08-17 554

Citation Nr: 1008500 Decision Date: 03/08/10 Archive Date: 03/17/10 DOCKET NO. 08-17 554 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a left eye disorder. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran & Spouse ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from April 1954 to March 1957. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in St. Petersburg, Florida, that denied the benefits sought on appeal. The Board notes that although additional medical evidence was submitted after the last supplemental statement of the case, in a December 2009 document, the Veteran waived his right to have this evidence reviewed in the first instance by the RO. The issue of entitlement to service connection for a left eye disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's bilateral hearing loss has been etiologically related to service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1131 , 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102 , 3.159, 3.303, 3.304 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq; 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2009). This law eliminated the concept of a well-grounded claim, redefined the obligations of VA with respect to the duty to assist, and imposed on VA certain notification requirements. Without deciding whether the notice and development requirements of VCAA have been satisfied in the present case, it is the Board's conclusion that the new law does not preclude the Board from adjudicating the Veteran's claim for service connection. This is so because the Board is taking action favorable to the Veteran by granting service connection for bilateral hearing loss; a decision at this point poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). To establish service connection, the record must contain (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances, lay testimony, of inservice incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. In other words, entitlement to service connection for a particular disability requires evidence of the existence of a current disability and evidence that the disability resulted from a disease or injury incurred in or aggravated during service. Here, the first element for service connection has been met. Audiometric data from January 2009, for example, establishes a diagnosis of bilateral hearing loss for VA purposes. Further, the evidence here supports that the Veteran's hearing loss was incurred in and is related to service. In this case, while there are service treatment notes of record, a March 2001 statement from the National Personnel Records Center indicates that apparently some records were destroyed in the 1973 fire at the National Personnel Records Center. Given the absence of such records, the Board has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991) (the BVA has a heightened duty in a case where the service treatment records are presumed destroyed). In this case, the Board finds the lay evidence of record to be probative on the issue of in-service incurrence. The Veteran has stated that he was exposed to loud noise, including tank firing, rifle firing, and grenade firing, while in the infantry as a medical aidman ro filed medic. At his December 2009 personal hearing he testified that he followed battalions as they practiced combat maneuvers and was exposed to excessive noise. The Board finds the Veteran is both credible and competent to report his symptoms of hearing loss from this time. The Court of Appeals for Veterans Claims has recently held that lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In addition, the Veteran has submitted a December 2009 lay statement of C.F. In the statement, C.F. states that he has been the Veteran's friend and neighbor since childhood, that they both entered different branches of the military at around the same time, and that upon discharge, they opened a private detective and patrol business which they operated together for many years. C.F. states that in 1957, immediately after discharge and upon opening their business, the Veteran's hearing loss became quite obvious to him during the operation of their company. He stated that the Veteran was often unable to hear the responses of witnesses and would ask them to repeat themselves, when the responses were perfectly clear to C.F. In addition to the Veteran's own statements, the Board finds this evidence persuasive on the in-service incurrence of the Veteran's hearing loss. The Board is further persuaded by the positive nexus opinion of record. In a November 2000 statement of Harold M. Silberman, M.D., Dr. Silberman stated, "[h]e was in the U.S. Army from March 1954 to April 1957 in the tank corp. He was exposed to heavy weapon firing and noted changes in his hearing commencing a few years after he left service. It is most probable that his hearing los was related to noise trauma from his military service." The Board notes that a medical opinion formed on the basis of the Veteran's reported medical history cannot be rejected without the Board first finding that the Veteran's allegations are not credible. Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (holding that Board may not disregard a medical nexus opinion solely on the rationale that the medical opinion was based on an "uncorroborated" history given by the Veteran of in-service acoustic trauma where the history has not been found by the Board to be inaccurate; the case involved a Korean War Veteran and 1973 fire destroyed records); Coburn v. Nicholson, 19 Vet. App. 427, 432 (2005); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (holding the Board cannot determine that a Veteran's statements lack credibility merely based on a lack of such documentation in the service treatment records);. As discussed above, the Board finds no reason to doubt the credibility of the statements made by the Veteran or his friend. Moreover, the file contains no nexus evidence to the contrary of Dr. Silberman's finding. As such, and given all of the above evidence, the Board finds the evidence supports that the Veteran's current bilateral hearing loss was incurred in service and is related to service. Accordingly, the claim is granted. ORDER Service connection for bilateral hearing loss is granted. REMAND The Veteran in this case is also seeking service connection for a left eye disorder. At the outset, the Board notes that at the December 2009 hearing, the Veteran testified to receiving private medical treatment for his condition in as early as the late 1950s. While these records may be unavailable, the Veteran should at least be afforded the opportunity to submit any information necessary for the RO to request them. 38 C.F.R. § 3.159 (c)(1) defines reasonable efforts in obtaining records outside the custody of the federal government as "an initial request for the records, and, if the records are not received, at least one follow-up request." A remand is additionally required in order to afford the Veteran a VA examination to determine the nature and etiology of his disability. In the case of a disability compensation claim, VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159 (c)(4) (2009). Such an examination or opinion is necessary to make a decision on a claim if all of the lay and medical evidence of record (1) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (2) indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service; but (3) does not contain sufficient medical evidence for VA to make a decision on the claim. Id. Here, the Veteran's service treatment records confirm the injury the Veteran contends occurred to his eye while on active duty. The Veteran states that during basic training he was struck with a tree branch in the left eye while practicing maneuvers at night. He states that proper night vision protective gear was not used at that time. He contends that ever since this injury, he has suffered from blurry vision in the eye. The Veteran's eye injury is documented in an illegibly dated service treatment record. Complaints of blurry vision are documented in separate service treatment records of May 1954. Scars in the left eye were noted in a service treatment record of January 1957. The Veteran recently submitted a private treatment record from his eye doctor, Warren K. Gross, O.D., but the diagnosis is unclear. A VA examination is needed to clarify the Veteran's exact diagnosis and to determine whether there is any relationship between the current problem and the inservice accident. Last, at the hearing, the Veteran requested a copy of his December 2009 hearing transcript. Accordingly, while the case is in remand status, the requested copy should be furnished to the Veteran and his representative. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide any authorization forms necessary to allow the RO to obtain private treatment records for any treatment he has received since discharge related to his eye. Thereafter, the RO should attempt to obtain those records. Do not associate duplicate records with the file. 2. Afford the Veteran a VA eye examination with an appropriate examiner to ascertain the nature and etiology of his left eye disorder. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file, particularly the service treatment record documenting the Veteran's eye injury and subsequent notes of May 1954 and January 1957, and offer comments and an opinion addressing whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that the Veteran's current eye disorder had its onset during service or is in any other way causally related to his active service. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file itself, must be made available to the examiner. The Veteran is hereby notified that it is his responsibility to report for the examination scheduled in connection with this REMAND and to cooperate in the development of his case. The consequences of failure to report for a VA examination without good cause may include denial of his claim. 38 C.F.R. §§ 3.158 , 3.655 (2009). 3. Provide the Veteran and his representative with a copy of the transcript of the December 2009 travel Board hearing. After all of the above actions have been completed, readjudicate the Veteran's claim. If the claim remains denied, issue to the Veteran a supplemental statement of the case, and afford the appropriate period of time within which to respond thereto. The Veteran 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 2002 & Supp. 2009). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs