Citation Nr: 21028356 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 19-23 772 DATE: May 11, 2021 ORDER Service connection for bilateral hearing loss is granted. REMANDED The issue of service connection for inclusion body myositis (IBM), to include as due to trichloroethylene (TCE) exposure, is remanded. FINDING OF FACT Resolving any doubt in the Veteran's favor, bilateral hearing loss was caused by in-service noise exposure. CONCLUSION OF LAW The criteria to establish service connection for bilateral hearing loss have been approximated. 38 U.S.C. §§ 1110, 1154; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.326(a), 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Air Force from July 1964 to July 1968. Service Connection Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. § 1110. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (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 evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, service connection may also be established under 38 C.F.R. § 3.303(b) if a chronic disease is shown in service, and subsequent manifestations of the same chronic disease at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Service connection may also be established based upon a legal presumption by showing that a disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. § 1101; 38 C.F.R. §§ 3.307, 3.309(a). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabriel v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Further, competency of evidence differs from the weight and credibility of evidence. Competency is a legal concept that determines whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination regarding the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). With regard to the competency of lay evidence, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms, as symptoms require only personal knowledge of what is observed using his senses, not medical expertise. See Layno, 6 Vet. App. At 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr, 21 Vet. App. at 307 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. See Jandreau, 492 F.3d at 1377. VA is responsible for determining whether the evidence supports the claim, with the veteran prevailing, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Service connection for bilateral hearing loss is granted. The Veteran contends that his bilateral hearing loss is related to his active service, to include in-service noise exposure without adequate ear protection. The Board will grant the claim. The Veteran served as an automatic flight control systems specialist on active duty. Noise exposure is consistent with the places, types, and circumstances of the Veteran's service as an automatic flight control systems specialist. The Veteran's in-service noise exposure is presumed. See 38 U.S.C. § 1154(a). An August 2013 VA treatment record indicates that the Veteran has hearing loss. A March 2018 VA treatment record indicates mild bilateral hearing loss through 1000Hz and moderately severe to severe bilateral sensorineural hearing loss from 2000Hz through 8000Hz. A July 1967 service treatment record (STR) notes that an audiogram revealed hearing loss in left ear. In the May 1968 report of medical history at separation, the Veteran endorsed having hearing loss. The May 1968 report of medical examination at separation indicates that a clinical evaluation of the ears was normal. While the examiner noted that the Veteran reported bilateral hearing loss for approximately one year; the examiner reported that hearing loss was not displayed on examination. The Veteran was afforded a VA examination in April 2018. The examiner indicated that an in-person examination was conducted and that a review of the Veteran's VA e-folder was completed. The examiner noted that the Veteran reported difficulty with conversation on the telephone. The examiner noted that pure tone thresholds in decibels could not be tested, and that the examination results are inconsistent and not valid for rating purposes. Speech discrimination scores were noted as 92 percent in the right ear and 88 percent in the left ear. However, the examiner stated that the use of the speech discrimination score is not appropriate for the Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that make combined use of pure tone average and speech discrimination scores inappropriate. The examiner noted significant changes in hearing thresholds in-service bilaterally. However, the examiner stated that an etiological opinion was not able to be provided without resorting to speculation because the current examination results are inconsistent and not valid for rating purposes. The Veteran submitted a March 2021 private medical evaluation. The examiner noted that the Veteran reported in-service noise exposure. After a recitation of available medical literature, and review of medical history and lay statements, the examiner opined that it is more likely than not that significant and permanent damage in the Veteran's inner ear occurred because of his service. Therefore, the examiner opined that the Veteran's bilateral hearing loss is more likely than not related to his in-service exposure to high intensity noise without appropriate hearing protection. The examiner also noted that the Veteran reported bilateral hearing loss since service and an audiometry performed while in-service showed hearing impairment. The evidence is at least in equipoise as to whether the Veteran's current bilateral hearing loss is related to service. Accordingly, after resolving all doubt in favor of the Veteran, service connection for bilateral hearing loss is warranted and, the claim is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND The issue of entitlement to service connection for IBM, to include as due to TCE exposure, is remanded. The matter is REMANDED for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR: The Veteran contends that his IBM was caused by in-service exposure to trichloroethylene (TCE), which he reported was used to clean electronic auto-pilot parts as part of his duties as an automatic flight control systems specialist. The Veteran submitted a March 2021 private medical evaluation, where the examiner noted a diagnosis of IBM. After a review of the medical literature related to exposure to TCE and IBM, the examiner opined that the Veteran's IBM is at least as likely as not a result of his unprotected in-service exposure to TCE, as the substance is capable to induce immune system impairment leading to autoimmunity, which is the main pathologic feature of IBM. The record does not reflect that any attempt was made to verify the Veteran's reported in-service exposure to TCE. Therefore, a remand is necessary to attempt to verify the Veteran's claimed in-service exposure to TCE. Therefore, the issue of service connection for IBM, to include as due to TCE exposure, is remanded for further development. The remand directives follow. 2. Attempt to verify through official sources, including the National Archives and Records Administration, whether TCE was used by the following: 3430 Student Squadron, Lowry Air Force Base, Colorado, from August 19, 1964 to January 28, 1965; 408th Combat Support Squadron, Kingsley Field, Oregon, from January 29, 1965 to February 1, 1966; and 408th Consolidated Aircraft Maintenance Squadron, Kingsley Field, Oregon, from February 2, 1966 to June 4, 1968. All attempts to obtain this evidence must be documented in the claims file. 3. After undertaking the development above and any additional development deemed necessary, the claim for service connection for IBM should be readjudicated. If the benefit sought on appeal remains denied, the Veteran should be furnished a supplemental statement of the case and provided an appropriate period to respond before the case is returned to the Board. The Veteran 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. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Timothy T. Emmart 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.