Citation Nr: 1310264 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 10-31 337 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from May 1954 to May 1957. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by which the RO denied entitlement to the benefits sought herein. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran suffered acoustic trauma in service. 2. The Veteran failed, without good cause, to report for a VA examination scheduled in connection with the claims herein. 3. The evidence is at least in relative equipoise as to whether tinnitus is related to the Veteran's active duty service. 4. The Veteran is not shown to be suffering from bilateral hearing loss within the meaning of VA regulations. CONCLUSIONS OF LAW 1. Resolving the benefit of the doubt in the Veteran's favor, his tinnitus was incurred in active duty service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.655 (2012). 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385, 3.655 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by VCAA, VA has a duty to notify and assist claimants in substantiating a claim 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 and 3.326(a) (2012). Regarding the claim of entitlement to service connection for tinnitus, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. The discussion below pertains only to VCAA compliance with respect to the claim of entitlement to service connection for bilateral hearing loss. 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 in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in December 2009 that fully addressed all three notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claim and of the Veteran's and VA's respective duties for obtaining evidence. The Veteran was also given information regarding disability ratings and effective dates as mandated by the Court in Dingess. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of 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. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The service treatment records are largely unavailable; however, the RO made appropriate efforts to secure them and has documented their lack of availability. The RO scheduled a VA medical examination to assist the Veteran is substantiating the claim. The Veteran failed to appear for that examination without furnishing an explanation for his absence. The consequences of failing to report for the VA medical examination are described below. Significantly, neither the Veteran nor his representative has specifically identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Standard of Review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). 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; 38 C.F.R. § 3.102 (reasonable doubt to be resolved in veteran's favor). 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 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. Law and Regulations Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The foregoing provision regarding continuity of symptomatology pertains only to chronic diseases listed in 38 C.F.R. § 3.309(a) such as sensorineural hearing loss. Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Service connection may also 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). In sum, to establish service connection, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as sensorineural hearing loss, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309. Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. A claim of service connection must be accompanied by medical evidence establishing that the claimant currently has the claimed disability. Absent proof of a present disability, there can be no valid claim. See, e.g., Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (38 U.S.C. § 1110 requires current symptomatology at the time the claim is filed in order for a veteran to be entitled to compensation); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (38 U.S.C. § 1131 requires the existence of a present disability for VA compensation purposes); Brammer v. Derwinski, 3 Vet. App. 233, 225 (1992) (noting that service connection presupposes a current diagnosis of the claimed disability); 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). When a claimant fails to report, without good cause, for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit that was previously disallowed, or a claim for increase, the claim shall be denied. Id. Examples of "good cause" include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. Id. Preliminary Matter The service treatment records are largely missing. In December 2009, the RO made a formal finding regarding their unavailability. When service records are missing, there is a heightened obligation to assist the appellant in the development of the case, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule in cases, such as in this situation, in which records are presumed to have been or were destroyed while the file was in the possession of the government. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); see also Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). Discussion Tinnitus In December 2012, the Veteran failed to appear for a VA audiologic examination schedule in furtherance of the claim of entitlement to service connection for tinnitus. He furnished no reason for his failure to report for the examination. As such, the Board will decide the issue of entitlement to service connection for tinnitus based on the evidence of record. 38 C.F.R. § 3.655. The Veteran served in the Army. His DD Form 214 reflects that he was a light vehicle driver and that he had approximately 14 months of foreign service. The service treatment records are largely missing and consist of only the separation medical examination report, which does not reflect a diagnosis of tinnitus. In written statements, the Veteran asserted that he was exposed to loud noise during service in Germany where he drove a large truck and was attached to a tank company. Apparently, he delivered gas and ammunition to the tanks and was exposed to loud noise when in the vicinity of the tanks. In his November 2009 claim for benefits, the Veteran indicated that he began to experience tinnitus during service in 1955. The Board notes that VA Fast Letter 10-35 (September 2, 2010) addresses claims for hearing loss or tinnitus as a result of noise exposure in service. The letter states that each branch of the military has reviewed and endorsed lists of military occupational specialties (MOS) and the corresponding probability of hazardous noise exposure related to an individual's MOS. If the duty position is shown to have a "Highly Probable" or "Moderate" probability of exposure to hazardous noise, exposure to such noise will be conceded for purposes of establishing the in-service event. The Veteran's MOS as a light vehicle driver is not listed. Due to the Veteran's assertions that he worked around tank artillery noise, however, it is reasonable to conclude that he spent at least some time in noisy environments. As well, the fact that the Veteran was stationed with the Service Company of the 60th Infantry suggests that his duties indeed entailed noise exposure. Consequently, the Board concedes noise exposure in service. With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen, supra. The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran has asserted that he has been experiencing tinnitus since service. His assertions are consistent with the nature of his service that included noise exposure as a light vehicle driver with the 60th Infantry. There is no evidence of record that stands in contradiction to the Veteran's statements. Consequently, the Board finds that the Veteran's statements herein are credible. Indeed, VA decision makers have discretion to accept or reject pieces of evidence provided that sufficient reasons and bases are set forth explaining such actions. Hayes v. Brown, 5 Vet. App. 60, 69- 70 (1993), citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992). Moreover, tinnitus is unique in that it is a subjective condition that is given to lay observation. Charles, supra; see also Jandreau, supra; Barr, supra. Thus, because the Veteran is competent, in essence, to diagnose his own tinnitus and because he has been found to be credible, the Board credits his assertions regarding having had incurred tinnitus in service. In sum, there is a competent showing of tinnitus and credible evidence of in-service incurrence. There is no evidence to the contrary. As such, the evidence regarding the service origin of the Veteran's tinnitus is at least in relative equipoise, and service connection for tinnitus is granted. 38 C.F.R. § 3.303; Shedden, supra; see also 38 U.S.C.A. § 5107; 38 C.F.R. § 3.120, Gilbert, supra. Hearing loss In December 2012, the Veteran failed to appear for a VA audiologic examination schedule in furtherance of the claim of entitlement to service connection for bilateral hearing loss. He furnished no reason for his failure to report for the examination. As such, the Board will decide the issue of entitlement to service connection for tinnitus based on the evidence of record. 38 C.F.R. § 3.655. While hearing loss is readily apparent to the one suffering from it, the Board cannot accept a claimant's representations regarding the presence of hearing loss because hearing loss for VA purposes is strictly defined by regulation. See generally 38 C.F.R. § 3.385. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the presence of bilateral hearing loss that meets certain very specific parameters falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The Board notes that diagnosing hearing loss for VA purposes requires specialized training and equipment, which the Veteran is not shown to possess. Thus, the Veteran's apparent assertions regarding the presence of bilateral hearing loss that meets the hearing loss standards set by regulation do not constitute probative evidence. The record contains no competent diagnosis of bilateral hearing loss for VA purposes. Although the Veteran has indicated that he underwent three or four hearing evaluations in the past few years, he did not enclose the results of those evaluations or provide VA with sufficient information to assist him in obtaining that evidence. As stated, he failed to report for a VA examination scheduled in connection with this claim. Thus, there is no competent evidence suggesting a present disability of bilateral hearing loss within the meaning of VA regulations. A prerequisite to the granting of service connection is the presence of a current disability. 38 C.F.R. § 3.303; Brammer, supra. Because the Veteran is not shown to be suffering from bilateral hearing loss within the meaning of VA regulations, service connection for the claimed disability must be denied. Id. Unfortunately, because there is no competent evidence reflecting a present hearing loss disability, the preponderance of the evidence is against the claim, and the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra; Alemany, supra. ORDER Service connection for tinnitus is granted. Service connection for bilateral hearing loss is denied. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs