Citation Nr: 1807863	
Decision Date: 02/07/18    Archive Date: 02/20/18

DOCKET NO.  15-20 726	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1. Entitlement to service connection for bilateral sensorineural hearing loss.

2. Entitlement to service connection for residuals of a fractured right foot.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

L. Connor, Counsel





INTRODUCTION

The Veteran served on active duty from February 1945 to November 1946.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.

The issue of entitlement to service connection for a lung disorder has been raised by the record in the August 2013 Notice of Disagreement, wherein the Veteran reported he was using oxygen at night, 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).  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

The issue of entitlement to service connection for residuals of a right foot fracture is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.


FINDING OF FACT

It is as likely as not that the Veteran's diagnosed bilateral sensorineural hearing loss had its onset in service.


CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).




REASONS AND BASES FOR FINDING AND CONCLUSION

VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 3.326(a) (2017).  The Veteran's claim for service connection bilateral hearing loss is being granted herein.  Accordingly, any error related to VA's duty to notify and assist is moot.  38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); Mayfield v. Nicholson, 19 Vet. App. 103, (2005).

Service connection may be established for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303.  Generally, to establish service connection, the evidence must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the current disability and the in-service disease or injury (or in-service aggravation).  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Certain chronic diseases, such as sensorineural hearing loss, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C. §§ 1112, 1113 (2012); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017).

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a).  Sensorineural hearing loss is a qualifying chronic disease.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  As a result, service connection via the demonstration of continuity of symptomatology for this disease is applicable in the present case.


A May 2013 VA examination diagnosed bilateral sensorineural hearing loss meeting the threshold requirements for hearing loss under 38 C.F.R. § 3.385.  The requirements of Shedden element (1) have been met.

The Veteran attributes his current hearing loss to in-service exposure to noise from rifle fire during basic training.  His Certificate of Release or Discharge (VA Form DD-214) reflects that he qualified as a marksman rifle.  He also indicated that he helped load 105 howitzers and there was loud artillery around him without the benefit of hearing protection.  As such is consistent with the circumstances of the Veteran's service, the Board concedes in-service noise exposure and the requirements of Shedden element (2) have been met.  

The Veteran states that he has had hearing loss since service.  The Board finds the Veteran's reports of continuity of hearing loss to be both competent and credible sufficient to satisfy Shedden element (3).  The May 2013 VA examiner opined that he was unable to provide a medical opinion regarding the etiology of the Veteran's hearing loss without resorting to speculation.  The examiner explained that the Veteran's separation physical only noted use of a whispered voice test which would "likely miss a unilateral or high frequency hearing loss."  Frequency specific audiometric data is needed to determine if the Veteran's hearing changed while in the military but such a test was not available in 1945.  The Veteran reported noise exposure to rifles during service and limited to no exposure to loud noise after service as a poultry farmer.  No hearing protection was available during the Veteran's service.  The examiner further indicated that loud noise can cause high frequency hearing loss which is consistent with the results of the Veteran's hearing test.  

Based on the VA examiner's opinion taken together with the circumstances of the Veteran's service and his reports of increasing hearing loss since service, the totality of the evidence supports the finding that it is at least as likely as not that the onset of the Veteran's current hearing loss disability occurred during service.  Resolving all reasonable doubt in favor of the Veteran, service connection for bilateral hearing loss is granted.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102.  


ORDER

Entitlement to service connection for bilateral sensorineural hearing loss is granted.


REMAND

The Veteran claims that he fractured his right foot during boot camp and that he has had increasing right foot pain since that time.  He stated that he has arthritis in his right foot related to the in-service injury.  The Veteran also submitted a from B.M., who indicated that the Veteran walks with a limp.  

The Veteran's service treatment records are missing and were likely lost during a fire at the National Personnel Records Center.  There is also no recent VA or private treatment records related to the Veteran's claimed right foot disability.  He does not argue the contrary.  Rather, he indicated that he has experienced a limp since injuring his foot inservice and that he has been self-treating the condition.  

In any event, as there is some evidence suggesting the present of a current disability of the right foot as a result of an injury in service, and because VA has a heightened duty to assist him in developing his claim due to his missing service treatment records, an examination should be performed and an opinion should be obtained regarding the etiology of any right foot disabilities.  See O'Hare v. Derwinski, 1 Vet. App. 365 (1991); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).      


	(CONTINUED ON NEXT PAGE)



Accordingly, the case is REMANDED for the following action:

(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. After contacting the Veteran and obtaining any necessary releases, obtain all outstanding VA and private treatment records related to the Veteran's right foot claim.

2. Then, schedule the Veteran for an examination to address the nature and etiology of any diagnosed right foot disabilities.  The claims file, including a copy of this remand, should be reviewed by the examiner.  The examiner should respond to the following:

(a) Identify/diagnose all disabilities of the right foot during the appeal period.  

(b) For each identified disability of the right foot, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the disorder(s) were incurred during or caused by service.  The examiner is asked to address the Veteran's contentions that he fractured his right foot during a 21-mile march while in boot camp.

The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion.  The absence of service treatment records documenting an in-service should not be viewed as disfavorable.

A clear explanation for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why.

3. After completion of the above, readjudicate the claim on appeal.  If the benefit sought remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration.

The appellant 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.A. §§ 5109B, 7112 (West 2014).



______________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs