Citation Nr: 1302201 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 09-15 173A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida. THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a low back disability REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran served on active duty from July 1977 to July 1981 and from October 1981 to November 1984. This case arises to the Board of Veterans' Appeals (Board) from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that denied service connection for a bilateral hearing loss disability, tinnitus, and for a low back disability In June 2011, the Board remanded the case for development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDINGS OF FACT 1. The current low back disability arose many years after active service, and is not etiologically related to active service. 2. The Veteran's bilateral hearing loss and tinnitus are due to noise exposure during active service. CONCLUSIONS OF LAW 1. A low back disability was not incurred in active military service. 38 U.S.C.A. §§ 1131, 5103A (West 2002); 38 U.S.C.A. § 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. Tinnitus was incurred in active military service. 38 U.S.C.A. §§ 1131, 5103A (West 2002); 38 U.S.C.A. § 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). 3. A bilateral hearing loss disability was incurred in active military service. 38 U.S.C.A. §§ 1131, 5103A (West 2002); 38 U.S.C.A. § 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA must notify and assist claimants in substantiating claims for benefits. 38 U.S.C.A. §§ 5100, 5103A, 5107, 5126 (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2012); 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 must notify the claimant and his attorney 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). VA must also inform the claimant of any information and evidence not of record that VA will seek to provide and that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, timely and adequate notice was provided in a November 2007 letter from the RO. VA also has a duty to assist the claimant in the development of the claim. This duty includes assisting the claimant in obtaining service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All necessary development has been accomplished and adjudication may proceed without unfair prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has obtained all available Service Treatment Reports (STRs), VA clinical records, and VA compensation examination reports. The examinations are adequate in that they provided appropriate clinical findings and offered complete medical opinions relevant to the matters at hand. The claimant was provided an opportunity for a hearing. The claimant has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the claimant is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). Service Connection Service connection will be awarded for disability resulting from injury or disease incurred in or aggravated by active service (wartime or peacetime). 38 U.S.C.A. § 1131 (West 2002), 38 C.F.R. § 3.303(a) (2012). Service connection requires competent evidence showing: (1) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; (2) evidence of current disability; and (3) medical evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). In Caluza, the Court also stressed that § 3.102 states, "The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident arose under combat, or similarly stressful conditions [emphasis added], and is consistent with the probable results of such known hardships." Caluza, 7 Vet. App. at 509. Each disabling condition shown by service medical records, or for which the Veteran seeks service connection, must be considered on the basis of the places, types, and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. 38 C.F.R. § 3.303(a). "Direct" service connection may be granted for any disease not diagnosed initially until after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Once the evidence has been assembled, the Board assesses the credibility and weight to be given to the evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) and cases cited therein. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), 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 evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. According to 38 U.S.C.A. § 1154(a), the Secretary must consider the places, types, and circumstances of the Veteran's service, his unit's history, his service medical records, and all pertinent lay and medical evidence in the case. More favorable consideration is afforded combat Veterans under 38 U.S.C.A. § 1154(b); however, because the Veteran was not in combat, he will not be afforded the more favorable consideration reserved for combat Veterans under 38 U.S.C.A. § 1154(b). The Veteran's STRs reflect treatment for low back spasm, although a later-dated military periodic physical examination report reflects no relevant abnormality. The Veteran's hearing remained with normal limits, bilaterally, when tested at various times during active military service, although no separation examination report is of record. In his November 2007 service connection claim, the Veteran claimed back treatment aboard the USS Forrestal and at Jacksonville Naval Regional Medical Center. A March 2008 VA audiometry evaluation reflects that a bilateral hearing loss disability exists. The Veteran reported a 5 to 7 year history of tinnitus. The audiologist felt that in the absence of a separation examination report, any etiology opinion concerning hearing loss or tinnitus would be too speculative to offer. In his June 2008 notice of disagreement, the Veteran reported extensive treatment for a low back injury during active service. He reported that he has not had significant noise exposure since active service. In January 2011, the Veteran testified before the undersigned that he worked on the flight deck of an aircraft carrier during active service. He testified that he also was exposed to loud noise below deck. He testified that he first noticed tinnitus after exposure to noise during active service. He testified that he injured his back carrying fire extinguishers aboard ship. He testified that his back has never been the same since then. VA re-examined the Veteran's hearing in July 2011. The examiner acknowledged a current bilateral hearing loss disability and tinnitus but found insufficient clinical evidence with which to dissociate or associate these to active military service. The examiner noted inconsistencies in the Veteran's claims in that during a March 2008 VA examination, he reported a several year history of hearing problems and a 5 to 7 year history of tinnitus, while during his examination he reported that hearing loss and tinnitus began after active service. A September 2012 VA orthopedic compensation examination report reflects that the current low back diagnoses are thoracic and lumbosacral spondylosis without myelopathy and lumbar intervertebral disc without myelopathy. The examiner dissociated these from active service based on a great number of years between active service and post-service complaints of pains. Thus, a nexus to military service could not be made. The September 2012 VA medical opinion is persuasive, as it is based on accurate facts and is supported by a rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight); also see Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). The July 2012 VA opinion is not controverted by any other medical evidence, and the July 2012 opinion weighs heavily against the Veteran's claims for service connection. The current back disorder was not seen during service or for years thereafter, and there is no medical opinion linking the low back disability to any aspect of active service. The only evidence favoring the claim is found in statements from the Veteran. The Veteran reported that his low back disability is related to active service; however, the Veteran is not medically trained and is thus not competent to say that currently diagnosed medical conditions began during service. He is competent to discuss his symptoms, and he is competent to identify back pain and state when it began. Competency to discuss symptoms, however, does not equate to competency to diagnosis the disorders causing the symptoms or to confirm that a currently diagnosed medical condition is the same thing that may have caused similar symptoms years ago. Thus, VA cannot attach any weight to his lay opinion. See 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay diagnosis is competent if: (1) lay person is competent to identify the medical condition; (2) lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony of symptoms at the time supports a later diagnosis by a medical professional). Here, because the medical opinion is against the Veteran's claim, and no health professional agrees that a low back disability is related to active service, it cannot be said that the Veteran's statements or contentions support a later medical diagnosis. After considering all the evidence of record, the Board finds that the preponderance of the evidence is against the claim. The benefit of the doubt doctrine will therefore not be applied. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, supra. Service connection for a low back disability must be denied. Concerning service connection for a bilateral hearing loss disability, entitlement to service connection for impaired hearing is subject to the requirements of 38 C.F.R. § 3.385 (2012), which provides: 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 of 500, 1000, 2000, 3000, 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. In Hensley v. Brown, 5 Vet. App. 155, 159, (1993), the Secretary posited that where the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system, and post-service test results that meet the criteria of 38 C.F.R. § 3.385. VA rating authorities must evaluate available testimony, clinical data, diagnoses, and any medical opinions relevant to the issue. For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometry test results resulting in an upward shift in tested thresholds in service, though still not meeting the requirements for a "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometry testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. In this case, no separation examination report reflects is of record. It is clear that the Veteran's hearing loss meets VA's disability requirements at this time. The evidence reflects exposure to loud noise during active service. The Veteran's testimony concerning such noise exposure is credible as it is consistent with his service record. Therefore, there is a medically sound basis for a VA health professional to attribute the current hearing loss to noise exposure in service. No evidence of post-service noise exposure has been submitted. While no health professional has attributed hearing loss and tinnitus to active service, it is also true that no health professional has found sufficient reason to dissociate hearing loss and tinnitus from active service. The medical evidence is therefore in relative equipoise. After considering all the evidence of record, including the testimony, the Board finds that the evidence is at least in relative equipoise. The benefit of the doubt doctrine will therefore be applied. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, supra. Service connection for a bilateral hearing loss disability and tinnitus will therefore be granted. ORDER Service connection for a bilateral hearing loss disability is granted. Service connection for tinnitus is granted. Service connection for a low back disability is denied. ____________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs