Citation Nr: 1300641	
Decision Date: 01/08/13    Archive Date: 01/16/13

DOCKET NO.  10-22 928	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

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

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Oklahoma Department of Veterans Affairs


ATTORNEY FOR THE BOARD

E. I. Velez, Counsel





INTRODUCTION

The Veteran served on active duty from August 1995 to August 2008.  In March 2009, the Department of Veterans Affairs (VA) determined that his period of active service from August 1995 to July 16, 2007, was to be considered honorable for VA compensation purposes and that his period of service from July 17, 2007 to August 7, 2008 was dishonorable for VA compensation purposes.  Thus, the character of discharge for this latter period of service constitutes a bar to VA compensation benefits based on injuries or disabilities originating as a result of that period.  See 38 C.F.R. § 3.12(a) (2012). 

This case comes before the Board of Veterans' Appeals (the Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. 

The claim was previously remanded by the Board in June 2011for additional development.  

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.


FINDING OF FACT

The Veteran does not have a bilateral hearing loss disability for VA purposes. 


CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss disability have not been met.  38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). 

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. 

The notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, defined to 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.  See Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). 

In the case at hand, the record reflects that the originating agency provided the Veteran with the notice required under the VCAA and under Dingess by a letter mailed in March 2009.  Subsequently, in June 2009, the RO adjudicated the Veteran's claims in the first instance.  Accordingly, with respect to VCAA notice, there is no prejudice to the Veteran in the Board's proceeding with the issuance of a decision on the merits as to his service-connection claims for a bilateral hearing loss disability and tinnitus. 

Concerning the VA's duty to assist, the Board notes that the Veteran's service treatment records, post-service VA treatment record, and his lay statements of argument have been obtained.  Pertinently, the Veteran has not indicated that any other private or VA treatment reports relevant to his hearing loss and tinnitus claims currently exist. 

With respect to the July 2011 VA audiological examination report, which addressed the current nature and etiology of the Veteran's claimed hearing loss, the Board concludes that the findings contained therein are more than adequate to make an informed decision on the merits of each claim.  The report of examination reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate examination, and rendered an appropriate diagnosis consistent with the remainder of the evidence of record.  The examination report included audiological testing of the Veteran, to include puretone threshold readings as well as speech recognition scores.  The Board therefore concludes that this July 2011 examination report is adequate for rating purposes.  See 38 C.F.R. § 4.2 (2012); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 

Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations or opinions with respect to the issues on appeal have been met.  38 C.F.R. § 3.159(c) (4). 

In short, the Board has carefully considered the provisions of the VCAA, in light of the record on appeal and, for the reasons expressed above, finds that the development of these issue has been consistent with said provisions.  The Board is satisfied that any procedural errors in the originating agency's development and consideration of the claim were insignificant and nonprejudicial to the Veteran. 

The Veteran has been accorded ample opportunity to present evidence and argument in support of his claims.  See 38 C.F.R. § 3.103 (2012).  He has retained the services of a representative, and declined an opportunity for a personal hearing.  Accordingly, the Board will address the claims on appeal. 

Legal Criteria

In general, service connection may be granted for disability or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303.  Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service.  38 C.F.R. § 3.303(d) (2012). 

In order to establish service connection for the claimed disorder on a direct basis, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus or relationship between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999). 

Essential to the award of service connection is the first Hickson element, existence of a disability.  Without it, service connection cannot be granted.  See Brammer v. Derwinski, 3 Vet. App. 233, 225 (1992) (noting that service connection presupposes a current diagnosis of the claimed disability); see also Chelte v. Brown, 10 Vet. App. 268 (1997) (observing that a "current disability" means a disability shown by competent medical evidence to exist at the time of the award of service connection).  For certain chronic disorders, including sensorineural hearing loss disability, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). 

Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria.  Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz).  See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). 

The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385 (2012).  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, or 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 (2012). 

When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.  See Hensley, supra. 

When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  See 38 C.F.R. § 3.303(b) (2012). 

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 

Analysis

In essence, the Veteran contends he has a bilateral hearing loss that was caused by acoustic trauma he endured from working as a sonar technician during his active duty military service.  Given the circumstances of his service, the Board has accepted acoustic trauma in service.  

As noted above, in order to establish service connection for the claimed disorders, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the two.  See Hickson, 12 Vet. App. at 253. 

With respect to the Veteran's hearing loss claim, the medical evidence of record does not reflect that the Veteran currently has a bilateral hearing loss disability for VA purposes.  Although the Veteran has alleged reduced hearing bilaterally, the July 2011 VA audiological examination showed normal hearing.  Indeed, audiometric testing yielded the following results in decibels: 




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
10
20
20
LEFT
10
5
15
20
20

Additionally, right ear and left ear Maryland CNC Word List Speech Recognition scores were 98 in the right ear and 94 percent in the left ear.  These scores in and of themselves do not show a current hearing loss disability for VA purposes.  Indeed, the examiner observed that a review of the Veteran's claims folder showed all hearing tests in the military were within normal limits with no significant threshold shifts.  

The Veteran has presented no other medical evidence demonstrating a current hearing loss disability.  In particular, there are no post-service outpatient treatment or other medical records which document the claimed bilateral hearing loss within the Veteran's first year following his separation from service in 2008, or at anytime thereafter.  See 38 C.F.R. § 3.309(a).  The Board adds that the Veteran has had ample opportunity to secure medical evidence in his favor and submit the same to VA. He has not done so.  See 38 U.S.C.A. § 5107(a) (West 2002) (it is a claimant's responsibility to support a claim for VA benefits). 

The Board has no reason to doubt that the Veteran currently experiences trouble hearing.  Indeed, he is competent to testify as to such.  See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  In fact, it was the Veteran's lay assertions that prompted the VA to test the Veteran's claimed hearing loss to see if the symptoms he described actually amounted to a disability for VA purposes.  However, as noted above, the objective evidence does not contain audiological findings consistent with a hearing loss disability under 38 C.F.R. § 3.385.  Moreover, the Veteran, as a lay person, is not competent to opine that any current hearing impairment rises to the level of disability as contemplated by VA regulations.  That is, he is not shown to have the necessary training, expertise, or medical knowledge necessary to render audiometric opinions or findings. 

In the absence of any diagnosed hearing loss, service connection may not be granted.  See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) [service connection cannot be granted if the claimed disability does not exist].  Accordingly, Hickson element (1) has not been met as to the Veteran's hearing loss claim, and it fails on this basis alone. 


ORDER

Service connection for bilateral hearing loss disability is denied.


REMAND

The Veteran argues that he currently has tinnitus which is related to acoustic trauma in service.  After a careful review of the evidence of record, the Board finds that, unfortunately, the claim must be remanded one more time prior to issuing a decision on the appeal.  Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims. 

The Veteran was afforded a VA examination in July 2011.  At the time, he was diagnosed with intermittent tinnitus with a frequency of once a month and duration of a few seconds to a minute.  The examiner opined that tinnitus was not due to exposure to noise in service.  The rationale provided was that there was no mention of tinnitus in the military medical records, and the tinnitus was so infrequent that it is not clinically significant.  

When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  In the absence of in-service evidence of a disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385 ) is not always fatal to a service connection claim.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); see also Hensley v. Brown, 5 Vet. App. 155, 159   (1993). 

The July 2011 examiner provided a rationale for his opinion which relied, in essence, on the absence of any tinnitus in service.  However, as noted, this is not fatal to the Veteran's claim and the existence of tinnitus in service is not the determinative factor in his claim.  Moreover, the Veteran is competent to report symptoms of tinnitus.  Therefore, the Board finds that the July 2011 VA opinion is inadequate for purposes of appellate review and a new opinion is needed prior to deciding the claim.

Accordingly, the case is REMANDED for the following action:

1.  The RO/AMC should obtain a VA medical opinion form a different VA examiner than the one who conducted the July 2011 examination as to the nature and etiology of the Veteran's tinnitus.  The examiner must review the claims file, to include a copy of this remand, and must indicate that review of the claims folder was completed.  He/she must provide an opinion on the following: 

Is any current tinnitus at least as likely as not (50 percent probability or greater) etiologically related to conceded in-service noise exposure (i.e., is the Veteran's complaint of tinnitus consistent with his in-service noise exposure).  
The examiner should consider the Veteran's competent reports of tinnitus and his reported history of such condition. 

The examiner must provide a rationale for any opinion expressed and reconcile any contradictory evidence of record.  In rendering the opinion, the examiner should not resort to mere speculation, but rather should consider that the phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. 

In rendering the above opinions, the examiner is advised that the absence of a disability in-service evidence of a disability is not always fatal to a service connection claim.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). 

2.  After undertaking any additional development deemed necessary and ensuring that the VA examination report obtained as a result of this Remand complies with the instructions set forth herein, readjudicate the Veteran's claim.  If the benefit sought on appeal remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response.  The case should then be returned to the Board for further consideration, if otherwise in order.

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 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. 2012).




______________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs