Citation Nr: A21020648 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 190925-33561 DATE: December 29, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a respiratory condition is remanded. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, his bilateral hearing loss began during service and has continued since his separation from service and is not attributable to intercurrent causes. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1111, 1112, 1113, 1131, 1137, 5107, 38 C.F.R. §§ 3.102, 3.303(a)-(c), 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from August 1982 to June 1986. These matters come before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decision dated in September 2019. The Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA), was signed into law on August 23, 2017. This law created a new framework for veterans dissatisfied with VA's decision on their claim to seek review. The Veteran, in response to the September 2019 rating decision, submitted a VA Form 10182 (Decision Review Request: Board Appeal (Notice of Disagreement)) on September 25, 2019. The Veteran, through the VA Form 10182, requested a hearing with a Veterans Law Judge. By choosing this appeals lane, evidence submitted to VA that was not before the AOJ in September 2019 will not be considered in making this decision. The Veteran acknowledged his understanding of this by signing VA Form 10182. Evidence was added to the claims file during a period of time when new evidence was not allowed. See August 2021 Correspondence. Therefore, the Board may not consider this evidence. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Service Connection 1. Entitlement to service connection for bilateral hearing loss Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted based on chronicity or continuity of symptomatology for a disability which is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a), including sensorineural hearing loss. See 38 C.F.R. § 3.303(b). The Board has carefully reviewed the evidence of record and finds that the Veteran's symptoms of bilateral hearing loss have been chronic and continuous since discharge and were not attributable to intercurrent causes. Thus, resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for bilateral hearing loss are met. The Board acknowledges the testimony of the Veteran in support of his claim, and notes that lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. The Veteran is certainly capable of describing any symptoms of hearing loss that he has experienced during and after service, and his reports in this regard are considered credible lay evidence of symptomatology. Further, the Board notes that sensorineural hearing loss claims may be supported by evidence of a continuity of symptomatology or on a presumptive basis. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran asserts he has experienced hearing loss during his time in service, which continued after separation from service. In August 2021, the Veteran testified that he was exposed to hazardous noises from shooting cannons as an assistant gunner without any hearing protection and noticed some hearing loss during service in Korea. The Veteran testified that following service, he operated heavy machinery, and was administered pre-employment tests, which showed some hearing loss prior to employment. He reported that during his post-service employment he wore hearing protection, and was never told of any changes to his hearing. See also March 2019 Fully Developed Claim. The Veteran essentially contends that his bilateral hearing loss has been "chronic and continuous since discharge." These lay statements are considered competent evidence when describing the features or symptoms of an injury or illness within the realm of personal and observable knowledge. There are certain situations in which lay evidence may suffice to prove service connection on its own merits, even in the absence of evidence in the service treatment records. Buchanan, supra. The Board finds that the statements of the Veteran are competent and credible and support a finding that the Veteran began experiencing hearing loss in service, and that his symptoms continued when the Veteran returned home from service. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385; see also McKinney v. McDonald, 28 Vet. App. 15 (2016) (holding that a minimum degree of hearing loss is a prerequisite for entitlement to service connection, and that a change in hearing as a result of service is a disability if it exceeds the levels specified in 38 C.F.R. § 3.385). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting regulatory requirements for hearing loss disability for VA compensation purposes (i.e., under 38 C.F.R. § 3.385), and a medically sound basis upon which to attribute the post-service findings to the injury in service, as opposed to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155 (1993). To establish entitlement to service connection, it is not required that a hearing loss disability by these standards of 38 C.F.R. § 3.385 be demonstrated during service, including at time of separation, although a hearing loss disability by these standards must be currently present, and service connection is possible if this current hearing loss disability can be adequately linked to service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley, supra (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)) The Veteran was afforded a VA examination in July 2019, which reflects a current diagnosis of bilateral sensorineural hearing loss and revealed right ear decibel thresholds of 10, 10, 5, 40, and 50 dB and left ear decibel thresholds of 15, 15, 15, 40 and 35 dB at frequencies of 500, 1000, 2000, 3000, and 4000 Hertz. The Board concedes that the Veteran was exposed to hazardous noise during service. Consideration shall be given to the places, types, and circumstances of a veteran's service as shown by the veteran's service record, the official history of each organization in which the veteran served, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a). The Veteran's DD-214 notes that the Veteran's military occupational specialty (MOS) was as a cannon crewman. The Veteran's MOS has been shown to have a "highly probable" or "moderate" probability of exposure to hazardous noise. Therefore, the Board concedes that the Veteran was exposed to hazardous noise. A February 1982 examination report for enlistment revealed that the Veteran had a normal clinical evaluation of his ears; and the Veteran was afforded an audiological evaluation, at which time auditory thresholds were recorded. The February 1982 examination report for enlistment revealed right ear decibel thresholds of 0, 0, 0, 0, and 0 dB and left ear decibel thresholds of 15, 5, 0, 0 and 0 dB at frequencies of 500, 1000, 2000, 3000, and 4000 Hertz. A March 1983 audiogram revealed right ear decibel thresholds of 10, 0, 0, 0, and 0 dB and left ear decibel thresholds of 10, 0, 0, 0, and 0 dB at frequencies of 500, 1000, 2000, 3000, and 4000 Hertz. The examiner noted that the Veteran did not have a significant threshold shift as compared to the February 1982 audiogram. A May 1986 examination report for separation revealed that the Veteran had a normal clinical evaluation of his ears; and the Veteran was afforded an audiological evaluation, at which time auditory thresholds were recorded. The May 1986 examination report for enlistment revealed right ear decibel thresholds of 10, 5, 0, 0, and 10 dB and left ear decibel thresholds of 0, 0, 0, 0 and 5 dB at frequencies of 500, 1000, 2000, 3000, and 4000 Hertz. Resolving all reasonable doubt in favor of the Veteran, and with consideration of the objective medical evidence as well as the subjective lay evidence, the Board finds that there is a nexus between the Veteran's current bilateral hearing loss and service. The July 2019 VA examiner opined that it was less likely than not that the Veteran's bilateral hearing loss was caused by or a result of an event in military service. The examiner noted that although the Veteran's MOS of cannon crewmember had a high probability for hazardous noise exposure, his enlistment and separation audiograms from 1982 and 1986 revealed that the Veteran's hearing thresholds were within normal limits. The examiner noted that there was not a significant shift in hearing thresholds during service. The Veteran reported that he had been around artillery noise during service, and that currently he had trouble hearing soft sounds and his wife. The Board notes that although the July 2019 VA examiner opined that it was less likely than not that the Veteran's bilateral hearing loss was caused by or a result of an event in military service, the Board finds that the testimony and statements of the Veteran are competent and credible and support a finding that the Veteran had ongoing hearing loss during service and following service. Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006); Layno v. Brown, 6 Vet. App. 465, 469 (1994). In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. Resolving all reasonable doubt in favor of the Veteran and based on the medical and lay evidence of record, the Board finds that the evidence of record supports a finding that service connection for bilateral hearing loss is warranted. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Duty to Assist Error Under the AMA, if the Board of Veterans' Appeals (Board) identifies a duty to assist error that existed at the time of the AOJ's decision on the claim under review, the claim must be returned for correction of the error and readjudication. 38 C.F.R. § 3.2601(g). 1. Entitlement to service connection for a right knee disability is remanded. The Veteran seeks service connection for a right knee disability, which he asserts is related to service. In August 2021, the Veteran testified that he injured his right knee when he had jumped out of a truck during service in Korea; and he treated his condition with over the counter (OTC) medication and an immobilizing wrap. The Veteran testified that he sought treatment when he was stationed in Fort Bragg, North Carolina after he began experiencing difficulty with physical training (PT). In addition, the Veteran testified that he probably jumped from aircraft a couple of hundred times, which included the 50 jumps were listed in his jump log, and he also did another 100 "fun" jumps. See March 2019 Fully Developed Claim. Medical history and examination report for enlistment reflects normal clinical evaluation of the lower extremities, and the Veteran did not report any right knee condition. See February 1982 service treatment record. A February 1983 service treatment record reflects that the Veteran injured his right thigh approximately 7 days prior and fell on the same side injuring his hip approximately 5 days after the right thigh injury. The treatment provider noted that the Veteran had pain that started at his pelvis joint and traveled down his right leg with sharp pain. The Veteran was placed on a profile for five days with no running, jumping or marching. Medical history and examination report for separation reflects normal clinical evaluation of the lower extremities, and the Veteran did not report any right knee condition. See May 1986 service treatment record. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claims. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The requirement that the evidence "indicates" that the Veteran's disability "may" be associated with his service is a low threshold. Id. Thus, in light of the Veteran's contentions and the record on appeal, a VA examination should be obtained to determine the probable etiology of the Veteran's right knee disability, to include whether the Veteran's right knee disability is related to service. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i); McLendon, supra. As the Board has identified a duty to assist error that occurred prior to the September 2019 rating decision on appeal, specifically that the AOJ did not provide the Veteran with an examination to determine the probable etiology of the Veteran's right knee disability, the issue must be remanded. 2. Entitlement to service connection for a respiratory condition is remanded. The Veteran seeks service connection for a collapsed lung with shortness of breath, pulmonary lung function injury, and surgical scarring. In August 2021, the Veteran testified that during service he injured his chest and lungs when he jumped from an airplane and landed on large artillery. The Veteran testified that due to pneumonia; approximately five to six months after separation of service he had a lung collapse, which was repaired, and approximately three months later he had another lung collapsed which was repaired. The Veteran testified that his treatment provider noted that the Veteran had some weakness due to a traumatic fall. The Veteran testified that he had a scar, which ran up his back, and he had 22 stainless steel staples in his lung from when they pinned his lung to his chest cavity. The Veteran testified that as a result of his lung condition, he was unable to do the things he used to do before, when he had two healthy lungs. See also March 2019 Fully Developed Claim. The Veterans DD-214 reflects that the Veteran was a recipient of a parachutist badge during service. In light of the Veteran's contentions and the record on appeal, a VA examination should be obtained to determine the probable etiology of the Veteran's respiratory condition, to include whether the Veteran's respiratory condition is related to service or to service-connected disabilities. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i); McLendon, supra. As the Board has identified a duty to assist error that occurred prior to the September 2019 rating decision on appeal, specifically that the AOJ did not provide the Veteran with a VA examination to determine the probable etiology of his respiratory condition, the issue must be remanded. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of the Veteran's right knee disability. All indicated tests and studies should be accomplished and the finding reported in detail. The record must be made available to the examiner for review, including a copy of this Remand, and the examiner should indicate that the record was reviewed in connection with the examination. Based upon a review of the record, the examiner should address whether it is at least as likely as not (50 percent or greater likelihood) that any current right knee disability manifested during service, that arthritis was manifest to a compensable degree within one year of service, or that it is otherwise causally or etiologically related to a period of active-duty service. In rendering the opinions, the examiner must consider and discuss the statements of the Veteran regarding the onset and continuity of the symptoms of his right knee disability, including the Veteran's testimony that he injured his right knee when jumping from a truck in service. See August 2021 Hearing Transcript. The examiner must consider and discuss the February 1983 service treatment record which reflects that the Veteran sustained an injury to his right lower extremity in service. The examiner should provide a complete rationale for all opinions expressed and conclusions reached, including a discussion of the facts and medical principles involved. 2. Schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of the Veteran's respiratory condition with surgical scarring. All indicated tests and studies should be accomplished and the finding reported in detail. The record must be made available to the examiner for review, including a copy of this Remand, and the examiner should indicate that the record was reviewed in connection with the examination. Based upon a review of the record, the examiner should address whether it is at least as likely as not (50 percent or greater likelihood) that any current respiratory condition manifested during service, or that it is otherwise causally or etiologically related to a period of active-duty service. In rendering the opinions, the examiner must consider and discuss the statements of the Veteran regarding the onset and continuity of the symptoms of his respiratory condition, including the Veteran's testimony that he injured his lungs in service when he fell on artillery and underwent treatment for a collapsed lung within 6 months of his separation from service. See August 2021 Hearing Transcript. The examiner should provide a complete rationale for all opinions expressed and conclusions reached, including a discussion of the facts and medical principles involved. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Johnson The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.