Citation Nr: 1801010	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  11-16 488	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for a right knee disability.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

P. Mays, Associate Counsel


INTRODUCTION

The Veteran served in the United States Air Force from December 1975 to December 1979.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Cleveland, Ohio

The Veteran appeared and testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ) in September 2017.  A copy of the transcript of the hearing has been associated with the claims file. 

The issue of entitlement to service connection for a right knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran has a current diagnosis of bilateral hearing loss that meets the criteria of 38 C.F.R. § 3.385 (2017).

2.  The Veteran's service personnel records demonstrate that he served as a military security officer and was subject to noise from military flight line jets.

3.  The most probative evidence of record indicates that the Veteran's bilateral hearing loss is related to service.


CONCLUSION OF LAW

The requirements for establishing service connection for bilateral hearing loss have been met.  38 U.S.C. §§1101, 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran contends that his hearing loss is a result of his service as a security officer in the flight line during the military, for which he was provided inadequate hearing protection.

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability.  Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013).

The Board must consider and assess the credibility and weight of all evidence in the claims file, including the medical and lay evidence, to determine its probative value.  See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012), which held that the Board did not improperly discount the weight of a lay opinion in finding medical experts opinion more probative on a medical issue.  Lay evidence is competent only if it is provided by a person who has knowledge of the facts or circumstances and it conveys matters that can be observed and described by a lay person. See 38 C.F.R. § 3.159 (a)(2); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  

The determination as to whether a Veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385.  For the purpose of applying the law 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, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  See 38 C.F.R.§ 3.385.  Pure tone thresholds above 20 decibels indicate some hearing loss, irrespective of whether it is severe enough to qualify as a disability for VA compensation purposes.  See Hensley v. Brown, 5 Vet. App. 155 (1993).  

The Veteran underwent a March 2010 VA audio examination.  His pure tone thresholds in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
55
80
85
90
LEFT
30
50
85
90
100

The average pure tone threshold was 78 in the right ear and 81 in the left ear.  His word recognition score using the Maryland CNC test was 72 percent in the right ear and 70 percent in the left ear.  

The Veteran's bilateral hearing loss constitutes a disability for VA purposes.  38 C.F.R.§ 3.385.  The first element of a service connection claim is met.  

The Veteran's entrance examination in December 1975 showed that his hearing was within normal limits upon entry into the service.  His separation examination in November 1979 also showed his hearing to be within normal range.  The Veteran maintains, however, that the hearing loss occurred because of service.  At his hearing, he stated that his job in the service was as a security police officer, which caused him to have to walk in the flight line.  He stated that he guarded aircraft.  In this capacity, he contends that he was exposed to noise.  He argues that the hearing protection he was provided was inadequate.   He stated:

[T]he hearing protection we were provided, we used to call them Mickey Mouse ears.  They were two plastic cups that has plastic on the outside that they fit on your head.  Most of the times, they were either broken or not and you'd be out there a lot walking flight lines in the middle of nowhere and air craft would sit and just taxi right there so we was around a lot of high pitch noise for long periods of time every day.

The Board acknowledges that the Veteran had in-service noise exposure.  The Veteran's testimony and evidence are competent and credible regarding his exposure to loud noise from loud jet flight line engines.  See Layno v. Brown, 6 Vet. App. 465 (1994).  His DD-214 form shows that he was a Security Specialist while in service.  The second element of a service connection claim, an in-service event or injury, is met.   

The remaining question is whether there is a nexus between the current disability and the Veteran's military service. 

The VA examiner concluded in March 2010, that the Veteran's hearing loss was less likely than not caused by his military service.  His reasoning was that there was no significant hearing noted on the Veteran's enlistment and separation physicals.  His hearing loss first appeared in 1984 according to the examiner, and worsened during his career with DuPont.  The examiner concluded that post-service occupational noise exposure caused his hearing loss.  This opinion provides probative evidence against the Veteran's claim.  

The Veteran received a subsequent audiological opinion from Dr. T. N. of the Disease of the Ears Nose and Throat, Inc. in November 2011.  In his opinion, the doctor stated that he believed the etiology of the Veteran's hearing loss was noise induced rather than hereditary.  He opined that his hearing loss "could be" either from noise exposure (occupational or military), hereditary factors, or both.  Speculative language such as "could be" does not create an adequate nexus for the purposes of establishing service connection, as it does little more than suggest a possibility of a relationship.  See Warren v. Brown, 6 Vet. App. 4 (1993) (doctor's statement framed in terms such as "could have been" is not probative).  Dr. T. N.'s opinion is not probative. 

At his September 2017 hearing, the Veteran testified that he began to notice a decrease in hearing acuity in the early 1980s.  His wife, a former nurse, stated that she met the Veteran in 1981.  At that time, she noted that he had problems hearing.  The Veteran is competent to report a decrease in hearing acuity, and his wife is competent to describe her observations of the Veteran's behavior regarding his hearing.  Their testimony is both competent and credible.  The hearing testimony establishes that the Veteran had problems hearing prior to 1984, when he began his career at DuPont.  The Veteran has asserted that his bilateral hearing loss has persisted since shortly after service.  Bilateral hearing loss is a chronic condition as set forth in 38 C.F.R. § 3.309(a).  Therefore, the theory of continuity of symptomatology is applicable in this case.  38 C.F.R. § 3.303(a),(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  The Board finds the hearing testimony to be probative evidence in favor of the Veteran's claim.  

The March 2010 VA examiner's negative opinion and the competent, credible hearing testimony regarding continuity of symptoms are in relative equipoise.  Thus, resolving doubt in the Veteran's favor, the Board finds that the Veteran's hearing loss is related to his military service and in-flight noise exposure.  38 C.F.R. § 3.303 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  


ORDER

Service connection for bilateral hearing loss is granted.


REMAND

The Veteran indicates that he injured his right knee in service as a result of wear and tear from walking on the flight line.  The Veteran has not been afforded a VA examination with respect to his right knee.  VA's duty to assist includes providing a medical examination and obtaining an opinion when it is necessary to make a decision on a claim.  38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159.  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, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability.  38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006).  The threshold for finding a link between a current disability and service so as to require medical examination is low.  Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83.  December clinical progress notes from the Chillicothe VA Medical Center (VAMC) indicate that X-rays of the right knee showed degenerative changes consistent with osteoarthritis.  The Veteran asserts that his knee injury is a result of his duties on the flight line.  As such, the Board finds that  remand is required in order to afford the Veteran a VA examination to determine the etiology of his claimed right knee disability.  

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for an examination with an appropriate clinician for his right knee disability.  The entire claims file should be made available to and be reviewed by the examiner.  

The examiner should provide an opinion as to whether his right knee disability at least as likely as not (a 50 percent or greater degree of probability) had its onset in service or is otherwise related to service.

Although an independent review of the claims file is required, the examiner's attention is called to the Veteran's September 2017 hearing testimony, where he states that believed that his knee disability is due to wear and tear from walking the flight line during his active service.  

The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report.  If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 

2.  Review the examination report to ensure that it is in compliance with the directives of this remand.  If the report is deficient, corrective procedures should be implemented.  

3.  Readjudicate the claim.  If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response.  Then, return the case to the Board.

The appellant 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. §§ 5109B, 7112 (2012)




______________________________________________
D. Martz Ames
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs