Citation Nr: 1311230 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 08-13 282A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a back disorder, to include arthritis. 4. Entitlement to service connection for osteoarthritis of multiple joints, including the shoulders, legs, and feet. 5. Entitlement to service connection for hypertension. 6. Entitlement to service connection for obstructive sleep apnea (OSA). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The Veteran had active service from April 1968 to April 1971. He also had periods of service with the National Guard in the years thereafter. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February and August 2007 rating decisions of the VARO in Montgomery, Alabama, that denied entitlement to the benefits sought. The case was previously before the Board in May 2012 at which time it was remanded for further development. The requested actions have been accomplished to the extent possible and the case has been returned to the Board for appellate review. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. The Veteran's current bilateral hearing loss disability is reasonably related to his experiences while on active service. 2. The Veteran has tinnitus that is reasonably related to acoustic trauma sustained in service. 3. A back disorder, to include arthritis, did not have its onset during service and is not related to disease, injury, or event of service origin or to a service-connected disability, and did not manifest within one year of separation from active service. 4. Arthritis of multiple joints did not have onset during service, may not be presumed to have been incurred in service, and is not shown to be related to disease, injury, or event of service origin, and did not manifest within one year of separation from active service. 5. Hypertension did not have its onset during service, may not be presumed to have been incurred during active service, and is not related to disease, injury, or event of service origin, and did not manifest within one year of separation from active service. 6. OSA did not have its onset during service, may not be presumed to have been incurred during active service, and is not related to disease, injury, or event of service origin. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral hearing loss disability are reasonably met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. The criteria for service connection for tinnitus are reasonably met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 3. Service connection for a back disorder, to include arthritis, are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). 4. The criteria for service connection for arthritis of multiple joints, including the shoulders, legs, and feet, are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). 5. The criteria for service connection for hypertension are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). 6. The criteria for service connection for OSA are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) defines VA's duty to notify and assist a Veteran in the development of a claim for benefits. VA regulations for the implementation of the VCAA are codified as amended at 38 C.F.R. §§ 3.102, 3.156, 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. 193 (2002). Proper VCAA notice 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. VCAA notice should be provided to a claimant before the initial RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.59(b). The United States Court of Appeals for Veterans Claims (Court) has held the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those elements are: (1) Veteran status; (2) existence of a current disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability award. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). A review of the evidence discloses the Veteran has received all required notice, has had a meaningful opportunity to present evidence that would help him develop his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). He was sent appropriate VCAA letters over the years, including one as recently as May 2012. The claim was most recently adjudicated in a January 2013 Supplemental Statement of the Case. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Regarding the duty to assist, VA has also satisfied its obligation in terms of obtaining all potentially relevant evidence concerning the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records, VA medical records, and identified private medical records have been obtained. The Alabama National Guard was contacted and asked to provide any records it might have in its possession pertaining to the Veteran. However, a response dated June 1, 2012, from the Alabama National Guard reflected that no records were found pertaining to the Veteran. The Veteran himself was contacted in January 2013 and asked to provide any National Guard records that might be in his possession. It was indicated he did not have any such records. Also, the VA Medical Center in Birmingham, Alabama, was contacted and asked to provide any records it might have in its possession pertaining to the Veteran. However, in an August 2012 statement from that facility, it was indicated that after a thorough search there were no records found between 1971 and 2006 pertaining to the Veteran. He was notified of this in September 2012. The Veteran was provided a VA compensation examination with regard to his claims for hearing loss and tinnitus. The Veteran was not provided any examination with regard to the other claims. However, the Board finds that one is not necessary to determine whether any of the claimed disabilities is related to his period of active service, as the standards set forth in McLendon v. Nicholson, 20 Vet. App. 79 (2006) have not been met. Under McLendon, VA must provide a medical examination in a service connection claim when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; and (2) evidence establishing that an event, injury, or disease incurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the Veteran qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability; but (4) insufficient competent medical evidence is on file for the VA to make a decision on the claim. Id. at 81. In this case, the service treatment records do not show treatment or evaluation for the disabilities at issue. Also, none of the claimed disorders was first identified for some time after the Veteran's active service. In light of the above, the second and third prongs of McLendon have not been met. Further, the Board, as finder of fact, also finds in the decision below that the Veteran's lay statements regarding the onset of his conditions in service are not credible. Therefore, because there is no event, injury, or disease in service or a service-connected disability to which a current disorder could be related, the Board finds that a VA examination is unnecessary. 38 C.F.R. § 3.159(c)(4)(i) ; cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. V. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an in-service event, injury, or disease). The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claims. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). Pertinent Law and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence of three things: (1) A current disability; (2) inservice incurrence or aggravation of a disease or injury; and (3) a causal relationship, that is, a nexus, between the claimed inservice disease or injury and the current disability. Walton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. In addition, hypertension and arthritis will each be presumed to have been incurred in service if manifest to a degree of 10 percent or more within one year following service separation. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Hearing Loss and Tinnitus The Veteran and his representative essentially maintain that the nature of his duties while on active service exposed him to acoustic trauma and this is responsible for his current hearing loss disability and tinnitus. The Veteran's personnel records disclose that his principal duty assignments in service were as an armorer with a signal unit, an armorer with a transportation company, and a supply sergeant with a transportation company. An audiogram study done in conjunction with preinduction examination in early 1968 reflected entirely normal hearing bilaterally. There were no complaints or findings indicative of the presence of hearing loss disability or tinnitus during the Veteran's active service. At the time of audiometric study done in conjunction with separation examination in November 1970, hearing for the conversational voice ranges was normal. However, a decibel loss of 25 was noted at 4,000 Hertz on the right and a loss of 20 decibels was noted in the left ear. In the Veteran's application for VA benefits that was received in September 2006, he stated that he was exposed to extreme noises associated with aircraft and aircrew experience. He reported that he received treatment for hearing loss and tinnitus from the VA Medical Center in Birmingham beginning in 1978. However, as noted above, in an August 2011 communication, an individual at the VA Medical Center Birmingham indicated that after a thorough search, no records were found pertaining to the Veteran at that facility between April 1971 and September 2006. Of record is the report of a notice of an examination from the Air National Guard in March 1982. At that time there was a history of mild hearing loss secondary to noise exposure secondary "secondary to working around noise in civilian job." Elaboration was not provided. No mention was made of acoustic trauma sustained in service. Subsequent evidence includes the report of medical history made in conjunction with a periodic examination for the National Guard in September 1985. The Veteran stated he was in good health and was not taking any medication. He denied either having or having had hearing loss. No mention was made of tinnitus. The audiogram study accorded him in September 1985 continued to show high frequency bilateral hearing loss. Again on periodic examination in October 1989, the Veteran denied hearing loss. Audiometric examination at that time showed bilateral high frequency hearing loss. At the time of periodic examination in September 1993, the Veteran again stated he was in good health. He again denied ever having had hearing loss. Once again, audiometric examination revealed mild hearing loss bilaterally in the upper frequencies. The pertinent evidence includes a report of an audiometric examination accorded the Veteran by VA in June 2012. Findings were recorded and the examiner opined that, after review of the claims file and current examination, the Veteran had hearing loss that is at least as likely as not (50 percent probability or greater) caused by or the result of an event in military service. As for rationale, the examiner noted that pure tone testing at induction in February 1968 and at separation in February 1970 reflected hearing with normal limits bilaterally. However, notation was made of a significant threshold shift at 4000 Hertz bilaterally on the induction and separation examinations. As a result, the examiner opined that it is "at least as likely as not the threshold shift was identified while on active service and was due to military noise exposure." With regard to tinnitus, the examiner opined that it is less likely than not that the Veteran's tinnitus is caused by or a result of military noise exposure. As for rationale, the examiner stated the Veteran did not relate the onset to military service or to a military noise event. However, the Board notes that earlier in the examination when discussing the Veteran's hearing loss etiology, the examiner noted that the Veteran reported being around loud jet engines on a daily basis while serving with an aviation unit. Based on the foregoing, the Board finds that service connection is reasonably warranted for both bilateral hearing loss disability and tinnitus. The VA audiologist who examined the Veteran in June 2012 had access to the entire claims file and opined that the Veteran's current hearing loss is more likely than not related to his active service experience. The Board sees no reason to disagree with this assessment. There is no other medical opinion of record pertaining to this issue. The Veteran has been inconsistent in his history as indicated by the times he did not refer to hearing difficulties at the times of periodic examinations over the years, but the VA audiologist in 2012 had access to the entire evidence of record and expressed a favorable opinion as to active service etiology. This at least places the evidence in relative equipoise. As a result, the claim is granted. With regard to tinnitus, the examiner was somewhat inconsistent. The audiologist noted that it is at least as likely as not that the threshold shift in the Veteran's high frequency hearing noted at the time of separation audiogram was due to military noise exposure, but she opined the currently diagnosed tinnitus was not attributable to active service. The Veteran himself has been somewhat inconsistent as well in relating his currently diagnosed tinnitus to his active duty service between 1968 and 1970. However, with the acknowledgment by her that the Veteran sustained acoustic trauma in service, the Board finds the evidence is at least in relevant equipoise with regard to this issue. That being the situation, and with the resolution of all reasonable doubt in the Veteran's favor, the Board finds that the evidence supports a grant of service connection for bilateral hearing loss disability as well as tinnitus. 38 U.S.C.A. § 5107(b). Back Disability, to Include Arthritis, Arthritis of Multiple Joints, Hypertension, and OSA With regard to the remaining claims for service connection, there is no competent or credible evidence of record showing that any of these disabilities had their onset during active service are related to inservice disease, an event, or injury. The Veteran claims that the disabilities are the result of service. However, in his application for VA benefits, he indicated that he did not begin receiving treatment for any of the claimed disabilities at the VA Medical Center in Birmingham until the 1970's, a time years following separation from service. That facility was contacted and asked to provide any records pertaining to treatment and evaluation of the Veteran there from the 1970's forward, but VA was informed in 2012 that no such records were available. The oldest VA medical records available date from September 2006. The records for the Veteran's period of active service between 1968 and 1971 disclose no complaints or findings indicative of the presence of any disability involving the back or other joints, hypertension, or OSA. At the time of separation examination in November 1970, clinical evaluation was entirely normal. A blood pressure reading while sitting was recorded as 118/74. In a statement of medical condition made in April 1971, the Veteran indicated there had been no change in his medical condition since the time of separation examination. In a report of medical examination made in conjunction with National Guard enlistment examination in March 1982, clinical evaluation was entirely normal. Notation was made that there was an elevated blood pressure reading on initial check, but the reading was later normal and was not considered disqualifying. In the report of medical history made in conjunction with the examination, the Veteran stated he was in good health at that time and was taking no medication. He denied ever having had or having high or low blood pressure, difficulty sleeping, back problems, or any symptom indicative of arthritis. He denied a history of diabetes, disturbances of consciousness, radiation therapy, "and all other significant medical or surgical history." Electrocardial tracings in May 1982 were described as within normal limits. A list of blood pressure readings taken on several days in May 1982 disclosed all readings were within normal limits. Of record is a report of medical history done in conjunction with examination in March 1983. The Veteran stated he had not experienced any significant illness or injury since his last physical examination. He indicated he was not currently taking any medication. He denied any significant medical or surgical history. At the time of periodic non-flying examination in September 1985, the Veteran again stated he was in good health and was not taking any medication. He expressed no pertinent complaints, to include his having no trouble sleeping. His blood pressure reading at that time was normal. At the time of report of medical history made in conjunction with periodic examination in October 1989, the Veteran indicated he was taking medication for control of elevated high blood pressure. He also expressed either having or having had swollen or painful joints. He stated that he occasionally took medication for pain in the arm and elbow secondary to being an over-the-road truck driver. He continued to deny any history of difficulty sleeping. Notation was made of a history of elevated blood pressure that was being controlled with medication. At the time of periodic examination for National Guard purposes in September 1993, the Veteran stated that he was in good health and was continuing to take medication for elevated blood pressure. He denied having any swollen or painful joints and he also denied any difficulty sleeping. It was noted he had been taking medication for hypertension for 7 to 8 years. An examination at that time did not reflect the evidence of any pertinent abnormality. The post service medical records include the report of a study done by a board certified sleep specialist in February 2000. The purpose of the test was to rule out sleep apnea. The Veteran was given a diagnosis of OSA. Additional evidence includes the report of a left shoulder magnetic resonance imaging scan done at a private facility in September 2001. Following the study diagnoses were made of: Degenerative changes involving the acromioclavicular joint; on the surface partial tear involving the supraspinous tendon near its insertion; and subdeltoid/subacromial bursitis. This was apparently precipitated by a visit when the Veteran complained of pain in the left shoulder "now for quite some time." He stated that he did a lot of overhead lifting at work. He reported no history of "real injury or significant medical illnesses." It was noted he had been seeing a general practitioner and another physician. The aforementioned medical evidence of record does not establish that the Veteran was disabled from any injury or disease during his active service. While he currently complains of having multiple joint arthritis, a back problem, hypertension, and OSA that are all attributable to his active service, his assertions are not supported by the medical evidence of record. That evidence includes reports of examinations done in conjunction with National Guard service. On periodic examinations in the 1980's and early 1990's, the Veteran consistently denied ever having had any trouble sleeping. Only on one occasion did he report having swollen or painful joints. The separation examination and treatment records for the years he was on active service do not show that the Veteran had any of the claimed disabilities. Accordingly, the Veteran's statements that the disabilities at issue were present during service, while competent, are not credible. There is no competent, credible evidence of record showing that the Veteran's hypertension, OSA, back disability, and/or multiple joint arthritis had their onset during service or are related to any inservice disease, event, or injury. The Veteran's statements are not probative evidence. The Board notes that any periods the Veteran had of ACDUTRA training do not qualify as active military service. The reports of medical history made in conjunction with period National Guard examinations reflect the Veteran was in good health and the reports of those examinations do not demonstrate the Veteran was seen for any injury during active duty training or that he was assessed for disease during active duty training. See 38 U.S.C.A. § 101(24) (stating that the term "active military, Naval, or air service" includes, among other things, "any period of active duty for training during which the individual concerned was disabled or died from disease or injury incurred or aggravated in [the] line of duty." Because the evidence of record does not establish that the Veteran was disabled from any injury or disease during active duty for training, nor has he identified any such evidence, he is not a Veteran for the purposes of his claims during the time frame other than his active service time frame between 1968 and 1971. See 38 U.S.C.A. §§ 101(2)(22)(24) (explaining that, in the absence of such evidence, a period of active duty for training does not qualify as "active military, Naval, or air service," and an appellant does not qualify as a "Veteran" by virtue of a period of active duty for training alone); 38 U.S.C.A. § 1110; Acciola v. Peake, 22 Vet. App. 320, 324 (2008) (citing Ricardo-Martinez v. West, 11 Vet. App. 414, 419 (1998); Smith v. Shinseki, 24 Vet. App. 40, 45-48 (2010) (a presumption of service connection cannot apply to a claimant whose claim is based only on a period of active duty for training). In view of the foregoing, the Board finds service connection for the arthritis of multiple joints, a back disorder, to include arthritis, hypertension, and OSA under any theory is not warranted. 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 for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER Service connection for bilateral hearing loss disability is granted. Service connection for tinnitus is granted. Service connection for arthritis of multiple joints, including the legs, the shoulders, the feet, is denied. Service connection for hypertension is denied. Service connection for a back disorder, to include arthritis, is denied. Service connection for OSA is denied. ____________________________________________ D. MARTZ AMES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs