Citation Nr: 21029996 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 20-03 824 DATE: May 17, 2021 ORDER Service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection for vasomotor rhinitis is remanded. FINDING OF FACT Resolving all doubt in favor of the Veteran, he was exposed to acoustic trauma during active service, and has experienced symptoms of bilateral hearing loss continuously since separation from service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1133, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1965 to February 1977 and has additional service in the Army Reserves. He is in receipt of the Combat Infantryman Badge (CIB) and the Bronze Star Medal with "V" device for valor. Entitlement to service connection for bilateral hearing loss. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). 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 for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Alternatively, continuity of symptomatology may be established if a claimant can demonstrate: (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology under 38 C.F.R. § 3.303 (b); Barr v. Nicholson, 21 Vet. App. 303 (2007). W here a claimant asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, he can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309 (a), including neurological disorders such as hearing loss. Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). Such chronic diseases are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1110, 1112, 1131, 1133; 38 C.F.R. §§ 3.307, 3.309(a). 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 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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. The threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a claimant is competent to report on that of which he or she has personal knowledge). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). At the time of his January 2016 claim of entitlement to service connection for bilateral hearing loss, the Veteran submitted a statement asserting that he had significant loss of hearing during service, from July 1965 to August 1968, from noise exposure from firing infantry-type weapons in training and during combat and from flying helicopters. He reported that his hearing loss was noted at the time of his separation from service in February 1977 and he denied post-service occupational or recreational hearing loss. The Veteran's service separation form, his DD-214, indicates that his military occupational specialty (MOS) was finance and accounting officer, however, such also indicates that he is in receipt of the CIB and the Bronze Star Medal with "V" device for valor. His service personnel records refer to his work as an Army aviator with flying hours in helicopters from June 1969 to June 1972, and additional service personnel records refer to his participation in Phases II and III of a Counteroffensive in the Republic of Vietnam in the summer and fall of 1969 and a Sanctuary Counteroffensive in the Republic of Vietnam in the winter and spring of 1970. The Veteran is competent to report his in-service experiences with noise from infantry-type weapons and helicopters and there is no evidence that he is not credible in this regard. Layno, 6 Vet. App. 465, 470. His statements are bolstered by his service personnel records showing combat service in the Republic of Vietnam and the Board thus concedes that the Veteran experienced acoustic trauma in service as a result of his military duties. The Veteran's service separation examination, dated in February 1977, indicates that he presented with pure tone thresholds, in decibels, in the right ear, of 10, 5, 5, 5, 0, 15, 20, 45, and 10, 0, 10, 5, 5, 10, 15, 25, in the left ear, each measured at 250, 500, 1000, 2000, 3000, 4000, 6000, and 8000 Hz, respectively; the examiner reported that the Veteran had possible hearing loss from four years of flying helicopters. During Reserve service, an April 1985 Report of Medical Examination indicates that he presented with high-frequency hearing loss, and demonstrated pure tone thresholds, in decibels, in the right ear, of 10, 10, 10, 10, 20, 25, and 10, 10, 10, 10, 30, 30, in the left ear, each measured at 250, 500, 1000, 2000, 3000, 4000, 6000, and 8000 Hz, respectively. In an May 2016 Disability Benefits Questionnaire (DBQ), the Veteran demonstrated pure tone thresholds, in decibels, in the right ear of 30, 35, 40, 55, 70, measured, and 25, 30, 50, 55, 70 in the left ear, each at 500, 1000, 2000, 3000, and 4000 Hz, respectively. There is evidence of an auditory threshold of 40 decibels or greater in at least one of the specified frequencies, and the Veteran's bilateral hearing loss thus meets the VA requirements for consideration as a disability. 38 C.F.R. § 3.385. The examiner opined that it was less likely than not that the Veteran's bilateral hearing loss was related to his in-service noise exposure on the basis, in pertinent part, that he demonstrated normal hearing in the left ear and normal hearing in the right ear, save for a 45 decibel loss at 8000 Hz and that noise-induced hearing loss does not present with a delay from the time of onset and the Veteran reported not noticing his hearing loss until 2000, fourteen years after separation from service. The Veteran is competent to report the sensation of decreased hearing acuity during and since service and there is not sufficient evidence of record upon which the Board may find him not credible in this regard. Layno, 6 Vet. App. 465, 470. The VA examiner, in considering whether the Veteran's bilateral hearing loss is etiologically related to service, appears not to have considered his bilateral hearing loss, pursuant to Hensley, at the time of his separation from service in February 1977, his bilateral hearing loss noted in April 1985, and his January 2016 lay statement as to the onset of hearing loss during service. The VA opinion is thus of little probative value. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Based on the forgoing, there is probative evidence of current bilateral hearing loss that comports with VA standards to be considered a disability under 38 C.F.R. § 3.385, probative evidence of in-service acoustic trauma, and resolving all doubt in favor of the Veteran, probative evidence of continued bilateral hearing loss symptoms from the time of separation from service to the present. 38 U.S.C. §§ 1110, 1112, 1131, 1133; 38 C.F.R. §§ 3.307, 3.309, 3.385; Walker, 708 F.3d 1331, at 1337-39. The Board thus finds that service connection for bilateral hearing loss is warranted. REASONS FOR REMAND Entitlement to service connection for vasomotor rhinitis is remanded. At the time of his January 2016 claim of entitlement to service connection for bilateral hearing loss, the Veteran asserted that his vasomotor rhinitis was due to his in-service exposure to herbicides in the Republic of Vietnam. He submitted a statement at that time asserting that he developed vasomotor rhinitis during service due to constant heat and damp weather in the Republic of Vietnam; he reported that heavy mucous was noted at the time of his separation from service in February 1977 and in August 1985, during Reserve service, he had rhinitis and post-nasal drip, with continued sinus draining not diagnosed as vasomotor rhinitis until the early 1990s. In his January 2020 Substantive Appeal, the Veteran asserted that one of the conditions that causes vasomotor rhinitis is changes in weather, and at times, during service in the Republic of Vietnam, it was humid and scorching and other times, in the highlands, it was much cooler, thus exposing him to extreme temperature changes. He reported that he had suffered from these conditions for many years without treatment because he was told that he just had to live with it and finally saw an allergist much later and was diagnosed with vasomotor rhinitis. While the Veteran's service separation examination, his Report of Medical Examination, dated in February 1977 is of record, his Report of Medical History is not; it does not appear that there are any outstanding service treatment records. His service treatment records dated in August 1985, during Reserve service, indicate that he sought treatment for the gradual onset of blocked nasal passages. The provisional diagnosis was adenoids versus polyposis. Rhinitis and post-nasal drip were noted, he was diagnosed with nasal septal deviation. Report of Medical Examination dated at that time indicates that the examiner reported moderate mucous related to the Veteran's serology, his white blood count. Private treatment records dated in July 2008 indicate that the Veteran was diagnosed with rhinitis. Private computed tomography (CT) in December 2011 revealed chronic maxillary sinusitis. To date, the Veteran has not been afforded a VA examination to determine the etiology of his disability claimed as vasomotor rhinitis. On remand, the Department of Veterans Affairs (VA) Regional Office (RO) should afford the Veteran a VA examination and obtain an adequate etiological opinion. The Veteran, in his January 2016 statement, asserted that he was diagnosed with vasomotor rhinitis in the 1990s. The earliest relevant private treatment records associated with the claims appears to be dated in 2008. On remand, the RO should request that the Veteran identify any outstanding relevant private treatment records, specifically, those reflecting treatment for his symptoms in the 1990s. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142, Authorization and Consent to Release Information to VA, for any outstanding relevant private treatment records, specifically, those reflecting treatment for his rhinitis/sinusitis symptoms in the 1990s. Make two requests for the authorized records from any identified and authorized private treatment provider unless it is clear after the first request that a second request would be futile. 2. Then, schedule the Veteran for a VA examination for his disability claimed as vasomotor rhinitis. The examiner must review the claims file and provide a response with complete rationale to the following: Is it at least as likely as not (at least 50 percent probability) that the Veteran's disability claimed as vasomotor rhinitis, and including, but not limited to allergic rhinitis and chronic maxillary sinusitis, is/are related to service, including: (1) conceded in-service exposure to herbicides in the Republic of Vietnam: (2) extreme temperature changes during service in the Republic of Vietnam; and (3) moderate mucous shown related to the Veteran's white blood count in April 1985 during Reserve service, with gradual onset of blocked nasal passages with rhinitis and post-nasal drip, provisionally diagnosed as adenoids versus polyposis and finally diagnosed as nasal septal deviation. In this regard, the examiner should consider and discuss the Veteran's lay statements; he does not assert that his disability began during any period of Reserve service, but that such had its onset during active service in the Republic of Vietnam related to exposure to herbicides and extreme temperate change. The Veteran has reported in-service and post-service symptoms including mucous, post-nasal drip, and snoring, continuing from service to the present. In providing the requested opinion, consider the Veteran's description of his in-service exposures and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported exposures and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Department of Veterans Affairs 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.