Citation Nr: 21032599 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 08-39 339 DATE: May 27, 2021 ORDER Service connection for bilateral hearing loss is granted. Service connection for residuals of burns is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his bilateral hearing loss developed due to in-service noise exposure. 2. The preponderance of the evidence of record is against finding that the Veteran has had a residual disability due to his in-service burns at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for the residuals of burns are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1967 to July 1969. This case is before the Board of Veterans' Appeals (Board) on appeal from October 2007 and February 2012 rating decisions from a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ) who is no longer at the Board. The transcript of the hearing has been associated with the record. In March 2021, the Veteran was notified that the VLJ who conducted his hearing is no longer at the Board and asked to respond within 30 days, indicating whether he would like a new hearing. VA has received no response; thus, the Board will proceed with adjudicating the Veteran's claims. In a May 2019 decision, the Board denied the claim of service connection for bilateral hearing loss and remanded service connection for residuals of burns for a VA examination. As the requested development regarding the claim for service connection for residuals of burns has been completed, no further action is required to ensure compliance with the remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran appealed the denial of service connection for bilateral hearing loss to the United States Court of Appeals for Veterans Claims (Court), which vacated the Board's May 2019 decision as it pertained to the denial in a July 2020 Order. In an accompanying Joint Motion for Remand (JMR), the parties agreed that the Board failed to provide an adequate statement of reasons or bases for its findings and did not make a reasonable effort are made to obtain the private records. Specifically, the parties agreed that the Board erred regarding its discussion and reliance on the February 2012 VA opinion, which relied on the lack of significant in-service hearing change for the negative opinion despite the holding in Hensley v. Brown which "states that section 3.385 does not preclude an award of service connection for a hearing disability established by post-service audiometric and speech-recognition scores, even though hearing was found to be within normal limits on audiometric and speech-recognition testing at the time of separation from service." 5 Vet. App. 155, 159 (1993). Service Connection Service connection will be granted for a current disability that resulted from an injury, disease, or aggravation while in active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires (1) a present disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the present disability and the in-service incurrence or aggravation of a disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328, 1333 (1997); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The current disability requirement is satisfied when a claimant "has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim," McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), or "when the record contains a recent diagnosis of disability prior to... filing a claim for benefits based on that disability," Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). The Veteran is competent to report symptoms and experiences he can observe. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102. 1. Bilateral hearing loss. The record demonstrates that the criteria for service connection for bilateral hearing loss are met. In a claim of service connection for impaired hearing, demonstration of the existence of a current disability is subject to the additional requirements of 38 C.F.R. § 3.385, which provides that service connection for impaired hearing shall not be established until the hearing loss meets pure tone or speech recognition criteria. Under this regulation, hearing status will be considered a disability for the purposes of service connection when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland Consonant-Vowel-Nucleus-Consonant (CNC) Test are less than 94 percent. 38 C.F.R. § 3.385. A February 2012 VA examination demonstrates that the requisites for hearing loss for VA purposes are met in both ears. See 38 C.F.R. § 3.385. The Board, accordingly, finds competent evidence of the current disorder of bilateral hearing loss. The Veteran contends that he experienced in-service noise exposure due to constant exposure to loud artillery noise. The AOJ conceded in-service noise exposure based on the Veteran's military occupational specialty (MOS) in Field Artillery Crewman. The February 2012 VA examiner determined it was less likely than not that the Veteran's hearing loss was due to in-service noise exposure. In support of this conclusion, she noted that the separation examination documented hearing within normal limits and without significant threshold shift at any frequency in either ear. In a December 2018 medical opinion, physician R.B. confirmed the Veteran's diagnosis, under 38 C.F.R. § 3.385, of bilateral sensorineural hearing loss. He recounted the Veteran's reported in-service noise exposure and determined that it was at least as likely as not that the Veteran's hearing loss was due to his military service. He explained that the Veteran's exposure to tanks, artillery, and explosion noises while serving in Vietnam was more likely than not the cause of his bilateral hearing loss. The March 2021 VA examiner opined that the Veteran's bilateral hearing loss was not at least as likely as not caused by or a result of service. She provided the rationale that although the Veteran's MOS had a high probability of noise exposure, no complaint or report of hearing loss could be located in the Veteran's claims file during military service or within a reasonable time frame following service, and the separation examination showed normal hearing acuity with no significant threshold shifts present. She also noted that the Veteran reported occupational noise exposure for 35 years while working at General Motors as a pipe fitter repairman; thus, it is more likely than not that his hearing loss is due to post-military noise exposure or age-related hearing loss (presbycusis). The competent and probative evidence is at least in equipoise as to whether current bilateral hearing loss had their onset in or are otherwise related to the Veteran's period of active service. See 38 C.F.R. §§ 3.102, 3.303. The Board notes that the lack of evidence showing that the Veteran exhibited hearing loss during service, as pointed out by the February 2012 and March 2021 VA examiners, is not fatal to his claim. As noted in the introduction, the laws and regulations do not require in-service complaints of, or treatment for, hearing loss to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87 (1992). Where there is no evidence of hearing disability until many years after service, "if evidence should sufficiently demonstrate a medical relationship between the veteran's in-service exposure to loud noise and his current disability, it would follow that the veteran incurred an injury in service." Hensley, 5 Vet. App. at 160. The December 2018 opinion appears to be based on an accurate understanding of the Veteran's military service and medical background. The physician provided an adequate explanation for his finding. In light of the Veteran's in-service noise exposure, the diagnosis of a hearing loss disability under 38 C.F.R. § 3.385, his credible lay history regarding his hearing loss, and the findings of the VA and private examiners, the Board finds that the competent evidence is at least in equipoise as to whether bilateral hearing loss is related to active service. Accordingly, resolving reasonable doubt in his favor, the Board concludes that service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 57-58; 38 C.F.R. § 3.102. The claim is granted. 2. Residuals of burns. The Veteran asserts that he was involved in a fire while in service, which burned his hands, arms, and chest. Indeed, the record demonstrates the Veteran suffered burns following a tank explosion while serving in Vietnam. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a residual disability due to his in-service burns, including scarring, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The record contains no evidence of burn-related skin issues during the period on appeal. The December 2020 VA examiner evaluated the Veteran and determined that he had no symptoms of scars but has numbness and tingling in both hands. The examiner explained the Veteran was diagnosed with first and second-degree burns in 1969, and first and second-degree burns typically do not cause permanent scarring. The December 2020 VA examiner also explained that the diagnosis of cellulitis in 2010 is not related to the Veteran's burns that occurred in 1969. Cellulitis is an infection of the skin that bacterial infection typically causes. The bacteria enter the skin from a skin barrier breakdown, such as skin abrasion, scratch, or swelling. The current examination does not show evidence of any residuals of the burns that occurred in 1969. A review of the record indicates the Veteran had second-degree burns, which will not cause long-term sequela regarding the integrity of the skin barrier and will not cause cellulitis decades later. That the Veteran has symptoms of numbness and tingling in both hands and suffers psychological effects that accompany the traumatic experience of being burned in a tank explosion is recognized; however, he is service-connected for bilateral upper extremity peripheral neuropathy and posttraumatic stress disorder (PTSD) with major depression and panic disorder. He is being compensated for those limitations, as the percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from service-connected disabilities and the residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The Veteran is currently in receipt of a 70 percent rating evaluation for his PTSD, 30 percent for his left upper extremity peripheral neuropathy, and 20 percent for his right upper extremity peripheral neuropathy. Service connection for residuals of burns is denied because the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 54-56. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Costa, Counsel 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.