Citation Nr: 1802072 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 15-07 535 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a respiratory disorder characterized by shortness of breath to include as due to in-service exposure to asbestos, dust, paint chips, tear gas, and carbon tetrachloride. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Coyne, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Navy from October 1964 to August 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Board notes that the Veteran testified before the undersigned Veterans Law Judge in March 2015. A transcript of that hearing has been associated with the claims file. The issue of tinnitus has been raised by the record by the Veteran's May 2010 VA examination, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The issue of entitlement to service connection for a respiratory condition characterized by shortness of breath is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT Bilateral hearing loss is attributable to service. CONCLUSION OF LAW Bilateral hearing loss was incurred in service. 38 U.S.C. §§ 1101, 1110 (2012); 38 C.F.R. §§ 3.303, 3.304. 3.306, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duty to Notify and Assist Because the benefit is being granted in full, any development or notification actions under the Veterans Claims Assistance Act of 2000 (VCAA) do not avail the Veteran in pursuit of his service connection claim. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126. As such, a discussion of whether the VA has met its statutory and regulatory duties to notify and assist the Veteran with development of his claim is not necessary. II. Entitlement to Service Connection for Bilateral Hearing Loss Service connection may be granted for a disability resulting from disease or injury that is incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for the claimed disorder, the three following criteria must be met: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). For the first criterion of a service connection claim, a disability is considered current so long as it exists at the time the claim is filed or during the pendency of the appeal. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Additionally, for certain diseases designated as chronic, medical nexus may be presumed under certain circumstances. 38 C.F.R. §§ 3.303(a), (b), 3.309(a). For hearing loss claims, impaired hearing is considered a disability if: (1) the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; (2) the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or (3) speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). However, assuming the Veteran has impaired hearing within the meaning of 38 C.F.R. § 3.385, even if the Veteran's hearing is found to have been within normal limits upon separation from service, this does not in and of itself preclude entitlement to service connection. Id. at 159; see also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Finally, organic diseases of the nervous system, such as sensorineural hearing loss and tinnitus, are considered chronic diseases within the parameters of 38 C.F.R. § 3.303(b). Fountain v. McDonald, 27 Vet. App. 258 (2015); VA M-21-1 Adjudication Procedure Manual, Part III., subpart iv., ch. 4, sec. B.2.c. Accordingly, for the purposes of presumptive nexus, the third criterion requiring a nexus between the in-service, event, disease or injury and the claimed disability may be satisfied in one of two ways. First, the nexus element may be satisfied by evidence that the chronic disease at issue here manifested itself to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309. Or, alternatively, the Veteran may show entitlement to service connection by demonstrating a continuity of symptomology after discharge. 38 C.F.R. § 3.303(b); see generally Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A review of the Veteran's May 2010 VA examination report indicates that the Veteran has bilateral sensorineural hearing loss of sufficient severity to be consistent with impaired hearing pursuant to 38 C.F.R. § 3.385. However, a review of the Veteran's service treatment records reveals that his separation physical examination includes only the results of whispered voice tests. Whispered/spoken voice tests cannot be considered as reliable evidence that hearing loss did or did not occur. Whispered/spoken voice tests are notoriously subjective, inaccurate, and insensitive to the types of hearing loss most commonly associated with noise exposure. Veterans Benefits Administration (VBA) Training Letter 10-02, Adjudicating Claims for Hearing Loss and/or Tinnitus, (March 18, 2010); see VA M-21-1 Adjudication Procedure Manual, Part III., subpart iv., ch. 4, sec. B.4.g. As for the Veteran's enlistment physical, there are two physical examinations which contain puretone audiometric results, July 1964 and November 1964. Although it is unclear whether such audiometric results were recorded using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units, the Board notes that utilizing both standards, the Veteran entered active duty service with normal hearing acuity. However, because the Board cannot rely on the whispered voice results on the Veteran's physical, it is not possible to determine whether the Veteran's hearing evidenced any audiometric shifts. The Veteran provided the following testimony at his March 2015 Board hearing. The Veteran reported that during active duty service he served as a machinist mate aboard a ship; this is consistent with the Veteran's personnel records. He stated that he spent up to 16 to 20 hours a day in the engine room when they were at sea and that the noise was unbearable. He reported that he was never provided hearing protection and that his ears would "screech." He reported that he spent about half of his time in the engine room as a machinist mate. He also reported that he used various power tools for other tasks around the ship, including using a needle gun to remove chipped off paint. He reported that he is divorced from his first wife, whom he met in 1968, but that from the time she met him she complained about the Veteran ignoring her and not responding to what she said and that she would get very frustrated with him. He also reported that since his active duty service he noticed that generally when people would say something to him when there was a lot of background noise he would respond incorrectly, misunderstanding what had been said to him. The Veteran also provided testimony regarding his post-service noise exposure. He reported that starting in 1970 he worked for a metal company, who evaluated his hearing annually; however, the Veteran was not informed that he had hearing loss until 1990, following an evaluation by an independent contractor. The Veteran reported that in terms of noise exposure post-service, he worked in maintenance for the metal company and that he had to operate fork lifts and overhead cranes to do his job and that he worked the afternoon and midnight shifts where there was less noise. He also reported that he was required to and did wear hearing protection, that his company took safety protections very seriously, and that he completed hearing protection training with that company. He reported that he had been issued ear plugs and ear muffs and that he wore them through his employment there. The Veteran's May 2010 VA examination report indicates that the Veteran had post-service occupational noise exposure as well as tinnitus, but does not include any information as to whether the Veteran utilized hearing protection. The examiner also noted recreational noise exposure from riding a motorcycle with a helmet. The examiner provided a negative etiology opinion for the Veteran's hearing loss and tinnitus based on the remoteness of his first "complaint" of hearing loss, although it appears she was referring to the Veteran's first assessment for hearing loss in 2007. The Veteran's December 2007 private treatment records document both in-service and post-service noise exposure, and also note that he underwent annual audiometric examinations there. Applying the elements of service connection to the foregoing evidence, the Board finds that the Veteran has a current diagnosis, and that the Veteran has provided competent and credible testimony regarding continuity of symptoms. In this regard, the Board notes that as a layperson the Veteran is competent to report difficulty hearing other people when there is background noise as such an observation does not require medical expertise, and notes that the Veteran's testimony with regard to in-service noise exposure is consistent with his personnel records, private treatment records, and other lay statements of record. Additionally, there is no evidence available regarding the Veteran's puretone audiometric thresholds upon separation from service. Moreover, the Veteran has reported that he consistently used hearing protection for occupational noise exposure post-service and there is no evidence of record undermining the veracity of his lay statement in this regard. Accordingly, given the lack of information as to the Veteran's puretone audiometric thresholds upon separation from service, his competent and credible lay statements with regard to continuity of symptoms, and personnel records consistent with noise exposure, the Board finds that the evidence in support of and against a finding of noise exposure is at least equal. Accordingly, an award of entitlement to service connection for bilateral hearing loss is warranted here. 38 U.S.C. §§ 1101, 1110 (2012); 38 C.F.R. §§ 3.303, 3.304. 3.306 (2017). ORDER Entitlement to service connection for bilateral hearing loss is granted. REMAND Unfortunately, due to reasons that follow, a remand is required. Although the Board regrets this delay, it is necessary to ensure the Veteran is afforded adequate claim development assistance. In disability compensation claims, a VA medical examination must be provided when: (1) there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) there is evidence which establishes that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; (3) there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability; but (4) insufficient competent medical evidence on file for the Board to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Moreover, under the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations, VA has a duty to notify and assist the claimant in substantiating a claim for VA benefits. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). VA's duty to assist includes either procuring, or helping the claimant procure service treatment records and other pertinent treatment records. 38 U.S.C.A. § 5103A ; 38 C.F.R. § 3.159. As the foregoing applies to the Veteran's shortness of breath claim, the Board notes that the Veteran has provided testimony regarding shortness of breath, and has also indicated that during service he would "hack stuff up" and that a black substance came out of his nose when he blew it. Additionally service treatment records are consistent with some respiratory complaints. Moreover, the Veteran provided Board hearing testimony and other lay statements in his Notice of Disagreement (NOD) and formal appeal indicating that he was exposed to various environmental hazards including asbestos, dust, paint chips, tear gas, and carbon tetrachloride. Finally, a May 2010 deferred rating decision notes that because the Veteran served as a machinist, asbestos exposure during service was probable. Accordingly, there is sufficient evidence of the first and second element of service connection to warrant remand for a VA examination and procurement of an etiology opinion. Additionally, a review of the Veteran's claims file reveals that he provided information for pulmonology records from a private medical treatment provider, Dr. S. G. in September 2012. At his Board hearing the Veteran also indicated that he received some treatment for nodules on his lungs at Edwards Hospital and that an MRI was completed at MCI. Accordingly, on remand, attempts should be made to procure the Veteran's outstanding private treatment records from Dr. S. G. and the Veteran should be provided a release authorization for procurement of treatment records from additional private medical providers or the opportunity to procure and submit those records himself. Accordingly, the case is REMANDED for the following action: 1. Attempt to procure the Veteran's private treatment records from Dr. S. G. identified by the Veteran in September 2010 correspondence. Additionally, provide the Veteran with a release authorization form for any outstanding private medical records pertinent to his respiratory claim, including those records identified above in the body of this remand decision. If he returns the requested information, attempt to obtain the records. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. Then, after completing #1, conduct a scheduled examination with an appropriate clinician for the Veteran's respiratory claim. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. a. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. b. The examiner is asked to diagnose any current respiratory conditions. Then if any respiratory condition is diagnosed please provide the following opinion: i. is it at least as likely as not (50 percent or greater probability) that a diagnosed respiratory disorder: (1) began during active service; or (2) is otherwise related to an incident of service to include his claimed in-service exposures to asbestos, dust, paint chips, tear gas, and carbon tetrachloride. In this regard, the VA examiner should note that based on the Veteran's military occupational specialty (MOS) as a machinist mate, asbestos exposure is "probable." See M21-1, Part IV.ii.1.l.3.c. ii. c. 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 so and provide a rationale for this conclusion, including an explanation of whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion. 3. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 4. After undertaking any necessary additional development, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). (Continued on the next page) This claim must be afforded expeditious treatment. The law requires that all claims 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). S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs