Citation Nr: 1237781 Decision Date: 11/05/12 Archive Date: 11/09/12 DOCKET NO. 09-46 759 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for left ear hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for a respiratory disorder, claimed as due to in-service dust and asbestos exposure. 5. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from April 1961 to April 1964. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, in June 2008 and November 2009. The June 2008 rating decision denied entitlement to a TDIU and service connection for tinnitus, a back disorder and a respiratory disorder. The Veteran limited his appeal to the claims for service connection. See October 2009 VA Form 9. However, the RO included the issue of entitlement to a TDIU in supplemental statements of the case dated February 2012 and March 2012, and also certified that issue to the Board on appeal. See April 2012 VA Form 8. For these reasons, the requirement that there be a timely substantive appeal is waived as it pertains to the claim for entitlement to a TDIU. See Percy v. Shinseki, 23 Vet. App. 37 (2009). Service connection for bilateral hearing loss was denied in the November 2009 rating decision. The Veteran presented testimony at a personal hearing before a Decision Review Officer (DRO) in July 2010. A transcript is of record. The claim for service connection for a back disorder was subsequently granted in a December 2011 rating decision. As such, that issue is no longer before the Board for appellate review. The Veteran also presented testimony at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in May 2012. A transcript is of record. FINDINGS OF FACT 1. The Veteran does not exhibit hearing loss in his right ear that meets 38 C.F.R. § 3.385. 2. The Board resolves reasonable doubt in the Veteran's favor by finding that his left ear hearing loss and tinnitus are etiologically related to active service. 3. In May 2012, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he did not wish to appeal the claims for service connection for a respiratory disorder, claimed as due to in-service dust and asbestos exposure, and entitlement to a TDIU. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C.A. §§ 1131, 1112 (West 2002) 38 C.F.R. §§ 3.303, 3.385 (2012). 2. The criteria for service connection for left ear hearing loss have been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2012). 3. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 4. The criteria for withdrawal of a Substantive Appeal regarding the issue of entitlement to service connection for a respiratory disorder, claimed as due to in-service dust and asbestos exposure, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 5. The criteria for withdrawal of a Substantive Appeal regarding the issue of entitlement to a TDIU have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duties to notify and assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). There is no need to discuss whether VA has satisfied its duties to notify and assist as they pertain to the withdrawn claims for service connection for a respiratory disorder, claimed as due to in-service dust and asbestos exposure, and entitlement to a TDIU, and since the Board is granting service connection for left ear hearing loss and tinnitus, any error committed with respect to either the duty to notify or the duty to assist as it pertains to those claims was harmless and will not be further discussed. Notice regarding the claim for service connection for right ear hearing loss was provided to the Veteran in an October 2009 letter. Accordingly, the duty to notify has been fulfilled. VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. This duty has also been met, as the Veteran's service, VA and private treatment records have been associated with the claims folder. VA also scheduled the Veteran for appropriate VA examinations in conjunction with his claim and made unsuccessful efforts to obtain the Veteran's records from the Social Security Administration, but was informed that no records existed because they had been destroyed. Based on the foregoing, all known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The record does not suggest the existence of additional, pertinent evidence that has not been obtained. For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or assistance is necessary, and deciding the appeal at this time is not prejudicial to the Veteran. Withdrawals Under 38 U.S.C.A. § 7105 (West 2002), 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. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In May 2012, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he did not wish to appeal the claims for service connection for a respiratory disorder, claimed as due to in-service dust and asbestos exposure, and entitlement to a TDIU. See hearing transcript. As the Veteran has withdrawn his appeal concerning these claims, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal concerning these claims and they are dismissed. Service connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Service connection may also be established by chronicity and continuity of symptomatology. See 38 C.F.R. § 3.303(b). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 495-96 (1997)). "[S]ymptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496. In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 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). Impaired hearing will be considered a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz (Hz) is 40 decibels (db) or greater; or the auditory thresholds for at least three of these frequencies are 26 db or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2012). 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). The Veteran seeks service connection for bilateral hearing loss and tinnitus, which he contends are the result of his in-service exposure to acoustic trauma while working as a combat engineer and participating in heavy construction and demolition without the use of hearing protection. He contends his exposure to in-service acoustic trauma far exceeded any post-service noise exposure and asserts that he wore mandatory hearing protection after service. See VA Form 21-526 received March 2008; VA Forms 21-4138 dated May 2009, January 2010 and March 2012; VA Forms 9 dated October 2009 and October 2010; July 2010 and May 2012 hearing transcripts. Exposure to acoustic trauma during service has been conceded. See e.g., February 2012 supplemental statement of the case; May 2012 hearing transcript. As such, the question to be resolved in this case is whether any current bilateral hearing loss and/or tinnitus are etiologically related to service. In a March 2012 statement, the Veteran's brother reports that their parents complained about the Veteran ignoring them when they talked to him after his discharge from service and that he found the Veteran was not hearing well after his discharge and that he is still the same at present. See VA Form 21-4138 from D.S. The Board finds this statement both competent and credible. The Veteran underwent a VA audio examination in November 2009, at which time his claims folder was available for review. The examiner noted that he passed the whispered voice test for each ear at 15 feet in April 1961; that a February 1964 audiometric evaluation revealed hearing threshold levels to be within normal limits for each ear for the evaluated frequency range 250 Hz through 8000 Hz; and that service treatment records were silent for complaint of tinnitus. The Veteran reported bilateral hearing loss, onset dating back to service, and bilateral, constant tinnitus, which he described as a ringing in his ears, with an onset occurring during military service. He reported service as a combat engineer with military noise exposure from heavy equipment, generators, jackhammers and 50 caliber machine guns, without the use of hearing protection. The Veteran reported working as a carpenter for most of his civilian occupation with noise exposure from drills, saws, and ammo-guns, with the use of hearing protection. He indicated that while shooting metal plates into the concrete of tunnels, head muffs had been used. The Veteran also reported recreational noise exposure in the form of seasonal hunting with gunfire and the use of earplugs. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 10 30 25 LEFT 15 10 50 50 35 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 percent in the left ear. A Puretone Stenger test was performed due to the presenting asymmetry of the hearing loss, which was negative for nonorganic hearing loss. The examiner indicated that the Veteran's complaint of bilateral tinnitus is as likely as not a symptom associated with his presenting bilateral sensorineural hearing loss and that after review of the Veteran's service treatment records, it was verified that at the time of separation from service, hearing threshold levels had been within normal limits for each ear for the assessed frequency range such that it is less likely than not that the current bilateral sensorineural hearing loss was due to the Veteran's claimed in-service acoustic trauma. The examiner indicated that the etiology of the Veteran's present hearing loss may be related to his civilian occupational and recreational noise exposure, as well as the aging process. Another VA examination was conducted in January 2012, at which time the Veteran's claims folder was available for review. Authorized audiological evaluation revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 30 30 LEFT 15 15 40 40 30 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 96 percent in the left ear. The test results were valid for rating purposes and the use of speech discrimination scores was appropriate for this Veteran. The examiner determined that the Veteran's hearing loss was not at least as likely as not caused by or a result of an event in military service. The rationale was that, as reported on previous examination, hearing sensitivity was recorded to be well within normal limits at the time of his military discharge physical. The examiner also determined that it is less likely than not that the Veteran's tinnitus was caused by or a result of military noise exposure. The rationale again was that the Veteran's hearing sensitivity was normal at the time of military discharge. The examiner also noted the absence of complaints of tinnitus at the time of discharge and the Veteran's lifetime of civilian occupational and recreational noise exposure. See hearing loss and tinnitus Disability Benefits Questionnaire (DBQ). The Veteran must have a current disability in order to support a claim for service connection. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires evidence of a relationship between a current disability and events in service or an injury or disease incurred therein). Audiometric testing during the November 2009 and January 2012 VA examinations reveals that the Veteran does not exhibit hearing loss in the right ear that meets VA standards. As such, service connection is not warranted for right ear hearing loss. See 38 C.F.R. § 3.385 (2012). The opinions provided by the VA examiners in November 2009 and January 2012 are not adequate for adjudicative purposes as it appears that the examiners' opinions were based solely on a determination that the Veteran had normal hearing at separation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Hensley v. Brown, 5 Vet. App. 155 (1993). The Veteran has consistently reported a decrease in hearing acuity since service, which is corroborated by the statement submitted by his brother, and that the onset of tinnitus was during service. The Veteran has also reported that he has continued to experience decreased hearing acuity and tinnitus since that time and that he used hearing protection when exposed to any post-service noise. The Board finds these assertions to be both competent and credible. See 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994); see also Jandreau, 492 F.3d at 1372; Charles v. Principi, 16 Vet. App 370, 374 (2002). Based on the foregoing, and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for left ear hearing loss and tinnitus is warranted as etiologically related to active service. 38 C.F.R. §§ 3.102, 3.303. ORDER The issue of entitlement to service connection for a respiratory disorder, claimed as due to in-service dust and asbestos exposure, is dismissed. The issue of entitlement to a TDIU is dismissed. The issue of entitlement to service connection for right ear hearing loss is denied. The issue of entitlement to service connection for left ear hearing loss is granted. The issue of entitlement to service connection for tinnitus is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs