Citation Nr: 1301174 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 09-49 223 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a left elbow disability. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran served on active duty in the Army Reserves from November 1967 to October 1969, with additional service in the Army National Guard from October 1970 to May 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO), which confirmed and continued the previous denial of service connection for bilateral hearing loss and denied service connection for tinnitus and a left elbow disability. A review of the record reveals that service connection for tinnitus was established in a December 2010 rating decision. Thus, as the benefits sought have been awarded in full, that issue is no longer before the Board. In January 2011, the Veteran presented testimony relevant to this appeal before the undersigned at a hearing held at the local RO. A transcript of the hearing is associated with the record. Additional argument and evidence were received from the Veteran on the day of the hearing and accompanied by a waiver of his right to initial RO consideration of the evidence. 38 C.F.R. §§ 19.9, 20.1304(c). Following the Board hearing, the record was held open for 60 days in order to allow the Veteran the opportunity to submit additional evidence in support of his appeal. Although no evidence was received from the Veteran within the 60-day period, he has since provided additional evidence pertinent to his appeal and has waived his right to its initial consideration by the agency of original jurisdiction (AOJ). Accordingly, the Board will consider the new evidence in the first instance when evaluating the issues on appeal. Id. The Board has reviewed the Veteran's physical claims file, as well as his electronic file through the "Virtual VA" system, to ensure a complete review of the evidence in this case. FINDINGS OF FACT 1. The Veteran currently has bilateral hearing loss and, resolving all reasonable doubt in favor of the Veteran, his hearing loss is attributable to his active military service. 2. No disability of the left elbow has been present during the pendency of this claim. CONCLUSIONS OF LAW 1. The Veteran's bilateral hearing loss is due to active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2012). 2. The criteria for service connection for a left elbow disability have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his 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); 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)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. Regarding the Veteran's claimed bilateral hearing loss, the evidence currently of record is sufficient to substantiate his claim of entitlement to service connection for bilateral hearing loss. Therefore, no further development is required. Regarding the Veteran's claimed left elbow disability, prior to the initial denial of this claim, the RO advised the Veteran of what the evidence must show to establish entitlement to service-connected compensation benefits in a notice letter sent in September 2008. The RO also explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of his claim. The RO further described what evidence that the Veteran should provide in support of his claim. Moreover, the RO explained how VA determines the disability rating and effective date of a disability once service connection has been established, which satisfied Dingess notice requirements. Because the Veteran was provided with proper notice with respect to his claim by way of the September 2008 pre-adjudication notice letter, the Board concludes that VA's duty to notify has been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Moreover, the Veteran was provided with copies of the above rating decision, the SOC, and the SSOC, which include discussion of the facts of the claim, pertinent laws and regulations, notification of the bases for the decision, and a summary of the evidence considered to reach the decision. Regarding VA's statutory duty to assist in claims development, the Board notes that the Veteran's service treatment records (STRs) are included in the record. In addition, post-service treatment records adequately identified as relevant to the claim have been submitted or otherwise obtained, to the extent possible, and are associated with the record. Additional treatment records found in the Veteran's electronic folder through Virtual VA are essentially duplicative of evidence already contained in the physical claims file and considered by the RO. Furthermore, the Veteran was afforded with a VA joints examination in July 2010 which is deemed adequate for the purposes of this adjudication. In this regard, the Board notes that while the examiner indicated that the Veteran had a "clinical and radiological normal right elbow," it is clear that the findings made in the examination are pertinent to the left elbow and an X-ray examination of the left elbow revealed no significant bony abnormality. The Board believes that the reference to the "right elbow" is a typographical error and is not significant enough to render the July 2010 report inadequate for adjudication purposes. The Veteran has not made the RO or the Board aware of any other evidence relevant to his appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim adjudicated herein. In view of the foregoing, the Board will proceed with appellate review. II. 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, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements 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; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Certain chronic diseases, including arthritis and sensorineural hearing loss, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection may be granted for any 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) (2012). Active military service includes any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21) and (24) (West 2002); 38 C.F.R. § 3.6(a) and (d) (2012). It follows that service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training, or from injury incurred or aggravated while performing inactive duty for training. 38 U.S.C.A. §§ 101(24) ,106, 1131. Active duty for training is defined, in part, as full-time duty in the Armed Forces performed by Reserves or National Guard members for training purposes. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Inactive duty for training is generally duty (other than full-time duty) prescribed for Reserves or performed by a member of the National Guard of any state. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Annual training is an example of active duty for training while weekend drills are inactive duty. VA's Office of General Counsel has defined "injury" as harm resulting from an external trauma, while "disease" is defined as some type of internal infection or degenerative process. VAOPGCPREC 04-2002 (May 14, 2002). Bilateral hearing loss At the outset, the Board notes that service connection for bilateral hearing loss was denied in unappealed November 1987 rating decision. However, in October 2008, the Veteran submitted relevant official service department records that existed, but had not previously been associated with the claims folder. These records include a September 1969 separation examination with audiometric results and audiometric results from October 1966 and January 1967 examinations that are relevant to the Veteran's claim, because they show a decrease in the Veteran's hearing acuity since his first period of active service. As such, VA must reconsider the Veteran's claim for entitlement to service connection for bilateral hearing loss without regard to the finality of the November 1987 rating decision. 38 C.F.R. § 3.156(c) (2012). The Veteran contends that he has hearing loss that began during active service in 1968. Notably, his Form DD-214 reflects a military occupational specialty (MOS) of field artillery unit commander. 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 the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Audiological testing from the Veteran's first period of service in the Army Reserves from November 1967 to October 1969 is devoid of any evidence of hearing loss in the left or right ear. Audiological testing performed during the Veteran's subsequent service in the Army National Guard from October 1970 to May 1983 includes 4-year periodic examinations conducted in October 1973, October 1977, and October 1981 which revealed findings which are insufficient for demonstrating hearing loss that is required for VA compensation purposes. See 38 C.F.R. § 3.385. However, an April 1986 audiogram, as reported on a July 1986 quadrennial physical examination, shows that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 0 25 LEFT 0 0 0 40 60 These findings reveal normal hearing in the right ear and left ear hearing loss as required for VA compensation purposes. See 38 C.F.R. § 3.385. A June 1989 military service audiogram shows that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT - 0 0 0 25 LEFT - 0 0 35 60 These findings reveal left ear hearing loss as required for VA compensation purposes. See 38 C.F.R. § 3.385. The Veteran was afforded a VA audiological examination in August 2010, at which time the Veteran's chief complaint was that had an onset of hearing loss and tinnitus during service in the field artillery in Germany from 1967 to 1969 and possibly during basic training on the gun range in 1967. He reported that after certain rounds would go off, he experienced temporary hearing loss which would gradually return after each episode. During service, he had acoustic trauma from gunfire, artillery, and explosions without the benefit of hearing protection. He denied occupational noise exposure and cited occasional recreational noise exposure during shooting and hunting with hearing protection. On review of the Veteran's STRs, the examiner noted normal hearing bilaterally from 500-6000 Hertz in June 1966 and from 500-4000 Hertz in December 1966. She noted that there was no audiogram on separation from active duty. She noted that Reserves audiograms showing hearing loss dated October 1981 showed normal hearing from 500-4000 Hertz with moderate hearing loss at 6000 Hertz in the right ear; the left ear showed normal hearing loss from 500-4000 Hertz with mild hearing loss at 6000 Hertz. She noted that the July 1986 audiogram showed normal hearing from 500-4000 Hertz with moderate hearing loss at 6000 Hertz in the right ear, the left ear showed normal hearing from 500-2000 Hertz with mild hearing loss at 3000 Hertz and moderate hearing loss at 4000-6000 Hertz. The audiologist noted that although there was no audiogram from separation from active duty, an audiogram conducted 4 years after separation from active service showed normal hearing with no significant change within normal limits noted. On audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 15 20 60 LEFT 10 10 20 55 60 Speech audiometry revealed speech recognition ability of 94 percent in both ears. The Veteran was diagnosed with bilateral high frequency sensorineural hearing loss. While the examiner related his tinnitus to service on the basis of his lay statement and no objective test for the presence of tinnitus and the reported onset of tinnitus during service after episodes of noise exposure, she opined that it was less likely as not that his hearing loss was caused by or a result of military noise exposure. The rationale was that there was no audiogram conducted at separation from active duty in 1969 and a 1973 audiogram showed normal hearing four years after separation from active duty and did not represent any significant change within normal limits. Further, an IOM (Institute of Medicine) report revealed no significant data to support delayed onset hearing loss due to noise exposure. The audiologist concluded that it is less likely as not that the Veteran's current hearing loss is related to his active duty military exposure. In January 2011, the Veteran credibly testified that he was exposed to acoustic trauma during his first period of active duty from 1966 to 1970 without hearing protection. He testified that during service in the Reserves, with the exception of summer camp for the National Guard, he was not around guns. He stated that during tank training at Fort Knox in March and April of 1967, he fired main battle guns from the M-48 Patton tank and that he also served outside of the tank during additional firing at which time he first experienced a temporary hearing loss. The Veteran testified that he was exposed to additional acoustic trauma as an officer in Candidate School when he fired 105-towed Howitzers and 155 Howitzers (small lightweight and medium weight artillery). He explained that he never complained to anyone about his hearing loss because after a day or two it would return. At the hearing, he provided a copy of a study from the Hearing Foundation which noted that a gun muzzle blast has a sound of 140 decibels, the maximum allowed loud noise with hearing protection. It was noted that even brief exposure injured unprotected ears. He further testified that he retired from service in 1995 and denied any post-service noise exposure. Post-service, he was employed as an accountant. In a February 2011 statement, a private audiologist indicated that the Veteran was seen in June 2009 for his hearing loss. He stated that he had extensive noise exposure due to artillery in the military in 1960s. At that time, he noticed tinnitus and some high-frequency hearing loss which became progressively worse over time. The audiologist stated that the June 2009 audiogram revealed a classic 4000 Hertz sensorineural hearing loss consistent with noise exposure. He opined that given his history and the audiogram showing a hearing loss consistent with noise exposure, it was his opinion that it was "probably" related to the noise exposure he received while on active duty. Upon careful review of the evidence as outlined above, and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for bilateral hearing loss. As discussed above, there is no evidence of in-service bilateral hearing loss. Notwithstanding, the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Although the Veteran's STRs from his period of active service does not reflect any hearing impairment, the Board nevertheless finds credible the Veteran's assertion that he was exposed to significant acoustic trauma during service as a field artillery commander. The Veteran does not contend that the STRs from his first period of service show that he has a bilateral hearing loss, rather, he has consistently reported that he experienced temporary hearing loss during service and was first informed that he had hearing loss in 1986 during service. The Board points out that the Veteran is competent to report experiencing bilateral hearing loss in service and thereafter. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Board finds his account credible, particularly given his history of bilateral hearing loss, in-service acoustic trauma, MOS, and apparent lack of significant post-service acoustic trauma. The Board, in reviewing the record in its entirety, finds that the lay and medical evidence for and against the claim of service connection for bilateral hearing loss is in equipoise. Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's bilateral hearing loss is related to his active service. Accordingly, service connection for bilateral hearing loss is warranted. The claim, therefore, is granted. Left elbow The Veteran contends that he has a left elbow disability, claimed as stiffness and pain, related to an in-service injury in 1973. The Veteran's STRs include an August 1973 statement of medical examination and duty status which shows that while playing softball he slipped on grass and fell on his left arm which caused a fracture. An August 1973 private medical report shows that he sustained a radial neck fracture of the left elbow. STRs include a July 1986 examination which revealed a 2-inch scar on the left elbow. The accompanying report of medical history noted a fractured elbow in 1973 with no sequelae. On VA joints examination in July 2010, the Veteran presented with a history of injuring his left elbow during service. After service, he had not had any specific problems until the last five years. On examination, an X-ray examination of the left elbow revealed no significant bony abnormality. He was not diagnosed with any left elbow disability. In January 2011, the Veteran testified that he injured his left elbow during active duty for training with the Army National Guard in 1973, but stated that the left arm was "pretty much" functional and he denied receiving any treatment for the left arm or elbow. On review of the evidence above, the Board notes that the Veteran has complained of left elbow pain, but pain alone, without a diagnosed or identifiable underlying malady or condition, does not constitute a disability for which service connection can be granted. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, there is no medical evidence showing that a left elbow disability has been present at any time during the pendency of the claim and the report of a current VA examination shows the Veteran does not have an abnormality of the left elbow; he has accordingly not shown a current disorder for which service connection can be granted. VA must consider all favorable lay evidence of record. 38 U.S.C.A. § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in addition to the medical evidence above the Board has considered the lay evidence submitted by the Veteran in the form of his correspondence to VA. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999); see also Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Rather, it is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation. Jones v. Brown, 7 Vet. App. 134, 137 (1994); Degmetich v. Brown, 104 F.3d 1328 (1997). As discussed above, there is no medical evidence of the presence of a disorder of the left elbow during the pendency of this claim. For the foregoing ;reasons, the claim for service connection for a left elbow disability must be denied. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for bilateral hearing loss is granted, subject to the laws and regulations governing the award of monetary benefits. Service connection for a left elbow disability is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs