Citation Nr: 1118262	
Decision Date: 05/12/11    Archive Date: 05/17/11

DOCKET NO.  08-39 420	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUES

1.  Entitlement to service connection for a hearing loss disability.

2.  Entitlement to service connection for a gastrointestinal disability, claimed as secondary to service connected posttraumatic stress disorder (PTSD).

3.  Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Oregon Department of Veterans' Affairs


ATTORNEY FOR THE BOARD

J. Hager, Counsel



INTRODUCTION

The Veteran served on active duty from April 1968 to April 1970.

These matters come before the Board of Veterans' Appeals (Board) from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon.  In that decision, the RO denied entitlement to service connection for hearing loss, tinnitus, and a gastrointestinal disability.

The issue of entitlement to service connection for tinnitus 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 does not have a hearing loss disability of either ear.

2.  The Veteran does not have a gastrointestinal disability, gastrointestinal symptoms did not manifest in service or for many years thereafter, and such symptoms are unrelated to service or to service-connected PTSD.


CONCLUSIONS OF LAW

1.  A hearing loss disability was not incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2010).

2.  A gastrointestinal disability was not incurred in or aggravated by service, or as secondary to service-connected PTSD.  38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (Wes 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2010).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VCAA

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010)) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010).

Under the VCAA, VA 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 request that the claimant provide any evidence in his possession that pertains to the claim.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

In a September 2006 pre-rating letter, the RO notified the Veteran of the evidence needed to substantiate the claims for entitlement to service connection for hearing loss and a gastrointestinal disability.  The RO did not explain secondary service connection in the "What the Evidence Must Show" section of the letter, but indicated on the first page that the claim was for service connection for gastrointestinal condition claimed as secondary to PTSD.  Moreover, the Veteran indicated in his written submissions that he was claiming a gastrointestinal disability due to PTSD.  Consequently, as the RO conveyed and the Veteran understood the secondary theory with regard to the claim for service connection for a gastrointestinal disability, any error in this regard was harmless and does not require a remand for new VCAA notice.  See 38 C.F.R. § 19.9(a)(1) (remand required only when further action "is essential for a proper appellate decision").  The Board also notes that the primary basis of the denial of the claim for service connection for a gastrointestinal disability is the lack of a current disability.

The September 2006 letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that the Veteran would provide.  Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002).

For claims pending before VA on or after May 30, 2008, 38 C.F.R. 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim.  73 Fed. Reg. 23,353 (Apr. 30, 2008).  In any event, the September 2006 letter complied with this requirement.

The Veteran has substantiated his status as a veteran.  The Veteran was notified of all other elements of the Dingess notice, including the disability-rating and effective-date elements of his claims, in the September 2006 letter.

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).  

In this case, VA obtained the Veteran's service treatment records (STRs), service personnel records, and all of the identified post-service VA treatment records.  The Veteran was also provided with a March 2007 VA audiological examination.  This examination report was adequate because it included audiometric readings sufficient to determine whether the Veteran had a current hearing loss disability as defined in the applicable regulation, 38 C.F.R. § 3.385, and the examiner, who reviewed the STRs, explained the reasons for his conclusion that any hearing loss was unrelated to service.  See Stefl  v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (a medical examiner must support his conclusion with an analysis that is adequate for the Board to consider and weigh against contrary opinions).  The RO did not afford the Veteran a VA examination with regard to his claim for entitlement to service connection for a gastrointestinal disability.  Under the VCAA, VA must provide an examination with regard to claims for disability compensation when there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).  The Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service, and the threshold for finding that the disability (or symptoms of a disability) may be associated with service is low.  McLendon, 20 Vet. App. at 83; Locklear v. Nicholson, 20 Vet. App. 410, 419 (2006).  As explained below, the only evidence that the Veteran's gastrointestinal symptoms may be associated with PTSD or service are the Veteran's own conclusory generalized lay statements suggesting such a nexus, which are insufficient to warrant an examination.  Waters v. Shinseki, 601 F.3d 1274, 1278-1279 (Fed. Cir. 2010).

For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements.  The claims for entitlement to service connection for hearing loss disability and gastrointestinal disability are thus ready to be considered on the merits.

Analysis
 
As an initial matter, the Board notes that the Veteran did not engage in combat with the enemy.  VA has consistently defined "engaged in combat with the enemy" to require a Veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality.  See VAOPGCPREC 12-99 (October 18, 1999).  While he was granted entitlement to service connection for PTSD based on verified stressors of coming under enemy rocket attack, there is no evidence or awards indicating that the Veteran met the above definition.  In any event, 38 U.S.C.A. § 1154(b) does not eliminate the need for evidence of a nexus; it merely reduces, for veterans who have engaged in combat with the enemy, the burden of presenting evidence of incurrence or aggravation of an injury or disease in service, and the Veteran's claims are not being denied based on the absence of in-service incurrence or aggravation or injury.  See Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996) ("Section 1154(b) does not create a statutory presumption that a combat veteran's alleged disease or injury is service-connected.").  Therefore, the combat provisions of 38 U.S.C.A. § 1154 are not applicable to the analysis below.

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009).

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology.  See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology.  Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b).

Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including sensor neural hearing loss and peptic ulcers, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a).

Whether service connection is claimed on direct, presumptive, or any other basis, a necessary element for establishing such a claim is the existence of a current disability.  See Degmetich v. Brown, 104 F.3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998).  The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim.  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

Hearing Loss 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 is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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 claim for entitlement to service connection for hearing loss disability must be denied because he has not have such disability as defined in the applicable regulation since he filed his June 2006 claim or at any time.

The only audiometric readings in the claims file are those contained in the March 2007 VA audiological examination report.  On the March 2007 audiological evaluation pure tone thresholds, in decibels, were as follows:







HERTZ



500
1000
2000
3000
4000
RIGHT
20
25
20
30
35
LEFT
20
20
15
20
30

Maryland CNC speech recognition scores were 100 percent in each ear.

The above audiometric test results reflect that the Veteran's scores do not meet the definition of hearing loss disability because the auditory threshold was less than 40 decibels at each frequency of each ear, and neither ear had auditory thresholds of 26 decibels or greater in at least three frequencies (the right had two such frequencies and the left had one).  Moreover, speech recognition scores were greater than 94 percent in each ear.  While the March 2007 VA examiner diagnosed sensorineural hearing loss, this diagnosis indicates only that some of the pure tone thresholds were greater than the threshold for normal hearing of 0 to 20 decibels.  See Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  Such a diagnosis does not alter the fact that the audiometric readings reflect that any hearing abnormalities did not meet VA's regulatory definition of what constitutes a hearing loss disability.  As the only audiometric evidence indicates that the Veteran does not have a current hearing loss disability in either ear, service connection must be denied because of the absence of a current disability.

The Veteran argued in his substantive appeal that the examination was inadequate because the examiner rushed him through, did not ask about ringing in the ears, the testing location was unprofessional dirty, the examiner was rude, did not ask many questions, and there is evidence of the Veteran's hearing loss on his discharge physical and his military occupation specialty of combat engineer is proof of acoustic trauma.  None of the Veteran's allegations warrant a different result in this case.  The Board acknowledges that the Veteran suffered acoustic trauma, which was consistent with the circumstances of his service.  However, in the absence of a current disability, such acoustic trauma is irrelevant.  Moreover, the Veteran did not specifically challenge the the audiometric testing, which is the basis for the Board's decision above.  His assertion that he was rushed does not specifically relate to audiometric testing and does not contain a reason to question the results based on the speed with which the test was performed.  The Board also notes that the Veteran's contention that there was hearing loss noted on his discharge physical appears to be inaccurate, as the February 1970 separation examination audiometric readings appear normal, as reflected in the following pure tone thresholds, in decibels:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
N/A
0
LEFT
0
0
0
N/A
0

The Board also notes that while a June 1969 STR indicates that the Veteran complained of loss of hearing in the right ear, the impression was impacted cerumen.  Moreover, while the Veteran indicated that hearing loss began in service, to the extent that he indicated or implied that he experienced continuity of hearing loss symptomatology, this testimony is contradicted by the February 1970 report of medical history, in which he indicated that he did not have and had never had ear trouble.  The Board finds the contemporaneous statement to be of greater weight than those made during the course of an appeal for benefits, and therefore finds that testimony indicating continuity of hearing loss symptomatology is not credible.  See Pond v. West, 12 Vet. App. 341, 345 (1999); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest may affect the credibility of testimony).

In addition, the March 2007 VA examiner reviewed the STRs and explained that the configuration of the Veteran's mild hearing loss was not consistent with the effects of noise exposure and that the degree of hearing loss in each ear could be explained as resulting from the effects of the normal aging process.  As the March 2007 VA examiner explained the reasons for his conclusion, his opinion is entitled to substantial probative weight.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning).

To the extent that the Veteran has offered a contrary opinion indicating that he meets the definition of a hearing loss disability or it is related to service, veterans are competent to opine as to observations as well as some matters of etiology and diagnosis.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).  See also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau).  However, VA's decision to require specific audiometric readings in order to establish a hearing loss disability underscores that this is the type of medical matter as to which lay testimony is not competent.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis).  See also Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant").  To the extent that the Veteran is competent to testify regarding the diagnosis or etiology of hearing loss, the specific and reasoned opinion of the audiological examiner is of greater probative weight than the general lay assertions of the Veteran.  Thus, entitlement to service connection for a hearing loss disability must be denied.

Gastrointestinal Disability

Disability which is proximately due to, or results from, another disease or injury for which service connection has been granted shall be considered a part of the original condition.  38 C.F.R. § 3.310(a).  Any increase in severity of a no service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the no service-connected disease, will be service connected.  However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury.  38 C.F.R. § 3.310(b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). 

In his June 2006 claim and substantive appeal, the Veteran claimed that he had a gastrointestinal disability that was due to his PTSD.  

The only reference to gastrointestinal symptoms in the post-service VA treatment records appears to be in a March 2005 VA review of systems, reflecting that the Veteran indicated he had daily heartburn.  However, a gastrointestinal/abdominal examination revealed that the abdomen was soft and flat, with active bowel sounds in all quadrants and no mass or hepatosplenomegaly.  Subsequent VA treatment records contain diagnoses of multiple disabilities, including rash, groin pain diagnosed as inguinal neuralgia, and patient medical history of hip arthralgia, basal cell carcinoma, and insomnia, but no diagnosis of, or reference to, gastrointestinal disability.  

As to the Veteran's contentions, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See Barr v. Nicholson, 21 Vet. App. at 308-09 (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d at 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. at 374 (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot).  That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases.  See Woehlaert v. Nicholson, supra.

In this case, the disabilities of the gastrointestinal system, as listed in 38 C.F.R. § 4.114, concern internal organs that are not capable of lay observation.  The symptoms reported by the Veteran could well be attributable to a disorder affecting a different body system, such as an endocrine or cardiovascular disorder.  Moreover, even if one were to accept that the Veteran has a diagnosis of a gastrointestinal disorder, the question of whether such disorder was related to a service-connected disability such as PTSD involves secondary causation, not continuously observable symptoms, and the Veteran's opinion as to this specialized medical question is not a competent opinion because of his lack of medical training, credentials, or other expertise.  See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge").                 

In the absence of competent evidence to support the Veteran's claim, a VA examination addressing the nature and etiology of the claimed gastrointestinal disorder is not "necessary" under 38 C.F.R. § 3.159(c)(4) because there is no reasonable possibility that an examination or an opinion would lead to findings favorable to the claim.
       
Accordingly, entitlement to service connection for a gastrointestinal disability, to include as secondary to the service-connected PTSD, must be denied.

Conclusion

For the foregoing reasons, the preponderance of the evidence is against the claims of entitlement to service connection for hearing loss disability and gastrointestinal disability.  The benefit-of-the-doubt doctrine is therefore not for application, and the claims must be denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009).


ORDER

Entitlement to service connection for a hearing loss disability is denied.

Entitlement to service connection for a gastrointestinal disability, claimed as secondary to service connected PTSD, is denied.





REMAND

Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  In this case, the March 2007 VA audiological examiner explained the reasons for his conclusion that the Veteran's hearing loss is unrelated to service but did not offer any rationale for his conclusion that the Veteran's tinnitus was unrelated to service.  This absence of reasoning renders the examination inadequate with regard to the claim for entitlement to service connection for tinnitus.  See Nieves-Rodriguez, 22 Vet. App. at 304.  Given the Veteran's complaints regarding the examination and the examiner, a remand for a new examination by a different VA examiner is warranted.

Accordingly, the claim for entitlement to service connection for tinnitus is REMANDED for the following action:

1.  The Veteran should be afforded a VA ear examination, conducted by an appropriate examiner who has reviewed the entire claims file.  Based upon the examination findings, a review of the claims file, and an assessment of the Veteran's lay contentions, the examiner should indicate whether it is at least as likely as not (50 percent probability or more) that the Veteran's tinnitus is related to his acoustic trauma or any other incident in service.  This opinion must be supported by a complete rationale in a typewritten report.

2.  The claim for service connection for tinnitus must then be readjudicated.  If the determination remains unfavorable, the Veteran and his representative must be furnished with a Supplemental Statement of the Case and given an opportunity to respond before this case is returned to the Board.

The Veteran has the right to submit additional evidence and argument on this matter.  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. 2010).


______________________________________________
A. C. MACKENZIE
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs