Citation Nr: 1100469 Decision Date: 01/05/11 Archive Date: 01/14/11 DOCKET NO. 09-07 463 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for asbestosis. 4. Entitlement to an increased evaluation for bipolar disorder with hypomania (formerly, schizophrenia), currently evaluated as 50 percent disabling. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran had active service from July 1957 to June 1961 and from August 1963 to May 1971, when he was placed on the Temporary Disability Retired List. The Veteran was removed from the Temporary Disability Retired List and officially discharged in February 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA) issued in April 2008. The Veteran requested a Travel Board hearing. The requested hearing was conducted by the undersigned Veterans Law Judge in December 2009. The claim of entitlement to service connection for asbestosis 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. FINDINGS OF FACT 1. The Veteran reported onset of hearing loss and tinnitus in 1977. 2. The Veteran and his providers attributed 1977 complaints of hearing loss and tinnitus to post-service employment at the Long Beach Naval Shipyard, in conditions of "intense" noise exposure. 3. The preponderance of the evidence establishes that the Veteran did not incur hearing loss or tinnitus in service, within a presumptive period following service, or as a result of exposure to hazardous noise during service. 4. At a December 2009 hearing before the Board, and prior to the promulgation of a decision, the Veteran requested withdrawal of the issue of entitlement to an increased evaluation in excess of 50 percent for a service-connected psychiatric disability. CONCLUSIONS OF LAW 1. The Veteran's bilateral hearing loss was not incurred during or as a result of active service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154, 5103, 5103A, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2010). 2. The Veteran's tinnitus was not incurred during or as a result of active service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154, 5103, 5103A, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2010). 3. The criteria for withdrawal of the Veteran's Substantive Appeal on the issue of increased evaluation in excess of 50 percent for a service-connected psychiatric disability have been met. 38 U.S.C.A. §§ 5103(a), 5103A, 7105(b)(2), (d)(5) (West 2002 & Supp. 2010); 38 C.F.R. §§ 20.202, 20.204(b)(c) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in November 2007, prior to the initial RO decision in this matter. The letter informed the Veteran of the criteria for service connection, advised him of the evidence required to substantiate the claim, and of his and VA's respective duties for obtaining evidence. In 2006, the Court of Appeals for Veterans Claims ruled that VA must inform claimants of all elements of a service connection claim, including how VA assigns disability ratings and how an effective date is established. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice complying with this requirement was also included in the November 2007 letter to the Veteran. Next, VA has a duty to assist the Veteran in the development of his claim. This duty includes assisting him in the procurement of pertinent medical records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the RO has obtained the Veteran's service treatment records. Although personnel records reflecting actual assignments have not been obtained, the accuracy of the Veteran's statements that he served aboard an aircraft carrier and was exposed to ship and aircraft noise has been assumed. Post- service VA and private treatment records, including records related to employment, are associated with the claims files. The Veteran has been afforded VA audiology examinations. The Veteran has reported that he is receiving benefits from the Social Security Administration (SSA). SSA records were requested. SSA responded that the records have been destroyed. The SSA response is associated with the claims file, and the Veteran has been notified that the records are unavailable. Accordingly, as it appears that all obtainable evidence has been associated with the claims file, the Board notes that the evidence already of record is adequate to allow resolution of the appeal. 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). All necessary development has been accomplished. Appellate review does not result in prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Entitlement to Service Connection for Bilateral Hearing Loss 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, 1131. 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). 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 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Sensorineural hearing loss, however, may be presumed to have been incurred in service, if it becomes manifest to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a); 1131, 1137 38 C.F.R. §§ 3.307(a), 3.309(a). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In order to grant a service connection claim, the Board must find medical evidence that the Veteran currently suffers from a disability, medical evidence (or, in certain circumstances, lay evidence) of an in-service incurrence or aggravation of that disability, and medical evidence of a nexus between the present disability and the disability claimed in service. Hickson v. West, 12 Vet. App 247, 253 (1999) (citing 38 C.F.R. § 3.303(a)). In the present case, the Veteran contends that the bilateral hearing loss and tinnitus from which he now suffers is causally related to his active duty noise exposure. Facts The Veteran's July 1957 induction examination and his June 1961 separation examination, and August 1963 re-enlistment examination, August 1967 periodic examination, included whisper tests of the Veteran's hearing. None of these examinations disclosed any hearing deficit. The examinations after 1963 disclose that the Veteran's military occupational specialty was data processing (DP). The Veteran has reported that he was assigned to an aircraft carrier, and was exposure to aircraft noise, during his first period of service, form 1957 to 1961. There is no contradictory evidence of record, and the credibility of the Veteran's report is assumed. The summary of the Veteran's hospitalized in service, in December 1970, reflects that he reported that he reported that his head was throbbing and he was afraid it would blow up under the increased pressure. He reported whistling sounds in his ears. He plugged his ears with cotton to increase his "stability" and to block out derogatory comments made by other patients. No diagnosis of hearing loss or tinnitus was assigned. Post-service psychiatric treatment records reflect that the Veteran complied of marked sensitivity to noise. The Veteran reported that exposure to noise made him anxious and angry. A diagnosis of noise-induced hearing loss was assigned in January 1977. A July 1978 audiometric examination disclosed pure tone thresholds in the right ear at the tested frequencies of 500, 1000, 2000, 3,000, and 4000 Hertz were 25, 20, 20, 30, and 50 decibels, respectively. In the left ear the pure tone thresholds were -20, 20, 20, 35, and 50 decibels. In March 1980, a VA medical opinion was rendered indicating that the Veteran's 1978 audiologic examination and a current audiological examination disclosed that the Veteran had normal hearing below 4,000 Hz and a slight loss of hearing at 4,000 Hz. In April 1980, the Veteran's treating physician provided a letter to the Long Beach (California) Naval Shipyard advising the shipyard that continual exposure to loud noise was stressful to the Veteran. The provider recommended that the Veteran be transferred to employment where continual exposure to loud noise was not a factor. In an April 1981 evaluation report, MB, MD, Ph.D., stated that the Veteran was very sensitive to loud noise, and that noise caused the Veteran to be anxious. Dr. B. stated that the Veteran had also developed tinnitus. Dr. B. described the noise at the Naval Shipyard, where the Veteran worked as a pipefitter, as "intense," including noise from jackhammers, air compressors, diesel engines, and turbines. Dr. B. stated that the Veteran worked at a shipyard from 1972 to 1980, and first noted hearing loss and "noises" in both ears in 1977. In November 2007, the Veteran sought service connection for hearing loss and tinnitus. The Veteran indicated that he performed aircraft maintenance during service on an aircraft carrier. The examiner who conducted VA audiology examination in December 2007 described the Veteran's noise exposure history as an aircraft mechanic in service and in construction at a Naval Shipyard post-service. The Veteran stated that he had tinnitus since he got out of the Navy and stated working in a shipyard. The diagnosis was sensorineural hearing loss and subjective tinnitus "since service." The examiner also stated that no opinion was requested. In March 2008, the examiner was asked to provide an opinion as to whether the Veteran's hearing loss and tinnitus were related to his service. The examiner opined that it was less than likely that hearing loss was related to service. The examiner did note that the Veteran's hearing was relatively unchanged from 2006 to 2008, suggesting that aging was not the sole basis for the Veteran's hearing loss. At his Travel Board hearing, the Veteran testified that he first noticed hearing loss and tinnitus in service, and that those complaints remained chronic and continuous after service. 1. Claim for service connection for hearing loss The Veteran contended, in his 2007 statement and his 2007 VA examination that he noticed hearing loss in service. The clinical records associated with the Veteran's service reflect that, although the Veteran reported "whistling" in his ears, this complaint was assumed to be attributable to his psychiatric disorder. The Board finds it significant that no diagnosis of hearing loss was assigned. Clinical records dated in 1977 clearly establish that the Veteran reported in 1977 that he first noticed hearing loss in 1977. The Veteran's statements in 1978 through 1981, as noted by private treating providers, reflect that the Veteran's complaint of "whistling" in the ears was not noted during treatment from 1970 to 1977. The providers noted that the Veteran reported that he first noticed hearing loss in 1977. The Board finds it significant that no audiologist or provider who treated the Veteran for hearing loss or complaints of sensitivity to loud noise during the period from 1977 to 1981 noted any report by the Veteran of noise exposure to aircraft or engines during service during the Veteran's first enlistment (1957 to 1961). MB, MD, noted in a lengthy April 1981 evaluation that the only noise exposure history provided by the Veteran prior to 1972 was use of firearms beginning at age 16 and during basic training. Dr. MB specifically concluded that the Veteran "did not have any difficulty with his ears" prior to employment at the Long Beach Naval Shipyard beginning in 1972. (Emphasis in the original, page 10, report of MB, MD, Ph.D.). The Board finds the descriptions of the "intense" noise at that employment, including noise from jack hammers and noise the Veteran experienced while driving the "vactor," a truck specially fitted with pressurized water rods for cleaning storm drains, particularly significant. The clinical records dated from 1977 to 1981 are contemporaneous to the Veteran's complaints of hearing loss at that time. Because these records were completed at the time the Veteran first sought treatment for hearing loss, these records are of greater weight than the statements and testimony provided to support the 2007 claim for service connection. The Board is particularly persuaded that the Veteran's contemporaneous statement to an examiner who conducted April 1981 examination was accurate. At that time, the Veteran stated that he began to notice hearing loss in 1977. In particular, the records dated in 1977 through 1981 contradict the statements and testimony provided by the Veteran in connection with his 2007 claim. The Board finds that the Veteran's contentions and statements that he noted hearing loss in service are not credible, in light of the contradictory and contemporaneously provided evidence dated from 1977 through 1981. As noted above, the clinicians who saw the Veteran from 1978 to 1981 described in detail the intense noise exposure at the Naval Shipyard and the Veteran's response to that noise. The Board finds that, to the extent that the report of the December 2007 VA examination is favorable to the Veteran, that report is not accurate. In particular, the Veteran reported that he was exposed to jet aircraft noise in service, and reported "some unprotected" exposure to hazardous noise of police work and construction work in a shipyard. There is no notation that the examiner who conducted the 2007 VA audiology examination reviewed the evidence of the Veteran's reports of exposure to post-service hazardous noise exposure beginning in 1972. Therefore, to the extent that the 2007 VA examination report could be considered favorable to the Veteran's claim, that report is not persuasive, since it does not include a notation that the evidence from 1977 to 1981 was reported by the Veteran or reviewed by the examiner. The examiner who conducted the March 2008 VA audiology examination concluded, in part, that the Veteran's current hearing loss was related, in part, to the aging process. The Board notes that his rationale is of minimal persuasive value, since the examiner did not discuss the audiology reports conducted in 1977 through 1981. However, since this examiner did not base any specific conclusion on an inaccurate report from the Veteran, the Board finds this report of VA examination somewhat more persuasive than the 2007 VA examination report. Thus, the unfavorable 2008 VA audiology report is of greater weight than the report of the 2007 VA examination. The Veteran's testimony at his December 2009 Travel Board hearing did not reflect the information he provided in 1977 to 1981 about his post-service noise exposure, the audiometric examinations conducted in 1977, 1978, and 1980, or the opinions rendered in 1977 to 1981. The Board finds that the Veteran's Travel Board testimony is inaccurate and is not credible. The clinical evidence from 1977 to 1981 remains the most persuasive evidence of record. The evidence from that period firmly establishes that the Veteran hi8mslef, during the period from 1977 to 1981, reported several times that his hearing loss was first noted in early 1977, after several years of exposure to "intense" post-service noise. The preponderance of the accurate and credible evidence is against the claim. The evidence is not in equipoise, and there is no reasonable doubt which may be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b). The claim for service connection for hearing loss is denied. 2. Claim for service connection for tinnitus As noted above, the Veteran reported "whistling" in his ears in service, among other symptoms, when a psychotic break was diagnoses in service. However, no diagnosis of tinnitus was assigned. The Board finds it significant that, after the Veteran's psychiatric disorder was treated, there was no further notation of the complaint of "whistling" in the ears. Post-service, in 1977, the Veteran sought evaluation of his hearing. At that time, he reported that he had begun to have ringing in the ears beginning in January 1977. The Veteran reported at this time that the ringing in the ears began following his exposure to intense noise, including noise from jackhammers, diesel engines, a the noise of a "vactor truck," a truck fitted with pressurized water equipment to clean out storm drains and catch basins. In April 1981, MB, MD, who evaluated the Veteran for his psychiatric disorder, determined that the Veteran was very sensitive to loud noise, and that noise caused the Veteran to be anxious. The examiner stated that the Veteran had also developed tinnitus. The examiner described the noise at the Naval Shipyard, where the Veteran worked as a pipefitter, as "intense," including noise from jackhammers, air compressors, diesel engines, and turbines. The Board finds it particularly significant that the April 1981 report of MB, MD, states, after discussion of the Veteran's complaints of noises in the ear during his initial psychotic break in service in 1970 and the Veteran's later sensitivity to noise, that the Veteran "did not" have any trouble with the current complaints of noises in the ears until after post-service noise exposure during employment. Dr. B. assigned a diagnosis of tinnitus, and the report reflects that he attributed that diagnosis to the Veteran's post-service employment exposure to hazardous noise. The Board is particularly persuaded that the Veteran's contemporaneous statement to an examiner who conducted April 1981 examination was accurate. At that time, the Veteran stated that he first began to notice the noises in the ear which were present in 1981 in 1977. To the extent that the Veteran testified that tinnitus noted in service while on an aircraft was chronic and continuous thereafter, the 1981 treatment record directly contradicts the Veteran's testimony. Rather, the treatment records dated in 1977 to 1981 reflect that, although the Veteran reported "whistling" in the ears in service, that problem was not chronic and continuous thereafter. Rather, chronic and continuous tinnitus was noted in 1977. The Board finds that the Veteran's contentions and statements that onset of current tinnitus began during a period of service are not credible, in light of the contradictory evidence dated from 1977 through 1981. Clinical evidence based on the Veteran's report of chronic tinnitus since exposure to aircraft noise during service is of no probative value. Consequently, the only probative medical evidence of record, that is, medical evidence not based on an inaccurate report by the Veteran, is unfavorable to the Veteran. The preponderance of the accurate and credible evidence is against the claim. The evidence is not in equipoise, and there is no reasonable doubt which may be resolved in the Veteran's favor. The claim for service connection for tinnitus is denied. III. Withdrawal of substantive appeal A review of the record reflects that the Veteran disagreed with an April 2008 rating decision which denied an increase in the 50 percent evaluation assigned for the Veteran's service-connected psychiatric disability. The RO issued a statement of the case in February 2009 on this issue, and the Veteran perfected an appeal in March 2009. During his December 2009 Travel Board hearing, the Veteran requested to withdraw his appeal of this issue. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. The Veteran has withdrawn his appeal with respect to his claim for a disability evaluation in excess of 50 percent for a service-connected psychiatric disability. Therefore, there remain no allegations of error of fact or law for appellate consideration as to the appropriate evaluation. Accordingly, that portion of the appeal is dismissed. ORDER The appeal for service connection for hearing loss is denied. The appeal for service connection for tinnitus is denied. The appeal for an increased evaluation for service-connected psychiatric disability is dismissed. REMAND The Veteran testified that he had recently been treated by a VA physician, Dr. L., who had assigned a diagnosis of asbestosis. No VA clinical records from Dr. L. are associated with the claims files, and no VA clinical records more recent than February 2008 are associated with the claims files. The clinical records associated with the claims files appear to reference reports of pulmonary functions testing that are not associated with the claims files. Since the Veteran testified that more recent VA clinical records substantiate his claim, Remand for those records is required. Accordingly, the case is REMANDED for the following action: 1. Obtain all VA outpatient treatment records from January 2008 to the present. Obtain a list of the Veteran's VA appointments, and review the clinical records obtained against the list of appointments to assure that all records have been associated with the claims files. Associate all reports of radiologic examination of any type and all reports of pulmonary function, especially records of pulmonary evaluation dated from January 2008 to the present. 2. Request that the VA reviewer who provided a March 2008 opinion again review the claims file, or afford the Veteran pulmonary examination, if the prior reviewer is unavailable. The reviewer should be asked to again address the Veteran's claim that he has asbestosis. The reviewer should be asked to provide an updated response to the following question, in light of the additional clinical evidence obtained since March 2008. The reviewer or examiner should address the following: (a) It is appropriate to assign a diagnosis of asbestosis? (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran has a pulmonary disorder as a result of his exposure to asbestos in service? (c) If the Veteran has a pulmonary disorder which is a result of exposure to asbestos, does that disorder result in any disability, that is, symptoms or impairment of respiratory function? The rationale for all opinions expressed should be provided in a legible report. If any requested opinion cannot be provided without resort to pure speculation, the examiner should so indicate. The examiner should state the reason why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). 3. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, readjudicate the claim on appeal. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review, if appropriate. 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. 2009). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs