Citation Nr: 1804302 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 13-11 519 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a right ear hearing loss disability. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for hypertension, to include as due to exposure to herbicide. 4. Entitlement to service connection for a heart disability, to include as due to exposure to herbicide. 5. Entitlement to service connection for a transient ischemic attack, to include as due to exposure to herbicide. 6. Entitlement to a compensable rating for a left ear hearing loss disability. 7. Entitlement to a compensable rating for residuals of a left thumb injury prior to March 13, 2017, and in excess of 20 percent beginning March 13, 2017. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jessica O'Connell, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1953 to June 1973, to include verified service in the Republic of Vietnam from April 1967 to April 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In February 2016, the Veteran testified at a videoconference hearing before a Veterans Law Judge. A transcript of the hearing is of record. The Veterans Law Judge who presided over that hearing is no longer with the Board. In an October 2017 letter, the Veteran was notified of that fact and informed of his right to have a new hearing before a current member of the Board. In a November 2017 response, the Veteran specifically waived his right to appear at a new hearing and requested that his case be considered based on the evidence of record. This case was previously before the Board, most recently in May 2016, at which time the issues currently on appeal were remanded for additional development. The case has now been returned to the Board for further appellate action. The Board notes that in May 2016, the issue of entitlement to service connection for a stomach disability, to include ulcers and gastroesophageal reflux disease (GERD) was also remanded for additional development. In a May 2017 rating decision, the Veteran was granted entitlement to service connection for stomach ulcers diagnosed as GERD. There is no indication from the record that the Veteran has disagreed with the effective date or rating assigned for that disability in the May 2017 rating decision. Therefore, that decision constitutes a complete grant of the benefit sought on appeal and the Board has limited its consideration accordingly. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c) (2017). The issues of entitlement to service connection for a right knee disability, hypertension, a heart disability, and a transient ischemic attack, as well as the issues of entitlement to an increased rating for a bilateral hearing loss disability and an increased rating for residuals of a left thumb injury are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Right ear hearing loss disability is etiologically related to acoustic trauma sustained in active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a right ear hearing loss disability have been met. 38 U.S.C. §§ 1101, 1131, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has asserted that he has right ear hearing loss disability as a result of acoustic trauma sustained in active service. Specifically, the Veteran reported exposure to hazardous noise in the form or large and small arms fire, aircraft noise, and tank engine noise. A review of the Veteran's DD Form 214 shows that his military occupational specialty (MOS) while in active service was an aircraft maintenance supply man. Further, the Veteran served in support of combat operations in the Republic of Vietnam. Accordingly, the Board finds that the Veteran's reports of noise exposure are credible and are also consistent with the circumstances of his service. Therefore, the Board concedes that the Veteran sustained acoustic trauma during active service. Service treatment records (STRs) are silent for complaints of, or treatment for right ear hearing loss disability while the Veteran was in active service. However, a March 1963 audiogram does show some evidence of right ear hearing loss disability at 4000 Hertz. Regardless, the Veteran has reported that he first experienced decreased right ear hearing acuity during active service and that his symptoms have persisted since that time. The Board finds that the Veteran is competent to report when he first experienced right ear decreased hearing acuity and that his symptoms have continued since service. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran to be credible in that respect. The Board notes that throughout the period of the claim, the Veteran has had a current diagnosis of a right ear hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. The record contains a March 2017 VA medical opinion, finding no relationship between the Veteran's diagnosed right ear hearing loss disability and his active service. However, the Board finds that opinion is inadequate because it failed to discuss and consider whether audiograms performed prior to 1970 were done so under ASA standards or ISO-ANSI standards. It also failed to discuss the March 1963 audiogram which showed some evidence of hearing loss in the right ear, and merely focused on comparing the results of the first audiogram of record, dated July 1958, and the last one of record dated February 1973. As the opinion is inadequate, it cannot serve as the basis of a denial of entitlement to service connection. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F .3d 1331 (Fed. Cir. 2006). Here, the Veteran is competent to identify decreased hearing acuity, and as noted above, his statements have been found credible. In sum, the Board concedes that the Veteran sustained acoustic trauma in active service. The VA medical opinion of record is not probative evidence against the claim. The Veteran has competently and credibly reported decreased right ear hearing acuity during and since service. In addition, he has a current diagnosis of right ear hearing loss disability for VA purposes. Therefore, the Board finds that the evidence for and against the claim of entitlement to service connection for tinnitus is at least in equipoise. Accordingly, reasonable doubt must be resolved in favor of the Veteran, and entitlement to service connection for right ear hearing loss disability is warranted. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a right ear hearing loss disability is granted. REMAND The Board finds that additional development is required before the remaining claims on appeal are decided. Service Connection for Hypertension, a Heart Disability, and a Transient Ischemic Attack The Veteran is claiming service connection for hypertension, a heart disorder, and residuals of a transient ischemic attack, which he believes are due to his active duty service, to include as due to exposure to herbicide agents. The Veteran's service personnel records confirm he served in the Republic of Vietnam from April 1967 to April 1968; therefore, he is presumed to have been exposed to herbicide agents. The Veteran's diagnosed disabilities are not listed as disabilities which are presumptively associated with exposure to herbicide agent exposure. See 38 C.F.R. §§ 3.307, 3.309(e). However, while service connection on a presumptive basis is not warranted, the Veteran is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). No opinions have been obtained regarding whether any of the claimed disabilities are due to the Veteran's active duty service, to include as due to exposure to herbicide agents. The Board recognizes that the National Academy of Sciences (NAS) recently found there was "limited or suggested evidence of an association" between hypertension and exposure to Agent Orange (an herbicide agent), based on a statistical study. See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2012, 79 Fed. Reg. 20,308 (April 11, 2014); see also 38 U.S.C. § 1116(b)(2). The category "limited or suggestive evidence of an association" means that the "evidence suggests an association between exposure to herbicides and the outcome, but a firm conclusion is limited because chance, bias, and confounding could not be ruled out with confidence." Id. NAS's findings as to hypertension are sufficient to satisfy the "low threshold" of whether a current disability may be related to service to warrant an examination or opinion under McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Therefore, the Board finds an opinion regarding the etiology of the Veteran's hypertension must be obtained on remand. Additionally, ischemic heart disease is listed under VA regulation as a disorder which is presumptively associated with exposure to herbicide agents. Given that the Veteran's claims for a heart disorder and a transient ischemic attack involve cardiovascular symptoms and pathology, the Board finds medical opinions regarding the relationship between those disabilities and herbicide agents, if any, must also be obtained. Service Connection for a Right Knee Disability At his hearing before the Board, the Veteran testified that he injured his right knee while stationed in Germany in approximately 1966 when he stepped in a motor pool and hit his right knee. He stated he was told he had a "cracked knee cap" and that he walked on crutches for approximately six months after that incident. The Veteran has reported several times in the record that at the time he injured his knee, he was stationed at Nellingen Army barracks near Stuttgart, Germany, and that he was treated at a hospital there. STRs reflect that the Veteran was stationed at Nellingen from approximately November 1964 to February 1967. There is no indication in the record that VA has ever attempted to obtain those records. Accordingly, on remand, the RO must attempt to obtain records from all potentially applicable military hospitals in that vicinity. The RO must make as many requests as are necessary to obtain the named records until a response is received that the records do not exist or until it is determined that further attempts to obtain them would be futile. See 38 C.F.R. § 3.159 (c)(2). If the records are unable to be obtained, a Memorandum of Formal Finding of Unavailability must be prepared, which complies with the notice VA is required to provide to the Veteran and his representative as outlined in VA regulation. See 38 C.F.R. § 3.159(e). A copy of that memorandum must be associated with the Veteran's claims file, copies must be sent to the Veteran and his representative, and the Veteran and his representative must be given an adequate opportunity to respond. Increased Rating for Residuals of a Left Thumb Injury During service, the Veteran's left thumb became caught in a sprocket and he sustained a "crushing" injury, which resulted in almost complete severance of his left thumb. He stated he was transported by helicopter to a hospital in Seoul, South Korea and his left thumb was sutured back together. The Veteran's statements reflect that such events occurred at some time in 1969 or 1970. At a September 1973 VA examination, the Veteran reported that he experienced numbness in the last phalanx of his left thumb in cold weather. At his September 2010 VA examination, the Veteran indicated he experienced left hand numbness daily and on examination there was objective evidence of decreased sensation of the volar and dorsal surface of his hand. At his February 2016 hearing before the Board, the Veteran testified that he experienced constant loss of sensation since the in-service left thumb injury. Although an examination was recently performed in March 2017, this examination report did not consider whether the Veteran has any neurological disabilities associated with his left thumb disability. Moreover, there is no indication in the file that VA has ever attempted to obtain the record from the Veteran's hospitalization in Seoul, South Korea. These records are pertinent because VA is required by regulation to evaluate disabilities in relation to their history. See 38 C.F.R. § 4.1 (2017). Given the Veteran's account that his thumb was nearly severed and his complaints of neurological symptoms throughout the appeal, the Board finds a remand is required to attempt to obtain records from all potentially applicable military hospitals in Seoul, South Korea from 1969 to 1970 and to provide him an examination to determine if there are any neurological manifestations associated with his left thumb injury. Increased Rating for a Left Ear Hearing Loss Disability In the instant decision, the Board is granting service connection for a right ear hearing loss disability. The Veteran previously disagreed with the rating assigned for his left ear hearing loss disability, perfecting the appeal of that issue to the Board. While a contemporaneous examination is of record, because the Board is granting service connection for a hearing loss disability in the right ear, the Veteran is now service connected for hearing loss in both ears. A rating for hearing loss is considerably different when both ears are service-connected than when one ear is service-connected; therefore, the issue of a compensable rating for a bilateral hearing loss disability must be remanded so that the AOJ may consider this issue in the first instance. Additionally, current treatment records should be identified and obtained before a decision is made with regard to the remaining issues on appeal. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Adjudicate the claim for an initial compensable rating for bilateral hearing loss. 2. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 3. Attempt to obtain the Veteran's treatment records (inpatient and outpatient) for a right knee injury from the appropriate military hospital(s) located near Nellingen barracks and Stuttgart, Germany from November 1964 to February 1967. The RO must make as many requests as are necessary to obtain the named records until a response is received that the records do not exist or until it is determined that further attempts to obtain them would be futile. See 38 C.F.R. § 3.159(c)(2). If these records are unable to be obtained, a Memorandum of Formal Finding of Unavailability must be prepared, which complies with the notice VA is required to provide to the Veteran and his representative as outlined in VA regulation. See 38 C.F.R. § 3.159(e). A copy of that memorandum must be associated with the Veteran's claims file, copies must be sent to the Veteran and his representative, and the Veteran and his representative must be given an adequate opportunity to respond. 4. Attempt to obtain the Veteran's treatment records (inpatient and outpatient) for a left thumb injury from the appropriate military hospital(s) located in Seoul, South Korea from January 1969 to December 1970. The RO must make as many requests as are necessary to obtain the named records until a response is received that the records do not exist or until it is determined that further attempts to obtain them would be futile. See 38 C.F.R. § 3.159(c)(2). If these records are unable to be obtained, a Memorandum of Formal Finding of Unavailability must be prepared, which complies with the notice VA is required to provide to the Veteran and his representative as outlined in VA regulation. See 38 C.F.R. § 3.159(e). A copy of that memorandum must be associated with the Veteran's claims file, copies must be sent to the Veteran and his representative, and the Veteran and his representative must be given an adequate opportunity to respond. 5. Following completion of steps 2, 3, and 4, regardless of whether any additional records are received, afford the Veteran the appropriate VA examination(s) to determine the etiology of any diagnosed hypertension, heart disability, and transient ischemic attack. The claims file must be made available to, and reviewed by the examiner(s). Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner(s) should provide the following opinions: * Whether it is at least as likely as not (50 percent probability or higher) that any diagnosed heart disability had its onset during the Veteran's active service, or it otherwise etiologically related to such service, to include the Veteran's exposure to herbicide agents. * Whether it is at least as likely as not (50 percent probability or higher) that any diagnosed hypertension had its onset during the Veteran's active service, or it otherwise etiologically related to such service, to include the Veteran's exposure to herbicide agents. * Whether it is at least as likely as not (50 percent probability or higher) that any diagnosed transient ischemic attack (or residuals thereof) had its onset during the Veteran's active service, or it otherwise etiologically related to such service, to include the Veteran's exposure to herbicide agents. The examiner(s) is informed that he or she may not base any opinion on the sole fact that a disability is not one which is found to be presumptively related to exposure to herbicide agents under 38 C.F.R. § 3.309(e). A complete rationale for all opinions must be provided. If the examiner(s) is unable to provide any opinion without resorting to speculation, he or she must provide an explanation for that finding. 6. Following completion of step 3, IF AND ONLY IF, the identified medical records are received, return the case to the VA examiner who performed the April 2017 knee examination for an addendum opinion. The claims file must be made available to, and reviewed by the examiner. After a review of the evidence of record, to include consideration of the newly received records, as well as the Veteran's lay statements, the VA examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any current right knee disability had its onset during active service, or is otherwise etiologically related to such service. A complete rationale for all opinions must be provided. If the medical professional is unable to provide any opinion without resorting to speculation, he or she must provide an explanation for that finding. If the April 2017 VA examiner is unavailable, the claims file should be forwarded to an examiner with appropriate expertise to provide the requested opinions. Another VA examination of the Veteran's right knee should only be performed if determined necessary by the examiner providing the requested opinions. 7. Following completion of steps 2, 3, and 4, regardless of whether any additional records are received, afford the Veteran the appropriate VA examination(s) to determine whether his residuals of a left thumb disability, to specifically include any neurological impairment associated with the disability. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. The examiner should provide all information required for rating purposes, to include a discussion of the presence and extent of any neurological impairment of the left thumb. 8. Confirm that the VA examination reports and medical opinions provided comport with this remand and undertake any other development determined to be warranted. 9. Then, readjudicate the remaining claims on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. 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). 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). ______________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs