Citation Nr: 1313862 Decision Date: 04/25/13 Archive Date: 05/03/13 DOCKET NO. 08-30 053A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a left foot disorder. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) by reason of service-connected disability. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARINGS ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from September 1960 to June 1962. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the RO. It was most recently remanded in October 2012 to afford the Veteran a hearing before the undersigned Veterans Law Judge (VLJ). The Veteran had testified at a hearing with another VLJ who recently retired. The new hearing was held in February 2013. FINDINGS OF FACT 1. The Veteran is not shown to have manifested complaints or findings referable to hearing loss or tinnitus in service or for many years thereafter. 2. The currently demonstrated hearing loss and tinnitus are not shown to due to the exposure to hazardous noise levels or another event or incident of the Veteran's period of active service. 3. The Veteran is not shown to have a left foot disorder due to an injury or other event or incident of his period of active service. 4. To the extent that the Veteran is not service connected for any disability, his claim for a TDIU rating in not legally sufficient. CONCLUSIONS OF LAW 1. The Veteran's hearing loss disability is not due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 2. The Veteran's disability manifested by tinnitus is not due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 3. The Veteran does not have a left foot disability that is due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 4. The claim for a TDIU rating by reason of service-connected disability is dismissed by operation of law. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), 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. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In this case, the Veteran was sent a letter in March 2008 that explained how VA could help him obtain evidence in support of his claim. It also explained what the evidence needed to show in order to establish service connection for a claimed disability as well as explained how VA assigns ratings and effective dates for service connected disabilities. VA also must make reasonable efforts to assist the claimant with obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record service treatment records, paper and electronically stored VA treatment records, and transcripts of the testimony of the Veteran and his wife at both of his hearings. The Veteran has not identified any other information in support of his claim. While the Veteran at one time received Social Security disability benefits, he testified at the recent hearing that this was due to a back disorder. At his February 2011 hearing, he testified that he was not receiving Social Security disability benefits, but rather was receiving age-related Social Security benefits. Thus, the records are not relevant and the Veteran is not prejudiced by VA's not obtaining these records. The Veteran also was afforded adequate VA examinations with respect to his claims. Service connection The Veteran claims that he developed hearing loss, tinnitus and a left foot disorder as a result of his military service. Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection for some chronic diseases, including sensorineural hearing loss, may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: "(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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). A. Hearing loss and tinnitus The Veteran testified at his February 2013 hearing that he began to experience hearing loss and tinnitus in service. He testified that the tinnitus began after a motor vehicle accident in service when he hit his head and had continued to the present time. He also testified that he had had hearing loss since service. His September 2011 hearing testimony was substantially the same. A December 1960 entry in the Veteran's service treatment records documents the vehicle accident during service. However, the records at that time specifically noted that there had been no head injury. An injury to the back was documented. The treatment records reflected ongoing complaints after the car accident without mention of a head injury, tinnitus or hearing loss. In April 1962, the Veteran was seen for complaints of headache, but made no mention of a previous head injury. At the time of the separation examination, the Veteran was noted to have had hurt his back in an automobile accident, but there was no report of a head injury. It was further stated that the Veteran had no significant injury during service. On examination, his ears were noted to be normal. The Veteran was afforded audiometric testing in connection with the May 1962 separation examination. The Veteran was afforded a VA examination in March 1975 when he reported being involved in an automobile accident in 1960 when he was thrown from the vehicle, but sustained no broken bones. He reported having headaches, back pains, his leg going to sleep and numbness in the fingers. The Veteran also noted that he had a problem with dizziness. Significantly, on examination in March 1975, the Veteran was noted to have no hearing loss. The Veteran has reported being exposed to noise in service as a vehicle operator and from the noise of jets that were taking off. At the February 2013 hearing, he testified that he was not provided with any hearing protection during service. The VA treatment records reflect complaints of hearing loss and tinnitus, and the Veteran was prescribed hearing aids. The Veteran was afforded a VA audiological evaluation in February 2012 when he reported having a history of military noise exposure without hearing protection. He also reported being in a vehicle accident in service when he hit his head against a telephone pole and having had tinnitus since that time. The Veteran denied having any significant post-service noise exposure. The VA examiner diagnosed mild to moderately severe bilateral sensorineural hearing loss. The examiner opined that the Veteran's hearing loss was less likely than not related to service. She added that the Veteran's hearing was normal at separation and that the current knowledge of cochlear physiology indicated that there is no scientific basis for the delayed onset of hearing loss. The examiner opined that the Veteran's hearing loss and tinnitus were most likely caused by presbycusis. While the Veteran currently asserts that he had difficulty hearing since service, his statements are directly contradicted by the finding of the examination performed at separation from service and the finding of the VA examination in March 1975 when he was noted not to have a hearing loss. Thus, the Board finds the VA examiner's medical opinion to have greater probative weight that the Veteran's current lay statements. The VA examiner also opined that the Veteran had age-related hearing loss. The Veteran has offered no evidence to link the claimed hearing loss or tinnitus to service other than his own unsupported opinion. The Veteran lacks the medical expertise necessary to explain the etiology of hearing loss. There is also no basis to conclude that a sensorineural hearing loss was present within one year after service. The Veteran also is not shown to have had tinnitus during service. To the extent that he testified that he had experienced tinnitus since suffering a head injury in service, these assertions are inconsistent with earlier and more reliable information provided by him during service when he did not report injuring his head or having tinnitus in connection with the treatment after the accident during service. While the Veteran is competent to report that he experienced ringing in his ears during service, his lay assertions are not found to be credible for the purpose of linking the onset of the claimed tinnitus to his period of active service. Accordingly, on this record, service connection for hearing loss and tinnitus is denied. B. A left foot disorder At the February 2013 hearing, the Veteran testified that he had experienced numbness and tingling of his legs since being injured in the vehicle accident during service. He also reported that he sustained an abrasion of his left ankle, but no broken bones and that his foot would fall asleep after that. At his hearing in September 2011, he also mentioned having problems with his legs, but not specifically the left foot. The service treatment records do show that the Veteran sustained an abrasion of the left ankle in the vehicle accident and added that there was no fracture. Other treatment records do reflect complaints of the Veteran's left leg and foot falling asleep. However, on evaluation, no explanation for these manifestations was ever identified during service. The Veteran had a neurosurgical examination, but only mild back strain was diagnosed, with an added comment that a physical problem might not really exist. A neurologic examination was normal. When examined in March 1975 by VA, the Veteran reported that his legs went to sleep and that he had numbness of the fingers after accident. However, a neurological examination was noted to be normal. The diagnosis was that of history of back injury, asymptomatic. The Veteran was examined by VA in February 2012 when the examiner diagnosed left leg radiculopathy. There was no left foot disorder identified. The examiner opined that the left leg radiculopathy was less likely than not related to his military service. The VA examiner added that the Veteran had age-related degenerative lumbar disc disease that was likely causing left leg and foot numbness due to nerve root compression. The examiner added that it would not be expected that such multilevel changes would be attributable to an injury that was sustained many years earlier. Although the examiner had not at that time reviewed the claims file, it was later reviewed and the examiner's opinion remained unchanged. While the Veteran currently reports having had left leg and foot numbness since the accident in service, the VA examiner opined that his left leg manifestations were due to radiculopathy that was the result of age-related back problems. The Veteran was found to have had only a mild strain in service with no nerve root compression found at that time. The VA examiner's medical opinion in this case is accorded greater probative weight than the Veteran's subjective report of his left foot complaints. Significantly, the Veteran's claim of service connection for left leg radiculopathy as secondary to a back disorder was denied in a November 2011 decision of the Board. Accordingly, on this record, service connection for a left foot disorder is denied TDIU The Veteran asserts that he is unable to work due to service connected disabilities. However, service connection has not been granted for any disability. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total if the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, provided that if there is only one such disability, that disability is at least 60 percent disabling, and if there are two or more disabilities, at least one disability is a minimum of 40 percent disabling and there is sufficient additional disability to bring the combined rating to at least 70 percent. 38 C.F.R. § 4.16(a). In this case, as there is no legal basis for the award of compensation benefits based on a TDIU rating, the claim must be dismissed. ORDER Service connection for hearing loss is denied. Service connection for tinnitus is denied. Service connection for a left foot disorder is denied. The claim for a TDIU rating must be dismissed. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs