Citation Nr: 1300626 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 10-34 171 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for status post removal pterygium, claimed as a left eye condition. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Berry, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1966 to June 1969. He was awarded the Purple Heart Medal and Combat Infantry Badge. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in December 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, North Dakota. The Veteran testified during a hearing before the undersigned Veterans Law Judge in June 2011. A transcript of the hearing is of record. The Board notes that in June 2011 the Veteran submitted a lay statement from his wife with a waiver of initial RO consideration. The Board accepts the additional evidence for inclusion into the record on appeal. See 38 C.F.R. § 20.1304 (2012). FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran's current bilateral hearing loss disability is not related to active military service. 2. The preponderance of the evidence shows that the Veteran's current tinnitus is not related to active military service. 3. The Veteran served in the Republic of Vietnam during the Vietnam Era and the medical evidence of record shows that the Veteran has a current diagnosis of pterygium of the left eye (status post removal); however, pterygium is not a disease associated with exposure to certain herbicide agents as enumerated under 38 C.F.R. § 3.309(e). 2. The preponderance of the evidence shows that the Veteran's pterygium of the left eye is not related to the Veteran's in-service exposure to herbicides or any other incident or disease in service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012). 2. Tinnitus was not incurred in or aggravated by active military service. 38 U.S.C.A. §1110 (West 2002); 38 C.F.R. § 3.303 (2012). 3. A left eye disability was not incurred in or aggravated by active military service, nor may it be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 1112 (West 2002); 38 C.F.R §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) imposes a duty on the United States Department of Veterans Affairs (VA) to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b). This notice must 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 v. Principi, 18 Vet. App. 112 (2004). With regard to claims for service connection for a disability, the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of the claim: (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). Thus, upon receipt of an application for a service-connection claim, VA must review the information and the evidence presented with the claim and provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. After careful review of the claims folder, the Board finds that a September 2009 VCAA letter satisfied the duty to notify provisions prior to the initial unfavorable AOJ decision. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this regard, the September 2009 letter advised the Veteran what information and evidence was needed to substantiate his service connection claims for hearing loss, tinnitus and a left eye condition. The Veteran was informed how VA determines the disability rating and effective date if his claims are granted. The letter also informed the Veteran of his and VA's respective duties for obtaining evidence. The letter requested that he provide enough information for the RO to request records from any sources of information and evidence identified by the Veteran. Regarding VA's duty to assist, the Board finds that VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim and providing a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment records, VA treatment records, a VA audiological examination report dated in November 2009, lay statements from the Veteran and transcript of the June 2011 Board hearing. The November 2009 VA examination report reflects that the examiner conducted a review of the Veteran's claims file in addition to obtaining an oral history and providing a physical evaluation of the Veteran. Following the above, the examiner provided an assessment of the Veteran's current disability and an etiology opinion. The examiner included an explanation for his opinion, which appears to be based on both on the medical and lay evidence of record and medical literature. Accordingly, the Board concludes that the examination is adequate for rating purposes. The Board acknowledges that the Veteran was not provided with a VA examination with respect to his service connection claim for a left eye condition. VA has a duty to provide a VA examination when the record lacks evidence to decide the veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. See 38 C.F.R. § 3.159(2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, there is no competent evidence of record that indicates the Veteran's left eye disorder may be associated with active military service to include herbicide exposure. Thus, the Veteran has not presented sufficient evidence to trigger VA's duty to provide an examination. There is no other indication in the file that there are additional relevant records available that have not yet been obtained. Therefore, the Board finds that all relevant facts have been developed properly and sufficiently in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claims. II. Merits of the Claims for Service Connection The Veteran contends that he currently has bilateral hearing loss and tinnitus that is related to acoustic trauma in military service. Specifically, he asserts that he experienced acoustic trauma from exposure to gunfire and explosions during combat. The Veteran also asserts that the pterygium in his left eye is related to active military service to include exposure to Agent Orange. Service connection may be granted to a veteran for a disability resulting from a disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for a disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, to establish service connection for a claimed disorder, there must be (1) medical evidence of 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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Pond v. West, 12 Vet. App. 341, 346 (1999); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). Such determination is based on an analysis of all the evidence of record and evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1, 8 (1999). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Hickson element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; 38 C.F.R. § 3.303(b). Hearing Loss For purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 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 (2012). Additionally, the Court has held that the threshold for normal hearing is from 0 to 20 decibels, and that threshold levels above 20 decibels indicate at least some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 155 (1993) citing MEDICAL DIAGNOSIS & TREATMENT 110-11 (Stephen A. Schroeder et al. eds., 1988). In assessing the Veteran's service connection claim for hearing loss, the Board must first determine whether the Veteran has a current hearing loss disability under VA regulations. As noted above, hearing loss disability is determined for VA purposes using the criteria provided under 38 C.F.R. § 3.385. A November 2009 VA audiology examination report shows auditory thresholds higher than 40 decibels (dB) at 4000 Hertz (Hz) in both ears. The examiner determined that the audio evaluation revealed normal hearing through 3000 Hz and then drops to moderate loss levels. Thus, the evidence of record reveals that the Veteran has current bilateral hearing loss disability. The Veteran contends that he injured his ears in military service due to loud noise exposure during combat. The Board observes that the Veteran's DD Form 214 shows that the Veteran was awarded a Purple Heart and Combat Infantry Badge. Therefore, the Board concludes that the evidence of record shows that the Veteran engaged in combat. The Board finds that the Veteran's statements in regard to his noise exposure are credible and consistent with his military service. See 38 U.S.C.A. § 1154(b) (West 2002). Accordingly, the Board finds that the evidence shows the Veteran was exposed to loud noises during military service. Nonetheless, injury during service does not, by itself, warrant service connection. Rather, there must be competent evidence that the Veteran has a current disability that was incurred in service. 38 C.F.R. § 3.303. The Veteran's service treatment records do not reveal that the Veteran had any complaint or finding of hearing loss during active military service. The May 1969 separation examination shows that the Veteran's ears were evaluated as normal and his hearing was within normal limits in both ears. See Hensley, 5 Vet. App. at 155 and November 2009 VA examination. Furthermore, the Veteran denied currently having or that he ever had hearing loss in the May 1969 report of medical history form. Thus, there is no medical evidence of hearing loss during service. The Board notes that the Veteran does not contend and the evidence does not show that the Veteran had hearing loss in service with a continuity of symptomatology since service. Accordingly, the threshold question is whether there is sufficient medical evidence to establish an etiological link between the Veteran's current hearing loss disability and his active military service. In this regard, the Veteran was provided with a VA examination in November 2009. The Veteran reported noise exposure during active military service to include during basic training, jump school and during a year in infantry in Vietnam. The Veteran worked as a social worker assistant, teacher and a mail carrier after military service. The Veteran had recreational noise exposure through some use of power tools, drills and occasional circular saw. The examiner determined that the Veteran's hearing loss is not caused by, the result of or aggravated by his active military service. She explained that hearing at the time of discharge was within normal limits and unchanged from his entrance examination. She noted that the Institute of Medicine Report on noise exposure in the military concluded that based on current knowledge, noise induced hearing loss occurs immediately and there is no scientific support for delayed onset of noise induced hearing loss weeks, months or years after exposure. The Board concludes that this opinion is probative and persuasive as the examiner reviewed the Veteran's claims file including his service treatment records and provided a clear rationale based on the evidence of record and medical literature. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). Furthermore, the record does not contain any competent medical evidence or opinion that would indicate the Veteran's bilateral hearing loss is related to the loud noise exposure in service. The Veteran contends that his bilateral hearing loss is related to military service. The Board notes that, although under certain circumstances, under 38 U.S.C.A. § 1154, lay evidence can serve to support a claim for service connection, lay assertions regarding medical matters such as an opinion whether a disability is related to an injury or disease in service has no probative value when a lay person is not competent to offer such medical opinion. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran is not a licensed health care professional; therefore, the lay evidence offered by the Veteran is not competent medical evidence and does not prove a relationship between the Veteran's current hearing loss disorder and exposure to loud noise during military service. The only competent medical evidence of record asserts that the Veteran's bilateral hearing loss is not related to his military service. As the probative evidence of record does not establish a relationship between the Veteran's current hearing loss and his period of active military service, the Board finds that the preponderance of the evidence weighs against the claim and service connection for bilateral hearing loss is not warranted. In reaching this conclusion, the Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. Tinnitus The Board finds that the medical evidence of record establishes that the Veteran currently has tinnitus. In this regard, a November 2009 VA examination report shows that the Veteran had a current complaint of tinnitus. The Veteran is considered competent to report the observable manifestations of his claimed disability. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (a veteran is competent to testify as to the presence of tinnitus); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, the Board finds him to be credible in this regard. The Veteran contends that he injured his ears in military service due to loud noise during combat. As discussed above, the Board finds that loud noise exposure would be consistent with the Veteran serving in combat in Vietnam. Accordingly, the Board finds that the Veteran's history of exposure to loud noise is credible. The Board observes that the Veteran does not contend and the evidence does not otherwise show that his tinnitus began during military service. In this regard, the Veteran's service treatment records do not reveal that the Veteran had complained of or sought treatment for tinnitus during active military service. The May 1969 separation examination shows that the Veteran's ears were evaluated as normal. During the November 2009 VA examination, the Veteran reported that the symptoms of intermittent ringing in his ears began approximately five to six years and it has now progressed to a constant ringing in his ears. Thus, there is no evidence or allegation of tinnitus being present during service, or continuity of symptomatology since service. With respect to whether the Veteran's tinnitus, initially demonstrated years after service, is etiologically related to noise exposure during active military service, the Veteran was provided with a VA examination in November 2009. The examiner determined that it is less likely that the Veteran's current tinnitus is caused by, the result of or aggravated by his active military service. She explained that she found no mention of tinnitus in his records during active military service or in his earlier claims. She also cited a medical book on tinnitus that found "[t]here is no research evidence to support a claim of delayed-onset tinnitus." The Board concludes that this opinion is highly probative and persuasive as the examiner reviewed the Veteran's claims file including his service treatment records and provided a clear rationale based on the evidence of record, including the Veteran's lay statements and medical literature. See Nieves- Rodriguez, 22 Vet. App. at 304. Furthermore, the record does not contain any competent medical evidence or opinion that would indicate the Veteran's tinnitus is related to the loud noise exposure in service. The Veteran contends that his tinnitus is related to military service. The Board notes that lay evidence can serve to support a claim for service connection, lay assertions regarding medical matters such as an opinion whether a disability is related to an injury or disease in service has no probative value when a lay person is not competent to offer such medical opinion. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran is not a licensed health care professional; therefore, the lay evidence offered by the Veteran is not competent medical evidence and does not prove a relationship between the Veteran's current tinnitus and exposure to loud noise during military service. As discussed above, the only competent medical evidence of record asserts that the Veteran's tinnitus is not related to his military service. Based on the foregoing, the Board finds that the record does not contain any competent medical, or competent and credible lay, evidence linking the Veteran's current tinnitus to military service or any evidence indicating a continuity of symptoms since military service. Thus, the preponderance of the evidence is against a finding that the Veteran has tinnitus related to service or any incident thereof. Accordingly, entitlement to service connection for tinnitus is not warranted. Pterygium (claimed as a left eye condition) A January 2010 VA treatment record shows that the Veteran has a diagnosis of pterygium of the left eye. A November 2010 VA treatment record reveals that the pterygium of the left eye was removed in March 2010 and that he has had monocular diplopia/blurred vision in the left eye since surgery. The left eye has a residual corneal scar that extends into the visual axis. The optometrist determined that the monocular diplopia and reduced vision is secondary to the scar. Thus, there is evidence of a current left eye disability. With respect to the Veteran's assertion that his pterygium is due to herbicide exposure, the Veteran must show the following in order to establish presumptive service connection for a disease associated with exposure to herbicide agents: (1) that he served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975; (2) that he currently suffers from a disease associated with exposure to certain herbicide agents enumerated under § 3.309(e); and (3) that the current disease process manifested to a degree of 10 percent or more within the specific time period prescribed in § 3.307(a)(6)(ii). 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2012). The following diseases are associated with herbicide exposure for purposes of the presumption: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, Ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), All chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). The Veteran's service records show that the Veteran was stationed in Vietnam in 1968. Thus, the evidence shows that the Veteran had service in the Republic of Vietnam during the applicable presumptive period and therefore exposure to an herbicide agent is conceded. See 38 U.S.C.A. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). Nonetheless, pterygium is not among the statutorily enumerated diseases set forth above for which presumptive service connection is available for veterans exposed to herbicide agents during active service. Accordingly, the Veteran's pterygium of the left eye is not entitled to the presumption of service connection due to exposure to Agent Orange. Notwithstanding the above, the United States Court of Appeals for the Federal Circuit has held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d F.3d 1039, 1043-44 (Fed. Cir. 1994). The Board must not only determine whether the Veteran has a disability which is recognized by VA as being etiologically related to exposure to herbicides, but must also determine whether his disability is otherwise the result of active service. Thus, the fact that the Veteran may not meet the requirements of a presumptive regulation does not preclude him from establishing, in the alternative, service connection by way of proof of actual direct causation. A review of the Veteran's service treatment records shows that the Veteran did not complain of or receive treatment for a left eye problem during service. Service treatment records reveal that his eyes were evaluated as normal in the May 1969 separation examination. The Veteran also denied having now or ever having eye trouble in the report of medical history that accompanied the separation examination. Furthermore, the Board observes that the Veteran does not contend that he had pterygium during service. Specifically, the Veteran testified that he had noticed a little bubble in his left eye a couple years after service. See Hearing Transcript at 9. He further clarified that he noticed the left eye problem about three years after service. Hearing Transcript at 11. The first medical evidence that indicates that the Veteran has a left eye condition, pterygium, is in a January 2010 VA treatment record. As there is no evidence of pterygium shown in service, the threshold question is whether there is sufficient medical evidence to establish an etiological link between the Veteran's current pterygium and his active military service. There is no competent medical opinion of record linking the Veteran's pterygium to herbicide exposure or any other incident during active military service. The Board notes that the Veteran contends that his pterygium of the left eye is related to herbicide exposure. Lay persons can provide an account of observable symptoms. See Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). However, lay assertions regarding medical matters such as an opinion whether a disability is related to an incident, injury or disease in service has no probative value because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The Veteran is not a licensed health care professional; therefore, the lay evidence offered by the Veteran is not competent medical evidence and does not prove a relationship between the Veteran's pterygium and exposure to herbicides during military service. Furthermore, the Veteran does not contend and the record does not show that the onset of the Veteran's pterygium of the left eye was during active military service with a continuity of symptomatology since service. Specifically, the Veteran reported that the onset of his pterygium was two to three years after service. See Hearing Transcript at 9 and 11. Based on the foregoing, the Board finds that the preponderance of the evidence shows that the Veteran's pterygium of the left eye is not related to military service. As the preponderance of the evidence is against the Veteran's claim and the benefit of the doubt doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, entitlement to service connection for pterygium of the left eye is not warranted. ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for a left disability is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs