Citation Nr: 0813204 Decision Date: 04/22/08 Archive Date: 05/01/08 DOCKET NO. 06-16 669 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Whether new and material evidence has been received to reopen a claim for service connection for chronic lung disorder. 4. Entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of squamous cell carcinoma of the right true vocal cord as caused by VA medical treatment or examination 2003 and 2004. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M.G. Mazzucchelli, Counsel INTRODUCTION The appellant is a veteran who served on active duty from February 1967 to January 1969. The case is before the Board on appeal from an April 2005 rating decision by the Houston, Texas, regional office (RO) of the Department of Veterans Affairs (VA). A Travel Board hearing was held there before the undersigned in March 2008. The issues of whether new and material evidence has been received to reopen a claim for service connection for chronic lung disorder, and entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of squamous cell carcinoma of the right true vocal cord, are being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. It is not shown that the veteran has a hearing loss disability of either ear by VA standards. 2. Tinnitus was not manifested in service, and the preponderance of the evidence is against a finding that such disability is related to the veteran's service. CONCLUSIONS OF LAW 1. Service connection for bilateral hearing loss is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2007). 2. Service connection for tinnitus is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his or her possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Via letter in February 2005, the veteran was informed of the evidence and information necessary to substantiate his claims for service connection for hearing loss and tinnitus, the information required of him to enable VA to obtain evidence in support of his claims, the assistance that VA would provide to obtain evidence and information in support of his claims, and the evidence that he should submit if he did not desire VA to obtain such evidence on his behalf. The VCAA letter informed the veteran that he should submit any medical evidence pertinent to his claims. The April 2006 statement of the case provided the laws and regulations regarding service connection. Although complete VCAA notice was not provided to the veteran prior to the initial adjudications in these matters, he has had ample opportunity to supplement the record and to participate in the adjudicatory process following notice. The veteran is not prejudiced by any notice deficiency, including in timing, earlier in the process. The veteran did not receive timely notice regarding disability ratings or effective dates of awards (Dingess v. Nicholson, 19 Vet. App. 473 (2006)); a March 2006 letter provided such notice. Regardless, this decision denies service connection, and neither the rating of a disability nor the effective date of an award is a matter for consideration. Hence, the veteran is not prejudiced by any timing defect of this notice. The veteran's service medical records (SMRs) are associated with his claims file, as are his VA and private treatment records. He was afforded a VA examination in February 2005. He has not identified any pertinent records that remain outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of these claims. II. Factual Background The veteran's SMRs do not show any complaints or findings of hearing loss or tinnitus. In his report of medical history at the time of separation from service in August 1968, the veteran specifically denied any hearing loss or ear trouble. Enlistment audiometry showed that puretone thresholds were (ASA values converted to ISO values for consistency): HERTZ 500 1000 2000 4000 RIGHT 10 5 5 5 LEFT 15 10 10 5 The separation examination showed puretone thresholds were: HERTZ 500 1000 2000 4000 RIGHT 10 5 0 5 LEFT 5 5 0 10 VA audiometry in February 2005 showed the following: HERTZ 500 1000 2000 3000 4000 RIGHT 10 20 10 20 35 LEFT 15 15 15 25 20 Speech audiometry revealed that speech recognition was 94 percent in the right ear and 96 percent in the left ear. The veteran reported post-military occupational and recreational noise exposure including work in a machine shop (with hearing protection) and use of a chainsaw (without hearing protection). He stated that he had had tinnitus for "as long as I can remember." The examiner noted normal hearing in the left ear and mild sensorineural hearing loss at 4000 hertz in the right ear. The examiner opined that the veteran's hearing loss was not related to his history of military noise exposure, noting that there was no significant change in hearing between the enlistment and separation examinations. He also opined that the veteran's tinnitus was not related to his history of military noise exposure. The examiner noted that the veteran did not associate the onset of tinnitus to any specific acoustic event, and that it was more likely that his tinnitus was the result of the same post-service noise exposure that caused his current hearing loss. III. Legal Criteria and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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. Sensorineural hearing loss (as an organic disease of the nervous system) is a chronic disease which may be presumptively service connected if manifested to a compensable degree in the first postservice year. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. To prevail in a claim seeking service connection, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the current disability and the disease or injury in service. See Hickson v. West, 12 Vet. App. 247 (1999). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). Hearing Loss Hearing loss disability is defined by regulation. For the purpose of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those 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. There is no competent (medical) evidence that the veteran has hearing loss by VA standards; thus, the record contains no evidence of current disability for VA compensation purposes. In the absence of proof of current disability, there is no valid claim of service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Given the lack of proof of current hearing loss, analysis of the claim need not proceed further. However, it is noteworthy that the veteran's SMRs are silent for findings of that disability, and there is no medical evidence of sensorineural hearing loss within the first postservice year. Consequently, 38 U.S.C.A. § 1112 chronic disease presumptions for hearing loss (as an organic disease of the nervous system) do not apply. The veteran's own statements to the effect that he has hearing loss that is related to his active service do not constitute competent evidence, as he is a layperson. See Espiritu v. Derwinski, 2 Vet. App. 492, 494- 45 (1992). The Board has considered the benefit of the doubt doctrine; however, as the preponderance of the evidence is against this claim, that doctrine does not apply. Tinnitus There is no evidence that tinnitus was manifested in service. The veteran's SMRs are silent for tinnitus complaints or diagnosis. A diagnosis of tinnitus is not clinically noted until the February 2005 VA examination. Hence, service connection for tinnitus on the basis that it became manifest in service, and persisted, is not warranted. Service connection for tinnitus may still be established if competent evidence shows that such disability is related to (was incurred or aggravated in) the veteran's active service. The only competent (medical) evidence of record in the matter of a nexus between the veteran's tinnitus and his service is the February 2005 VA audiologist's opinion to the effect that it is unrelated service. There is no competent evidence to the contrary. Furthermore, the fact that the disability was not manifested until many years after service is, of itself, a factor against a finding that it is service connected. Since he is a layperson, the veteran's own belief that his tinnitus is related to service is not competent evidence. See Espiritu, supra. As a preponderance of the evidence is against the claim seeking service connection for tinnitus, it must be denied. ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. REMAND Notice must notify a claimant of the evidence and information needed to reopen the claim, as well as the evidence and information needed to establish entitlement to the underlying claim. Kent v. Nicholson, 19 Vet. App. 473 (2006). This notice must describe what evidence would be needed to substantiate the elements found insufficient to establish the underlying claim in the previous denial. Such notice has not been provided to the veteran. The veteran has not been issued proper notice for the issue of whether new and material evidence has been submitted for the claim for service connection for a lung disorder consistent with the holding in Kent. Therefore, the Board must remand this issue to ensure the veteran has received proper notice. In his claim for compensation under 38 U.S.C.A. § 1151, the veteran contends that he incurred additionally disability as a result of VA's failure to timely diagnose and treat squamous cell carcinoma of the right true vocal cord. The record shows that the veteran was first noted to complain of "voice changes" in October 2003. In April 2004, a biopsy confirmed a diagnosis of squamous cell carcinoma, and the veteran underwent radiation treatments. When a veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, compensated work therapy, or an examination furnished by the VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service connected. 38 U.S.C.A. § 1151. 38 U.S.C.A. § 1151 provides in relevant part as follows: (a) Compensation under this chapter and dependency and indemnity compensation under chapter 13 of this title shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran's willful misconduct and (1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. (emphasis added) The implementing regulation (applicable to 1151 claims received on or after October 1, 1997) is 38 C.F.R. § 3.361 (2007), which provides that, in order to determine whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program upon which the claim is based to the veteran's condition after such care, treatment, examination, services, or program has stopped. VA considers each involved body part or system separately. 38 C.F.R. § 3.361(b). Claims based on additional disability due to hospital care, medical or surgical treatment, or examination must meet the causation requirements of this paragraph and paragraph (d)(1) (informed consent) or (d)(2) (unforeseen event) of this section. To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination was without the veteran's informed consent, or, in appropriate cases, was without the veteran's representative's informed consent. To determine whether there was informed consent, VA will consider whether the health care provider substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a veteran's additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). Such VA treatment cannot cause the continuance or natural progress of a disease or injury for which such care was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). The Board notes that under 38 C.F.R. § 3.159(c)(4), in a claim for disability compensation, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim. Here, given the veteran's assertions and the evidence showing VA treatments and procedures in 2003 and 2004, the Board finds that a VA medical opinion is warranted to properly adjudicate the claim under the provisions of 38 U.S.C.A. § 1151. Accordingly, the case is REMANDED for the following action: 1. Provide the veteran notice that is consistent with the holding in Kent v. Nicholson, 19 Vet. App. 473 (2006), on the issue of reopening a prior final decision of service connection for a lung disorder. The veteran must be specifically informed that the prior denial (in a September 1972 rating decision) was based on a finding that asthma preexisted service and was not aggravated therein, and that therefor new and material evidence would have to demonstrate that his preexisting lung disability permanently increased in severity during the period of service beyond natural progression of the underlying disease process. 2. Inform the veteran tat he may wish to obtain and submit a medical opinion addressing whether there was any delay in diagnosing his squamous cell carcinoma, and whether such delay resulted in additional disability. 3. Have the claims folder reviewed by an appropriate specialist. Specifically, the physician should provide an opinion (whether it is at least as likely as not - meaning a 50 percent or greater probability) as to whether any delay in diagnosing the veteran's squamous cell carcinoma of the right true vocal cord caused additional disability, and, if so, that any additional disability was proximately caused by VA carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault in furnishing this medical treatment, or was the result of an event that was not reasonably foreseeable. The entire claims folder should be reviewed in conjunction with such opinion, to include the VA treatment records dated from October 2003 to August 2004. All opinions expressed should be accompanied by complete rationales, to include specific references to the evidence of record where appropriate. 4. Thereafter, readjudicate the veteran's claims of entitlement to compensation under 38 U.S.C.A. § 1151, and whether new and material evidence has been received to reopen a claim for service connection for a lung disorder. If a benefit sought is not granted, issue a supplemental statement of the case and afford the veteran and his representative an appropriate opportunity to respond. Thereafter, the case should be returned to the Board, as warranted. The appellant 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 Supp. 2007). ______________________________________________ ROBERT O'BRIEN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs