Citation Nr: 0814890 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 05-32 617A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to a compensable increased rating for right ear hearing loss. 2. Entitlement to service connection for left ear hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Katz, Associate Counsel INTRODUCTION The veteran served on active duty from April 1969 to February 1973. This case comes to the Board of Veterans' Appeals (Board) from a rating decision of the Chicago, Illinois Regional Office (RO). The veteran submitted testimony before the undersigned Veterans' Law Judge at a February 2008 videoconference hearing. The issues of entitlement to service connection for tinnitus and diabetes are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. For the entire appeal period, the veteran's right ear hearing loss has been documented to be no worse than Level III. 2. The veteran incurred noise exposure in service. 3. The veteran does not have left ear hearing loss as defined as a disability for VA purposes. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for right ear hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85 through 4.87, Diagnostic Codes (DCs) 6100 through 6110 (2007). 2. Left ear hearing loss was not incurred in or aggravated by active duty service, nor may sensorineural hearing loss be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Proper notice from VA must inform the claimant of any information and medical or lay 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 her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The veteran's increased rating claim for right ear hearing loss arises from his disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. As to VA's duty to assist, VA has associated with the claims folder the veteran's private medical records and he was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. In addition, he was afforded two VA medical examinations. The Board finds that no additional assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). With regards to the service connection claim for left ear hearing loss, the VCAA duty to notify was satisfied by way of a letter sent to the veteran in May 2004 that fully addressed all four notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. He was also asked to submit evidence and/or information in his possession to the RO. There is no allegation from the veteran that he has any evidence in his possession that is needed for full and fair adjudication of this claim. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, the veteran was not provided with notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal. However, there is no prejudice in issuing a final decision because the preponderance of the evidence is against the claim for service connection. Any questions as to the appropriate disability rating or effective date to be assigned are moot. Therefore, adequate notice was provided to the veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained private medical records and he was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. In addition, he was afforded two VA medical examinations. Significantly, neither the veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. However, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining the level of occupational and social impairment). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's right ear hearing loss is currently rated as noncompensable. His left ear, as seen below, is not service- connected for hearing loss. VA rating criteria for the evaluation of hearing loss provide ratings from zero (noncompensable) to 100 percent, based on the results of controlled speech discrimination tests together with the results of pure tone audiometry tests which average pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. §§ 4.85 through 4.87; DCs 6100 through 6110. The evaluation of hearing impairment applies a structured formula which is essentially a mechanical application of the rating schedule to numeric designations after audiology evaluations are done. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The veteran's left ear is considered to be Level I for rating purposes because it is not service-connected for hearing loss. 38 C.F.R. § 4.85(f). The veteran's hearing was initially tested two years prior to his claim, in July 2002, at a private examination. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 30 35 45 55 Speech audiometry revealed speech recognition ability of 96 percent in the right ear. Under Table VI, the veteran's right ear hearing loss is considered to be Level I based on this examination. The veteran's hearing was again tested during the period on appeal at an August 2004 VA examination. Pure tone thresholds, decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 25 45 40 Speech audiometry revealed speech recognition ability of 80 percent in the right ear. Under Table VI, the veteran's right ear hearing loss is considered to be Level III based on these results. Finally, the veteran's hearing was again measured at a November 2004 VA examination. Pure tone thresholds, decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 20 40 35 Speech audiometry revealed speech recognition ability of 92 percent in the right ear. Under Table VI, the veteran's right ear hearing loss is considered to be Level I based on these results. Using each of the above hearing levels and Table VII, the veteran's right ear hearing loss is determined to render a noncompensable disability rating. As a result, his claim for an increased disability rating must fail. With regards to all the claims for increased ratings, the Board has considered the veteran's statements and sworn testimony regarding his service-connected disabilities on appeal. In rendering a decision on 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the later is a factual determination going to 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); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. Layno, 6 Vet. App. at 470. As a lay person, however, he is not competent to offer opinions on medical diagnosis, and the Board may not accept unsupported lay speculation with regard to medical issues. See Moray v. Brown, 5 Vet. App. 211 (1993); Espiritu v. Derwinski, 2 Vet. App. 482 (1992). As noted, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. The Board finds that the medical findings, which directly address the criteria under which the service- connected disability is evaluated, more probative than the subjective evidence of an increased disability. Service Connection As seen above, the veteran is service-connected for right ear hearing loss. The veteran claims that he also has left era hearing loss and tinnitus as a result of noise exposure in service. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). To establish service connection for hearing loss disability, the veteran is not obliged to show that his hearing loss was present during active military service. However, if there is insufficient evidence to establish that a claimed chronic disability was present during service, the evidence must establish a nexus between his current disability and his in- service exposure to loud noise. See Godfrey v. Derwinski, 2 Vet. App. 352 (1992). Moreover, with certain enumerated disorders such as sensorineural hearing loss, service incurrence may be presumed if the disease is manifested to a degree of 10 percent or more within one year after the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.307, 3.309 (2007). Hearing loss disability is defined by regulation. For the purpose of applying laws administered by the VA, impaired hearing will be considered 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 veteran's service records indicate that he served as an electrical repairman and was exposed to noise while working in the engine room onboard the ship upon which he was stationed. He is presumed to have incurred noise exposure in that line of duty. After separation, the veteran denied employment or hobbies which would have resulted in other forms of noise exposure. There are three separate audiograms in the claims file and two out of three of them fail to indicate left ear hearing loss that is considered a disability under 38 C.F.R. § 3.385. First, at a private audiogram conducted in July 2002, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 20 30 40 45 55 Speech audiometry revealed speech recognition ability of 92 percent in the left ear. Second, at a VA examination conducted in August 2004, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 20 25 20 30 35 Speech audiometry revealed speech recognition ability of 80 percent in the left ear. The examiner noted hesitancy on the part of the veteran and for this reason discounted the speech recognition ability portion of the examination in the examination report and suggested it not be used for rating purposes. Finally, at a VA examination conducted in November 2004, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 15 15 20 30 25 Speech audiometry revealed speech recognition ability of 94 percent in the left ear. While the first audiogram indicates pure tone thresholds and speech recognition ability that would meet the criteria imposed for a hearing loss disability for VA purposes, together with the totality of the evidence presented by the three audiograms, left ear hearing loss cannot be considered a disability under 38 C.F.R. § 3.385. First, the private July 2002 audiogram's results, taken over two years prior to the VA examinations, indicate pure tone thresholds that are not consistent with the levels at each of the VA examinations. The July 2002's results are much higher and the August 2004 VA audiogram results are also higher than those taken at the most recent examination in November 2004. Inexplicably, the veteran's hearing appears to be improving over the course of time. This may be due in part to that noted by the August 2004 examiner. At that time, the examiner indicated that the examination results were somewhat clouded due to poor cooperation by the veteran and increased hesitancy to respond. Specifically, the examiner stated that the results concerning speech recognition were affected by the veteran's hesitancy and should not be used for rating purposes. As the July 2002 private audiogram is the only which yields a diagnosis of hearing loss as a disability for VA rating purposes and the most recent two examinations do not indicate such a result, the veteran is determined to not currently have left ear hearing loss as a disability. While he may have had such disability at the time of the July 2002 private examination, he did not file a claim for disability until March 2004. This would suggest that the hearing evaluations taken in that year more nearly approximate the veteran's claimed hearing loss disability. And, as these evaluations do not indicate a hearing loss disability as defined by 38 C.F.R. § 3.385, the veteran's claim must be denied. As the weight of the medical evidence of record indicates that the veteran currently does not have a hearing loss disability as defined by 38 C.F.R. § 3.385, and a valid claim cannot be made without a current diagnosis of a disability, the veteran's claim must be denied. Despite the veteran's contentions that he currently suffers from hearing loss, there is no medical evidence suggesting such a diagnosis. Since there can be no valid claim in the absence of competent medical evidence of present disability and there is no medical evidence in the claims folder suggesting a diagnosis of the veteran as currently having hearing loss, the veteran's claim for service connection must be denied. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board has also considered the veteran's statements asserting a diagnosis of hearing loss as a disability. In rendering a decision on 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the later is a factual determination going to 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); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. Layno v. Brown, 6 Vet. App. at 470. As a lay person, however, he is not competent to offer opinions on medical diagnosis or causation, and the Board may not accept unsupported lay speculation with regard to medical issues. See Moray v. Brown, 5 Vet. App. 211 (1993); Espiritu v. Derwinski, 2 Vet. App. 482 (1992). In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection for left ear hearing loss and there is no doubt to be otherwise resolved. As such, the appeal is denied. ORDER A compensable increased rating for right ear hearing loss is denied. Service connection for left ear hearing loss is denied. REMAND At both VA examinations conducted in August and November 2004, the veteran was also diagnosed as having tinnitus in addition to the hearing loss for which his right ear is service connected. In addition, on each occasion, the examiner stated that the likely etiology of tinnitus was either noise exposure or presbycusis (due to the regular aging process). The veteran has claimed repeatedly to have had symptoms of ringing in his ears since service. However, at the August 2004 examination, the examiner reported the veteran stated that onset of tinnitus occurred within the past 10 to 15 years. The veteran argues that he did not understand the question when posed at that examination and thought the examiner was referring to tendonitis and not tinnitus. Later, at the November 2004 examination, upon being asked onset of tinnitus, the veteran stated onset during service. However, the examiner, the same at each of these VA examinations, explained that there could not have been confusion between tendonitis and tinnitus as she regularly asks whether the patient has ringing in the ears, no whether the patient has tinnitus. Regardless of the date of onset of the veteran's tinnitus, as the veteran is service-connected for right ear hearing loss due to in-service noise exposure, it must be determined whether tinnitus is related to his service-connected right ear hearing loss prior to adjudication. As a result, the issue must be remanded for a further medical opinion. An August 2005 RO rating decision denied the veteran's claim of entitlement to service connection for a diabetes among other issues. In a written statement received in August 2006, within a year of the issuance of the August 2005 rating decision, the veteran argued that the rating decision's reasoning was faulty and that his diabetes was related to service. The Board construes this statement as expressing disagreement with the RO August 2005 determination. This issue is remanded for the issuance of a Statement of the Case (SOC) in order to afford the veteran the opportunity to perfect his appeal. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED back to the RO via the Appeals Management Center in Washington, DC for the following actions: 1. Obtain a medical opinion from the same medical examiner who examined the veteran in August 2004 and November 2004 or from a similarly qualified examiner to determine if the veteran's tinnitus is proximately due to or a result of, or is otherwise related to, his service-connected right ear hearing loss. A complete rationale must be provided for any opinion offered. If the VA examiner concludes that an opinion cannot be offered without engaging in speculation then she/he should indicate this. 2. Thereafter, readjudicate the issue of entitlement to service connection for tinnitus and if it remains denied, issue the veteran a statement of the case and allow an appropriate period for response. 3. Additionally, issue the veteran a statement of the case regarding the issue of entitlement to service connection for diabetes. Manlincon v. West, 12 Vet. App. 238 (1999). Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The appellant need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2007) failure to cooperate by attending the requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. All claims remanded by the Board 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. 2006). ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs