Citation Nr: 1237451 Decision Date: 11/01/12 Archive Date: 11/09/12 DOCKET NO. 10-16 641 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a low back condition. 4. Entitlement to service connection for a left ankle disability, to include left ankle sprain. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD N. Lee, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1980 to November 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Louis, Missouri. FINDINGS OF FACT 1. The Veteran does not have a current hearing loss disability for VA compensation purposes. 2. Tinnitus was not present in service, or for many years thereafter, and no probative evidence links it to service. 3. While the Veteran sought treatment for lower back pain during service, his contention that he experienced lower back pain continually since service is not credible. 4. No current medical opinion links current back disability to service. 5. There is no probative evidence of a left ankle disability in service or for many years after service; and the only favorable medical opinion linking current disability to service is based on a history that is not considered credible CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1154(a), 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2011). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 1112 (West 2001); 38 C.F.R. § 3.303(a) (2011). 3. The criteria for service connection for a lower back disability have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2011). 4. The criteria for service connection for a left ankle disability, to include chronic left ankle sprain, have not been met. 38 U.S.C.A. §§ 1131, 1153, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper notice 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; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004). This notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006), Pelegrini at 112. VA's notice requirements were satisfied by a letter issued in March 2009, which apprised the Veteran of the information VA would obtain, the information he was responsible for obtaining, and the criteria for establishing service connection. The notice further advised the Veteran of how VA establishes both disability ratings and effective dates. This notice was provided to the Veteran prior to the initial adjudication of his claim. Thus, the Board finds that VA's duty to notify has been satisfied. Regarding VA's duty to assist, the Veteran was afforded the necessary VA audiology and joints examinations in August 2009, and spine examination in May 2012. The Board finds the reports are adequate for evaluation purposes because the examiners conducted a physical examination, reviewed the medical history, and described the disability in sufficient detail so that the Board's evaluation of the claimed disability is an informed determination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, neither the Veteran nor his representative has alleged any deficiency with regard to this examination, nor have they alleged any resulting prejudice. The Veteran was also provided with an opportunity to testify at a hearing before the Board, but he declined. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim. As VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Direct service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that he still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Medical evidence of a "chronic" disease should set forth the physical findings and symptomatology elicited by examination within the applicable period. 38 C.F.R. § 3.307(b); Oris v. Derwinski, 2 Vet. App. 95, 96 (1992). A chronic disease need not be diagnosed during the presumptive period but characteristic manifestations thereof to the required degree must be shown by acceptable medical and lay evidence followed without unreasonable time lapse by definite diagnosis. 38 C.F.R. § 3.307(c); Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). Hearing Loss and Tinnitus The Veteran seeks service connection for bilateral hearing loss and tinnitus. The Veteran contends that he developed bilateral hearing loss and tinnitus as the result of his military noise exposure during his six years of service as a rifleman and helicopter power plant mechanic. The Court has indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). However, for 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 above 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; see also Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes). Service treatment records reflect no complaints, treatment, or findings of hearing loss disability for VA purposes. Likewise, there is no post service record reflecting the presence of a hearing loss disability. When examined for VA purposes in connection with this claim in August 2009, pure tone thresholds, in decibels, at 500, 1000, 2000, 3000 and 4000 Hertz were: 5, 15, 10, 10 and 10 decibels respectively in the right ear, and 25, 25, 15, 15 and 5 decibels respectively in the left ear. Speech recognition was 100 percent in both the right and left ears. The examiner's diagnosis was normal hearing bilaterally. Absent evidence of the claimed disability either in service or since, a basis upon which to grant service connection has not been presented and the appeal in this regard is denied. In reaching this decision, the Board has considered the Veteran's contentions, but as the presence of the disability for purposes of awarding benefits can only be known following conduct of specific medical tests, the Veteran's lay assertions do not provide a probative basis for awarding the benefits sought. With respect to tinnitus, the Veteran's service treatment records show no complaints or findings of tinnitus. Indeed, the Veteran specifically denied ever having any ear trouble in a report of medical history dated in 1983, at which time he also denied having any other illness or injury than those he had already noted in the history. Numerous service treatment records dated in the years thereafter show treatment for a variety of complaints, but are silent for any tinnitus complaints. Examination conducted at service separation in 1987, indicated the ears were normal upon clinical evaluation. The Veteran has not indicated there are any post service treatment records reflecting the presence of tinnitus, but as he was exposed to acoustic trauma in service he was examined for VA purposes in August 2009. At that time he told the examiner his tinnitus started during military service, but the examiner concluded it was unlikely the Veteran's tinnitus was related to service because of the absence of any complaints or findings of hearing loss or tinnitus in service, and normal hearing currently. As implied by the VA examiner, the Board likewise, does not consider the Veteran's contention that he has had tinnitus ever since service to be credible. This is based on the absence of any mention of it in numerous service treatment records, which demonstrate his understanding and willingness to seek out medical attention for his medical problems. Failing to do so with respect to tinnitus complaints belies his current contentions that he had the problem in service. In this regard, the Board also notes that the private treatment records dated in 2011 and 2012 the Veteran submitted do not reflect any tinnitus complaints. Absent any medical evidence of the claimed disability until years after service, or credible lay evidence of its onset in service or chronically thereafter, as well as an uncontroverted medical opinion against the conclusion that any tinnitus is related to service, the greater weight of the evidence is against the claim. Accordingly, service connection for this disability is denied. Low Back Condition The Veteran contends that his current low back disability had its onset in service, The Veteran's service treatment records reflect that he reported experiencing lower back pain June 1980 and February 1981. The February 1981 treatment record shows that he was treated for a low back muscle strain with right sided paravertebral muscular tenderness. However, he had a normal neurological examination and a full range of motion, and was placed on light duty. During a follow-up examination, the Veteran reported that he was feeling better, and the examiner indicated the Veteran's muscle strain was resolving. There are no subsequent service treatment records reflecting the Veteran's complaints of back pain, and in a November 1983 report of medical history provided by the Veteran, he specifically acknowledged a past history of shoulder pain and sinusitis; however, he specifically denied having any present or past history of recurrent back pain. On physical examination, the examiner noted the Veteran's spine and other musculoskeletal systems were normal. Additionally, during his October 1987 separation examination the Veteran's spine and other musculoskeletal systems were also noted as normal. The Veteran reported that around 2004, nearly 17 years after service he was treated for back pain. However, he states that he was unable to obtain these records since his original treating physician's office had closed. The Veteran did not provide any evidence concerning treatment or a diagnosis of his low back condition in response to the March 2009 RO letter requesting information relevant to this claim. The only post-treatment records of record are from his primary care provider (PCP), Dr. Ridley for the period January 2011 through March 2012. The treatment records from Dr. Ridley show that while the Veteran received treatment for multiple conditions, he was not treated for, or diagnosed with any back condition. The Veteran underwent a VA spine examination in June 2012. After reviewing the claims file and performing the necessary tests, the VA examiner diagnosed the Veteran with chronic low back strain and osteoarthritis. Significantly, the examiner stated that without evidence supporting the Veteran's contention of a continuity of symptomatology throughout service and thereafter dating back to his initial diagnosis of muscle strain in February 1981, he could not provide an opinion without resort to mere speculation as to whether his chronic low back strain and osteoarthritis were secondary to military service. After reviewing the evidence of record, the Board does not find that a basis for granting service connection for a low back disorder has been presented. Significantly, the record does not reflect that the Veteran had a continuity of symptoms since being diagnosed with low back muscular strain in service. The Veteran's service treatment records indicate that since initially being treated for lower back strain, his condition improved, and for the remainder of his five years of service there were no additional complaints of, or treatment for any low back conditions. His 1983 reenlistment examination, and his 1987 separation examination show no diagnoses of his suffering from a back condition, and his report of medical history provided as part of his 1983 reenlistment application (over two years after his being treated for low back strain) is silent for any complaints of back pain. In fact, he specifically denied any history of any chronic back pain. While at the 2012 VA examination, the Veteran indicated that he was treated for back pain 8 years before (which would place it in 2004), he did not provide any documentation supporting this assertion, and in any event, it is 17 years after service. Treatment so remote from service would not indicate a chronic back problem since service. Additionally, the medical evidence he did provide from his current physician, Dr. Ridley, did not mention any back disability. Finally, there is no credible medical evidence of a nexus between the Veteran's current back condition and his active service. Even though the Veteran has been diagnosed as having chronic low back strain and osteoarthritis, the evidence does not show these current conditions are related to service. Indeed, the VA examiner stated that without evidence supporting a continuity of symptomatology, he could not provide an opinion without resorting to mere speculation. Given the silence in the service records after 1981, together with the denial of relevant problems in 1983, the Board does not consider any contention of chronic back problems since service to be credible. In view of this, together with the failure of the VA examiner to link current disability to service, the greater weight of the evidence is against the Veteran's claim. Accordingly, the Veteran's appeal is denied. Left Ankle Sprain The Veteran contends that he has a left ankle disability is the result of an injury sustained in service, which required the ankle to be casted. Neither he or his representative have asserted that he has had a continuity of symptomatology since service. Service treatment records reflect no complaints, treatment, or findings of a left ankle disability, including when he was examined in 1983 and in 1987. These records do show treatment for right ankle complaints, and the Veteran is now service connected for a right ankle disability evaluated as 10 percent disabling. The Veteran has not indicated he has received any post service left ankle treatment, and indeed, the private treatment records he provided from Dr. Ridley for the period January 2011 through March 2012, make no mention of left ankle complaints. In connection with this claim, the Veteran was examined for VA purposes in August 2009, at which time he informed the examiner the over the past 8 years (i.e. since 2001) he had a constant dull ache in both his ankles, with effusion that occurred 3 or 4 times a month that would last 3 to 5 days at a time. Examination revealed instability, giving way, pain and weakness with a loss of 5 degrees of plantar flexion. X-rays, however, were normal, and the examiner diagnosed a chronic ankle sprain. Noting he had assumed the Veteran to be a reliable historian, the examiner offered the opinion that this disability was at least as likely as not secondary to injuries sustained on active duty. While the VA examiner considered the Veteran to be a reliable historian, the Board concludes otherwise. This was explained in the discussion of the claims decided above, and this conclusion is re-enforced in the context of this claim. The Veteran's service treatment records reflect numerous entries for various complaints but none for the left ankle, and there were specifically no feet, lower extremity or other musculoskeletal abnormalities noted on separation examination conducted in 1987. Thus, the Board does not consider the medical history the veteran provided regarding his left ankle to be credible, and therefore it is not probative. As the Board does not find the Veteran's history credible, the medical opinion based on that history is not afforded any weight. This leaves the most probative evidence, the Veteran's service treatment records and the private records he submitted, showing no left ankle disability. Evidence that fails to reflect any pertinent disability until decades after service does not provide a basis for an award of service connection. Accordingly, this appeal is denied. ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. Service connection for low back pain is denied. Service connection for a left ankle disability is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs