the Veteran's service treatment records (STRs) are silent as to any hearing complaints or treatment. The Board acknowledges that the Veteran's DD Form 214 reflects that his Military Occupational Specialty (MOS) was a Hercules missile crewman. The Veteran's December 1973 military exit audiometric examination again provided a suggestion of right ear hearing loss (the exact same amount that was shown on the entry examination with no evidence of worsening), but did not show sufficient bilateral hearing loss in accordance with VA regulations. 38 C.F.R. § 3.385. In his July 2010 buddy statement, Sergeant J.O., the Veteran's former section chief, reported that after the HPU tank exploded, some personnel complained about their ears ringing or hurting, and that it was his understanding that the Veteran was in a storage area in close proximity to the blast and that the blast would have caused damage to his ears. Interestingly, in a later July 2011 statement, Sergeant J.O. wrote that he actually spoke to the Veteran after the incident in the ready room, and that the Veteran reported that he was having difficulty hearing him. The Veteran's wife testified at the Decision Review Officer (DRO) hearing in April 2011 that when the Veteran returned from service, he would snap his fingers next to his ears and say "I can't hear, I can't hear." See Transcript at 27. The Board also acknowledges a December 2008 statement from the Veteran's friend B.P., who reported that he met the Veteran in 1977, and he had apparent deafness that the Veteran had told him was due to the Nike Hercules missile (HPU tank) incident. Also, the Board acknowledges the February 2009 lay statement from the Veteran's son describing the Veteran's hearing loss. Private treatment records from Kaiser Permanente reflect the Veteran first complained of hearing loss post-service in January 1990, and diagnosed bilateral sensorineural hearing loss in February 1990. Again, the Veteran's active duty ended in January 1974. This lengthy period without treatment for the disorder weighs heavily against the claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (holding that service incurrence may be rebutted by the absence of medical treatment of the claimed disorder for many years after the military discharge). Regarding an etiology opinion concerning the Veteran's current bilateral hearing loss and his active military service, the only medical nexus opinions of record are negative. Specifically, the Veteran was provided with a VA examination in June 2009. At the examination, the Veteran reported post-service recreational noise exposure from shooting and from motorcycle riding. He did not wear ear protection for his recreational noise exposure. The Veteran also described post-military employment involving machine ship work and project manager for a construction company. He wore hearing protection for his employment. The VA examiner opined that the Veteran's bilateral hearing loss was not related to his active service, reasoning that the Veteran's hearing was normal at separation. The Board is mindful, however, that the citation to normal hearing at separation alone does not constitute adequate reasoning. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993); see also Ledford v. Derwinski, 3 Vet. App. 87 (1992). Accordingly, the Veteran was afforded another VA examination in March 2017. At the examination, the Veteran emphasized two specific events from active duty that he felt led to the bilateral hearing loss. The first is "hitting a trip wire" during basic training which "caused an explosion within 10 feet." The second was an explosion of a hydraulic pressure unit in a nuclear missile pit. The Veteran also reported exposure to machinery noise, such as a drill press, with hearing protection after the military. The VA examiner indicated that all documents and evidence in the Veteran's claim file were reviewed, including lay statements (from the Veteran, family members, friends, former military members), previous hearing examinations (active duty entrance and separation exams, Kaiser 2/7/1990, Elks 2008), previous VA audio examination from 2009, NODs, Board Hearing, Board Remand, etc. (over 300 documents in total). Therefore, both subjective and objective evidence were studied when reaching this medical opinion. The March 2017 VA examiner determined that it was less likely than not that the Veteran's current bilateral hearing loss was related to his military noise exposure. The examiner reasoned that the Veteran's MOS was cannon crewmember, which is conceded for high probability of noise exposure. In comparing the Veteran's military separation audiogram, his February 1990 private post-service audiogram, and a November 2008 private audiogram. The examiner stated that the November 2008 private audiogram documented a significant worsening of the Veteran's hearing across all frequencies compared to his 1990 hearing examination. The examiner opined that hearing loss that results from loud noise exposure (such as the Veteran's reports of exposure to the HPU explosion in active duty) has not been found to occur through a delayed onset. The hearing shift occurs immediately following the incident and the ear either repairs itself and recovers some/all of the hearing levels or permanently has hearing loss. The hearing loss from a traumatic event will not suddenly appear years later or continue to shift after the individual is taken away from the environment with a high level of noise. Therefore, the examiner concluded that it was more likely that there was a separate cause outside of the military noise exposure that led to the Veteran's hearing worsening between the period of 1990 to 2008. The examiner opined that the aging process and post-military noise exposures could account for these hearing shifts. The March 2017 VA examiner further reasoned that it was more likely that the Veteran had a temporary threshold shift after the HPU explosion in June or July 1973, which recovered by the time of his separation examination on December 1973. The examiner pointed out that the Veteran has consistently stated on several medical examinations that he noted a shift in his hearing after the HPU explosion, but he also noted some return of his hearing several months after the incident. These statements by the Veteran are considered subjective evidence of recovery from the temporary threshold shift. Later hearing examinations from 1990 and 2008 showed that the Veteran was developing significant permanent hearing shifts sometime between 1990 and 2008. The examiner indicated that these hearing shifts were outside of the military and too late for the onset to be medically attributed to military noise exposure. The Veteran submitted several lay statements from family and friends, reporting that they have always noticed the Veteran to have difficulty with hearing. The Veteran reports that these reports by his family and friends support that he developed his hearing loss from the HPU explosion during active duty. However, the examiner stated that these reports by the Veteran's family and friends were more consistent with the Veteran's objective medical records, which show pre-existing right ear hearing loss and significant worsening of his hearing between 1990 and 2008 (i.e., outside of the military). Therefore, the examiner reported that it would be expected that family members and friends would notice that the Veteran had difficulty with hearing throughout his life due to the pre-existing right ear hearing loss and the worsening of hearing after separating from the active duty. However, the examiner found that family members noticing difficulty with hearing does not indicate that the Veteran's hearing loss was a result of his military noise exposure. The March 2017 VA examiner also cited to the medical literature. Specifically, "In Noise and Military Service: Implications for Hearing Loss and Tinnitus" (2005) by the Committee on Noise-Induced Hearing Loss and Tinnitus Associated with Military Service from World War II to the Present, it is indicated that "no longitudinal studies have examined patterns of hearing loss over time in noise-exposed humans or laboratory animals who did not develop hearing loss at the time of the noise exposure. The committee's understanding of the mechanisms and processes involved in the recovery from noise exposure suggests that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely. When hearing loss is known to have occurred as a result of a noise exposure, it has generally been thought that hearing loss for pure tones does not worsen following the cessation of a given noise exposure." The March 2017 VA examiner clearly reviewed the STRs, lay statements, and other medical evidence in the Veteran's claims folder. The examiner also reviewed the medical literature. The examiner provided an opinion that is supported by and consistent with the evidence of record. He gave an alternative theory to address the etiology of the current bilateral hearing loss - namely, the aging process and post-military noise exposures. The treatment records do not provide contrary evidence. For all of these reasons, the Board finds that service connection for bilateral hearing loss is not warranted. The Veteran reports continuous symptomatology since his active military service. However, the Veteran's contentions are not supported by the medical evidence of record. As stated above, the earliest pertinent post-service medical evidence associated with the claims file is dated from 1990, over fifteen years after the Veteran's military separation in 1974. Furthermore, as pointed out by the March 2017 VA examiner, the record contains evidence of excessive noise exposure post-service, both recreationally and occupationally. The STRs also do not show that the Veteran developed chronic sensorineural hearing loss during his active military service. The STRs do not document any complaints of or treatment for bilateral hearing loss. When the Veteran was first treated post-service in 1990, he did not indicate that his bilateral hearing loss had been present since his active military service. The evidence of record does not document continuity of symptomatology during and since the Veteran's active military service. Thus, the Board finds that the medical evidence does not establish a "chronic disorder." 38 C.F.R. § 3.303; see Walker, 708 F.3d at 1331. The Veteran's service connection claim cannot be granted on this theory of entitlement. Additionally, the Board finds that the Veteran is not entitled to presumptive service connection for bilateral sensorineural hearing loss. As stated above, the earliest post-service medical treatment records are dated from 1990, and the Veteran was separated from the active duty in 1974. No diagnosis of sensorineural hearing loss was made within one year of the Veteran's military discharge. Thus, the presumption for service connection for chronic diseases does not apply. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). In reaching this decision, the Board acknowledges all of the lay statements submitted by the Veteran, his wife, his son, his friend, and his buddy statements. Although the buddy statements and the wife's testimony corroborate the in-service occurrence of the HPU tank rupture or explosion, these statements do not support an etiological relationship between the Veteran's bilateral hearing loss and the alleged incident. Likewise, while the Board acknowledges articles submitted by the Veteran regarding hydraulic fluid injuries in the workplace and accumulator chamber explosions, these also do not address any etiological relationship between the Veteran's bilateral hearing loss and his active service. The Board acknowledges that the Veteran, his son, his wife, his friend, and his buddies are competent, even as lay people, to attest to factual matters of which they have first-hand knowledge, e.g., hearing loss experienced or witnessed. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Although the lay statements are competent to report that the Veteran experienced hearing loss, which they believe resulted in his current bilateral hearing loss, the Board must still weigh the lay statements against the medical evidence of record. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). In making this credibility determination, the Board does not find the lay statements concerning the etiology of the Veteran's bilateral hearing loss to be credible, since his STRs make no reference to bilateral hearing loss, and since the Veteran first reported complaints of bilateral hearing loss in 1990, more than fifteen years after his separation from the active duty. See Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996); see also Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). It is important to point out that the Board does not find that the lay statements lack credibility merely because they are unaccompanied by contemporaneous medical evidence. See Davidson, 581 F.3d at 1313, quoting Buchanan, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). Rather, the lay statements are found to be incredible because they are inconsistent with the evidence of record, which contains only negative nexus medical opinions that were articulated after consideration of the lay statements and which documents post-service noise exposure. For the reasons set forth above, the Board finds that the lay statements asserting that the Veteran's bilateral hearing loss has been present since his active military service are not credible. Therefore, these statements do not warrant a grant of service connection or a determination that further development of the medical evidence is required. All other evidence of record, aside from the lay statements in support of this current claim, is unfavorable to the claim for service connection for bilateral hearing loss. The Board notes that under the provisions of 38 U.S.C. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the Veteran's claim, and thus that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's claim of entitlement to service connection for bilateral hearing loss is not warranted. ORDER The claim of entitlement to service connection for bilateral hearing loss is denied. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board previously remanded this claim in May 2014 for, in pertinent part, a VA examination and medical opinion, which were obtained in March 2017. The Board finds the medical opinion to be inadequate. In providing his negative nexus medical opinion, the VA examiner noted that he was unable to locate the November 1972 STR that addresses the Veteran's rash in service. The Board has searched the Veteran's STRs and the November 1972 STR is located in the Veteran's STR folder in his claims file. Additionally, the VA examiner diagnosed the Veteran with actinic keratoses and facial scarring/hypopigmentation; however, the examiner only provided a medical opinion concerning the actinic keratoses. Thus, a VA addendum medical opinion is required that addresses both of the Veteran's current diagnoses and includes a review of the pertinent STR. See Stegall, 11 Vet. App. at 271 (explaining that a remand by the Court or Board "confers on the veteran ... as a matter of law, the right to compliance with the remand orders"). Accordingly, the case is REMANDED for the following actions: 1. Obtain a VA medical opinion addendum. The complete claims folder must be provided to the examiner for review in conjunction with the examination, and the examiner must note that the claims folder has been reviewed, to specifically include the November 1972 STR which is of record in the STR folder. The examiner should indicate whether it is "at least as likely as not" (meaning likelihood of at least 50%) that the currently diagnosed actinic keratoses and facial scarring/hypopigmentation are related to the Veteran's active service, particularly: a) the documented rash in service in November 1972; and, b) his having been "sprayed" with hydraulic fluid in an event in service. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 2. Then, readjudicate the Veteran's skin disorder claim. If the claim remains denied, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC). After the Veteran and his representative have been given the applicable time to submit additional argument, the claim should be returned to the Board for further review. 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs