Citation Nr: 1007398 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 06-38 263 ) 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. Entitlement to service connection for a left ankle disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Lipstein, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1974 to December 1979. The bilateral hearing loss and left ankle matters come to the Board of Veterans' Appeals (Board) from a November 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was filed in December 2005, a statement of the case was issued in October 2006, and a substantive appeal was received in December 2006. The tinnitus matter comes to the Board from an August 2006 rating decision of a VA RO. A notice of disagreement was filed in October 2006, a statement of the case was issued in March 2007, and a substantive appeal was received in April 2007. The Veteran requested a Central Office Board hearing in the December 2006 substantive appeal, but indicated that he did not want a Board hearing in his April 2007 substantive appeal. The Veteran has not responded to a December 2009 request to clarify whether he desired a Board hearing within the allotted abeyance time frame. He was advised in the December 2009 correspondence that nonresponse would be taken to mean that he did not desire a Board hearing. Therefore, the Board will proceed to adjudication of the claims on appeal. FINDINGS OF FACT 1. The appellant has a bilateral hearing disability that is as likely as not attributable to acoustic trauma in service. 2. The appellant has tinnitus that is as likely as not attributable to the same etiology as his bilateral hearing disability. 3. The Veteran is not shown to have a current left ankle disability that is causally or etiologically related to service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the appellant's favor, hearing loss was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2009). 2. Resolving reasonable doubt in the appellant's favor, tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2009). 3. A left ankle disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.159 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 Before addressing the merits of the Veteran's claims on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2009); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). With respect to the bilateral hearing loss and tinnitus claims, the Board is granting in full the benefits sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. With respect to the left ankle claim, the notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in March 2005. A June 2006 letter also provided the Veteran with notice of the types of evidence necessary to establish a disability rating and the type of evidence necessary to establish an effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the March 2005 notice does not provide any information concerning the evaluation or the effective date that could be assigned should service connection be granted, Dingess v. Nicholson, 19 Vet. App. 473 (2006), since this decision affirms the RO's denial of service connection, the Veteran is not prejudiced by the failure to provide him that further information. The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The evidence of record contains the Veteran's service treatment records and post-service VA medical records. The evidence of record also contains reports of a VA examination performed in August 2005. The examination report is thorough and contains sufficient information to decide the issue on appeal. See Massey v. Brown, 7 Vet. App. 204 (1994). This is so because the August 2005 examiner obtained a reported history from the Veteran and conducted a thorough examination and specifically noted that the claims file had been reviewed. The Veteran and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, No. 444 F.3d 1328 (Fed. Cir. 2006). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issues on appeal. Service Connection Criteria Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from injury suffered or disease contracted in line of duty, or for aggravation of a pre- existing injury suffered or disease contracted in the line of duty, in the active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131, 38 C.F.R. §§ 3.303, 3.304, 3.306. Service connection may also 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). In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). This principle has been repeatedly reaffirmed by the Federal Circuit, which has stated that "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1133; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. 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, 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 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. Bilateral Hearing Loss and Tinnitus Factual Background & Analysis The Veteran has claimed entitlement to hearing loss and tinnitus due to exposure to noise from artillery and aircraft engines during active service. A service Report of Medical Examination dated in October 1974 for enlistment purposes reflects that the Veteran's ears were clinically evaluated as normal. Audiometric testing showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 - 15 LEFT 15 10 5 - 5 Service treatment records dated in December 1976 reflect that the Veteran was assessed with temporary partial hearing loss. In January 1977 the Veteran reported having tinnitus since he experienced a loud sound in his right ear from a radio headset in December 1976. He was placed on temporary bed rest. An April 1977 private examiner diagnosed Meniere's syndrome and recommended an otology work-up. In May 1977, the Veteran complained of ringing in the ears and loss of hearing after shooting a .22 caliber pistol while on leave. In August 1977, the Veteran was assessed with bilateral high frequency hearing loss, as well as tinnitus, possibly secondary to the hearing loss after an audiogram disclosed bilateral hearing loss. An undated Report of Medical Examination for separation purposes reflects that the Veteran's ears were clinically evaluated as normal, and no hearing screen was performed. A Report of Medical History dated in November 1979 for separation purposes reflects that the Veteran checked the "no" boxes for ear, nose, or throat trouble and hearing loss. The Veteran underwent a VA examination for ear disease in August 2005. He stated that he served in the Navy aboard a ship and suffered recurrent blasts of static in his ear as a radio man. Following physical examination, the examiner diagnosed hearing loss and tinnitus. The Veteran underwent a VA audiological examination in August 2005. The examiner noted that the claims file was never received for review. The Veteran reported in-service noise exposure to naval guns firing once every 6 months, aircraft and ship engines, and power tools, all without hearing protection. He stated that hearing protection was not used during occupational/recreational noise exposure to construction work (plumbing and carpentry work), machine shop, truck driver, electrical generators, jack hammer, power tools, chainsaw, lawn mower, and weed eater. He stated that tinnitus began in service when he unexpectedly heard a very loud blast of feedback when testing a radio transmitter. Speech recognition threshold scores were 94 percent for the right ear and 98 percent for the left ear. Audiometric testing showed pure tone thresholds, in decibels, as follows, with a right ear average of 43 decibels and a left ear average of 36 decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 45 50 60 LEFT 25 25 25 45 50 The examiner diagnosed moderate to moderately severe sensorineural hearing loss above 1500 Hz in the right ear, and moderate sensorineural hearing loss above 2000 Hz in the left ear. The examiner could not give an opinion about the relationship between the Veteran's hearing loss and his military service without reviewing his claims file because any opinion would be based on speculation without such review. The examiner diagnosed tinnitus, noting that tinnitus is a subjective complaint with no objective means of documenting its presence or absence. The examiner could not give an opinion about the relationship between tinnitus and military service without reviewing his claims file and service treatment records, noting that any opinion now would be based on speculation. A VA examination addendum dated in October 2005, following review of the Veteran's claims file, reflects that the examiner opined that the Veteran's current complaint of tinnitus is not at least as likely as not related to military noise exposure based on his medical history, including the fact that the veteran had no ear or hearing complaints in November 1979 and the fact that he was exposed to considerable high-intensity noise as a civilian. With respect to the Veteran's bilateral hearing loss, while the examiner opined that the majority of the Veteran's hearing loss most likely occurred after he left the military and was exposed to considerable noise as a civilian, the examiner concluded that the Veteran's normal hearing at enlistment and mild loss in the right ear on a January 1976 audiogram showed that "his hearing loss began during military service." In the present case, the Board finds that the evidence supports the appellant's claim for service connection for hearing loss. The record contains audiometric evidence, including the report of the August 2005 VA examination, which clearly shows, among other things, that the appellant has an auditory threshold of 40 decibels or greater in more than one of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz), bilaterally. Thus, it is clear that he has a bilateral "hearing disability," as VA defines that term. See 38 C.F.R. § 3.385 (2009). The records also reflects that the appellant suffered acoustic trauma in service, inasmuch as his service treatment records show contemporaneous reports of exposure to loud noises from a headset and a firearm. Thus, the outcome of his claim turns on whether there is a nexus, or link, between his current disability and acoustic trauma in service. As to that question, the record contains an August 1977 service department ENT report which shows that the appellant's had bilateral high frequency hearing loss at 4,000 Hz, and a VA medical opinion, dated in October 2005, which indicates that the appellant's current hearing loss began in service. The October 2005 opinion is not entirely clear as to whether it is just addressing the etiology of the right ear hearing loss or whether the opinion pertains to both ears. Regardless, when considered with the rest of the evidence of record which supports the claim, the August 1977 service report, prepared by an ENT specialist after reviewing the results of an audiogram, is sufficient upon which to base the grant of service connection. The Board also finds that the evidence supports the claim for service connection for tinnitus. The reports of the August 2005 VA examination and the October 2005 addendum show that the appellant has the condition currently. The Board notes that the VA examiner who prepared the addendum opined that the appellant's tinnitus was "not at least as likely as not related to his military service." The Board also notes, however, that the August 1977 service ENT record indicated a probable relationship between the Veteran's tinnitus and his hearing loss. In addition, medical treatises indicate that the cause of tinnitus can usually be determined by finding the cause of the coexisting hearing loss. See, e.g., Harrison's Principles of Internal Medicine 182 (Dennis L. Kasper et al. eds., 16th ed. 2005). Under the particular circumstances presented here, the Board is persuaded that the appellant's tinnitus can likely be attributed to the same etiology as his service-connected hearing loss, i.e., in- service exposure to noise. The evidence, at a minimum, gives rise to a reasonable doubt on the question. 38 C.F.R. § 3.102 (2006). Service connection for tinnitus is therefore granted. Left Ankle Factual Background & Analysis Service treatment records reveal that the Veteran complained several times of ankle problems. Records dated in July and September 1975 reflect that the Veteran complained of pain in the ankle and that he reported he had twisted his left ankle in December 1974 and again in July 1975. An undated Report of Medical Examination for separation purposes reflects that the Veteran's lower extremities were clinically evaluated as normal. A Report of Medical History dated in November 1979 for separation purposes reflects that the Veteran reported no ankle problems. The Veteran underwent a VA examination in August 2005. He reported an incident in service in which his ankle "went out on him." He reported that he has pain, stiffness, weakness, and occasional swelling and giving way in the ankle. Physical examination revealed only pain on motion and tenderness. X-rays revealed no significant soft tissue or bony abnormality. Following physical examination, the examiner assessed left ankle pain with no diagnosis of a left ankle disability. The examiner specifically found no evidence on physical examination or X-ray of a continued problem attributable to ankle sprain in service. Therefore, the examiner opined that it is less likely as not that the original injury is related to his complaint of ankle pain now. As no current ankle disability has been identified, there may be no grant of service connection. See 38 U.S.C.A. § 1110 (West 2002); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service- connected disease or injury to cases where such incidents have resulted in a disability); see also Brammer, supra. VA is not generally authorized to grant service connection for symptoms alone, without an identified basis for those symptoms. For example, "pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted." Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001); Evans v. West, 12 Vet. App. 22, 31-32 (1998). Alternately, to the extent that the Veteran's statements are asserting continuity of symptoms, the Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board, however, finds that any such argument on the Veteran's part is inconsistent with the other evidence of record. Indeed, while he stated that his disorder began in service, the separation examination was absent of any complaints. Moreover, the post-service evidence does not reflect treatment related to an ankle disorder for many years following active service. The Board has weighed the Veteran's statements as to continuity of symptomatology, to the extent they can be so construed, against the absence of documented complaints or treatment for many years following active duty discharge and finds his recollections as to symptoms experienced in the distant past, made in connection with a claim for benefits, to be less probative. Therefore, continuity has not here been established, either through the competent evidence or through his statements. Next, service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's complaints of ankle pain to active duty, despite his contentions to the contrary. To that end, the Board places significant probative value on the August 2005 VA examination undertaken specifically to address the issue on appeal. At that time, the Veteran reported ankle pain. After a physical examination, the examiner provided no diagnosis and opined that it was less likely than not that the Veteran's ankle complaints were related to service. The examiner reflected that physical examination and X-ray evidence showed no evidence of a continued ankle problem. As there is a preponderance of the evidence against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. Service connection for a left ankle disability is not warranted. ____________________________________________ M. C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs