Citation Nr: 1143025 Decision Date: 11/23/11 Archive Date: 12/06/11 DOCKET NO. 09-29 609 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for chronic rhinitis with eustachian tube dysfunction. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran served on active duty from December 1960 to November 1964. He had additional service with the National Guard and Reserve. He retired from the reserve in March 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared before the undersigned Veteran's Law Judge at a Travel Board Hearing in May 2011. A transcript of that hearing is of record. The issues of entitlement to service connection for tinnitus, and rhinitis with eustachian tube dysfunction 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. FINDING OF FACT The Veteran has not been diagnosed with a bilateral hearing loss for VA rating purposes. CONCLUSION OF LAW A bilateral hearing loss was not incurred in or aggravated by active duty service, and a sensorineural hearing loss may not be presumed to have been so incurred. 38 U.S.C.A. §§ 101(24), 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102 , 3.159, 3.303, 3.307, 3.309, 3.385 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in pre-rating correspondence dated January 2008 of the information and evidence needed to substantiate and complete his claim, to include information regarding how disability evaluations and effective dates are assigned. VA fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate the claim, and as warranted by law, providing a VA examination. The Board notes that not all of the Veteran's National Guard and Reserve records have been associated with the claim file. However, as the claim is being denied on the basis that the claimed disability is not currently shown any missing service records would not have an impact on the outcome of the decision and the Veteran is not prejudiced. Finally, there is not a scintilla of evidence that any VA error in notifying or assisting the appellant reasonably affects the fairness of this adjudication. Indeed, the appellant has not suggested that such an error, prejudicial or otherwise, exists. Hence, the case is ready for adjudication. Legal Criteria and Analysis Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The absence of any one element will result in the denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427 (2006). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status will not always constitute competent medical evidence. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The Veteran contends that he currently suffers from bilateral impaired hearing, which was caused by noise exposure during service. Impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz, in ISO units, is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Sensorineural hearing loss, if manifest to a degree of 10 percent within one year after separation from active duty, may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Veteran has not been diagnosed with bilateral hearing loss for VA rating purposes. At his November 1964 separation examination the Veteran whispered voice test was 15/15. His ears and drums were reported to be normal. At a private audiological examination of October 2007, the Veteran's puretone threshold values for the right ear were 10 decibels at 500 hertz, 5 decibels at 1000 hertz, 5 decibels at 2000 hertz, 15 decibels at 3000 hertz, and 30 decibels at 4000 hertz. Left ear puretone values were 15 decibels at 500 hertz, 10 decibels at 1000 hertz, 0 decibels at 2000 hertz, 20 decibels at 3000 hertz, and 20 decibels at 4000 hertz. Word recognition scores were 100 percent bilaterally. At a VA examination in June 2008, the Veteran's puretone threshold values for the right ear were 0 decibels at 500 hertz, 5 decibels at 1000 hertz, 5 decibels at 2000 hertz, 5 decibels at 3000 hertz, and 10 decibels at 4000 hertz. Left ear puretone values were 0 decibels at 500 hertz, 5 decibels at 1000 hertz, 0 decibels at 2000 hertz, 10 decibels at 3000 hertz, and 20 decibels at 4000 hertz. Word recognition scores were 100 percent bilaterally. The Veteran's hearing loss is within normal limits for VA rating purposes, and he does not have a current hearing disability for VA rating purposes. 38 C.F.R. § 3.385. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in a disability. 38 U.S.C.A. §§ 1110, 1131. Hence, where as here, competent evidence does not establish the disability for which service connection is sought, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the instant case, the claim for service connection for bilateral hearing loss must be denied because the first essential criterion for the grant of service connection-competent evidence of the disability for which service connection is sought-is not met. ORDER Entitlement to service connection for a bilateral hearing loss is denied. REMAND The Veteran claims entitlement to service connection for tinnitus and rhinitis with eustachian tube dysfunction. After a review of the claim files, the Board finds that additional development is needed prior to deciding the claims. The record reflects that the Veteran served for several decades in the National Guard and Reserve. As such, he likely would have had multiple periods of active duty for training and/or inactive duty for training. He is attributing his tinnitus as having been incurred during Reserve service. Of record are multiple personnel records showing some periods of service. However, it is unclear from the records as to the status of the appellant during these periods of service and it is not clear whether all periods of active duty for training or inactive duty for training have been identified. These records are necessary because in order for the appellant to achieve "Veteran" status for the disabilities he alleges were incurred during his service in the National Guard or Reserve and be eligible for service connection for a disability claimed during his inactive service, the record must establish that he was disabled during active duty for training due to a disease or injury incurred or aggravated in the line of duty; or he was disabled from an injury incurred or aggravated during inactive duty training. See Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Notably, the only service treatment records for any periods of active duty for training or inactive duty for training service are 1976 records regarding a back injury. (The Veteran is service connected for a back disorder.) No other service treatment records during any periods of active duty for training or inactive duty for training have been associated with the claim file. These records must be obtained. In regard to the claim of entitlement to service connection for rhinitis with eustachian tube dysfunction. Private treatment records of October 2007 show a diagnosis of chronic rhinitis with eustachian tube dysfunction. The Veteran alleged at his May 2011 hearing that his rhinitis is related to service connected residuals of a nasal bridge bone fracture. The Veteran, however, has not been afforded a VA examination to determine if the currently diagnosed rhinitis with eustachian tube dysfunction is related to that disorder. Hence, an examination must be provided. 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. The RO must attempt to confirm all of the Veteran's National Guard and/or Reserve service dates, to include each and every period of active duty for training and inactive duty for training. The RO must attempt to obtain all service treatment records for each of the confirmed periods of service. Efforts to secure this information must include contact with the National Personnel Records Center, the pertinent state National Guard headquarters, and all pertinent National Guard and Reserve units. If these efforts are not successful in securing the actual dates of each period of active duty for training and inactive duty for training, the RO must contact the Defense Finance and Accounting Service and request that they attempt to provide the dates of the appellant's service. A retirement point chart is not sufficient. All efforts to confirm the dates of service and obtain the service treatment records should be fully documented, and the appellant's National Guard and/or Reserve units, as well as the National Personnel Records Center must provide a negative response if records are not available. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. The RO should schedule the Veteran for an appropriate VA examination for the claimed rhinitis with eustachian tube dysfunction to determine the nature and etiology of the disability. The examiner is to diagnose any rhinitis with Eustachian tube dysfunction or any other nasal disability present. For each diagnosed respiratory or nasal disorder the examiner is to opine whether it is at least as likely as not that the disorder is due to an injury or disease incurred or aggravated in service, including the 1961 in-service nasal bridge fracture. The examiner must address whether rhinitis and/or an Eustachian tube dysfunction are aggravated by the service connected nasal fracture. All opinions expressed must be accompanied by a complete and full written rationale with evidence in the claims file and sound medical principles. 3. The Veteran is to be notified that it is his responsibility to report for all examinations and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2011). 4. The RO should then readjudicate the Veteran's claims of entitlement to service connection for tinnitus, and rhinitis with eustachian tube dysfunction. If any claim is not granted to the Veteran's satisfaction, the RO must send him and his representative a Supplemental Statement of the Case and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration. 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 particularly includes submitting medical evidence showing that it is at least as likely as not that tinnitus and/or chronic rhinitis with an Eustachian tube dysfunction are related to service to include residuals of a nasal fracture. ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs