Citation Nr: 1319066 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 09-37 743 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for left ankle or foot disability, to include as secondary to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from May 2004 to November 2005; he also had service in the Army National Guard, including active duty for training from September 1985 to January 1986. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2008 rating decision of the Department of Veterans Affairs (VA) regional office in New York, New York (RO). The issue of entitlement to service connection for a left ankle disability, to include on a secondary basis, is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran does not have bilateral hearing loss that is causally related to service. 2. The Veteran does not have tinnitus that is causally related to service. CONCLUSIONS OF LAW 1. Bilateral hearing loss disability was not incurred in or aggravated by active service, nor may sensorineural hearing loss be presumed to have been so incurred or aggravated. 38 U.S.C.A. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). 2. Tinnitus was not incurred in or aggravated by active service, nor may it, as an organic disease of the nervous system, be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist and Notify The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO sent the Veteran a letter in July 2007, prior to adjudication, which informed him of the requirements needed to establish entitlement to service connection. In compliance with the duty to notify, the Veteran was informed in the letter about disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In accordance with the requirements of VCAA, the July 2007 letter informed the Veteran what evidence and information he was responsible for and the evidence that was considered VA's responsibility. No additional private evidence was subsequently added to the claims files after the letter. VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. A VA audiological evaluation with nexus opinion was obtained in April 2008 and added to the claims files. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination report obtained in this case is adequate, as it is based on a reading of relevant medical records in the Veteran's claims file. The examiner considered all of the pertinent evidence of record and provided rationale for the nexus opinions on file. There is adequate medical evidence of record to make a determination on the service connection issues in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion on the service connection issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Veteran has been given ample opportunity to present evidence and argument in support of his claims. The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claims. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). Analysis of the Claims The Veteran seeks service connection for bilateral hearing loss and tinnitus as a result of service exposure to acoustic trauma. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may also be granted for any disease initially diagnosed after service, 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). Service connection may be granted for sensorineural hearing loss and tinnitus, as an organic disease of the nervous system, if the disorder is manifested to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). As is noted above, the Board is required to follow applicable statutes and regulations in its decisions. Applicable regulations provide that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz, in ISO units, is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2012). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, 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, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). A periodic medical history report and medical evaluation in July 1988 do not reveal any complaints or findings of hearing loss and tinnitus, including on audiological testing. A May 1992 audiogram showed hearing loss disability in the right ear, with pure tone thresholds of 40 or 45 decibels at all relevant frequencies. Audiological evaluations in October 1997 and September 2003 were within the VA definition of normal limits, with pure tone thresholds at the relevant frequencies of 10 decibels or fewer. The Veteran noted on October 2005 and December 2005 Post-Deployment Health Assessments that he did not have ringing in the ears either during or after his deployment. According to a March 2006 Post-Deployment Health Reassessment, the Veteran's problems included ringing of the ears; he noted exposure to a "blast or motor vehicle accident" while deployed. VA treatment records dated from April 2002 to May 2012 are of record. The Veteran complained in January 2006 of difficulty hearing in the right ear for the past 3-4 months. He said that he had been exposed to acoustic trauma in Iraq as a mortar man, where he wore ear protection but not all the time. He denied tinnitus, vertigo, and otalgia. He had been employed as a maintenance worker at a hospital for the past 15 years. The examiner noted that testing indicated that the Veteran's hearing was within normal limits from 250 to 8000 hertz bilaterally and that word recognition ability was excellent bilaterally. Private treatment reports dated from December 2005 to June 2007 do not contain any complaints or findings of either a hearing loss or tinnitus. A VA audiological evaluation, which included review of the claims files, was conducted in April 2008. The Veteran indicated that his tinnitus started within the past year. Audiometric examination revealed bilateral pure tone thresholds from 500 to 4000 hertz of 20 decibels or lower. Maryland CNC word list speech recognition scores were 96 percent in the right ear and 98 percent in the left ear. The examiner noted that the Veteran's hearing was within normal limits and concluded that it was less likely as not that any current tinnitus is caused by or a result of military service because tinnitus was denied on the Veteran's Post Deployment Health Assessment and because his hearing is within normal limits. Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider is weighed by such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. Prejean v. West, 13 Vet. App. 444 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379 (1998). See also Claiborne v. Nicholson, 19 Vet. App. 181 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345 (1998). In order for a medical opinion to be probative, the medical examiner must have correct information regarding the relevant facts of the case. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), Guerrieri v. Brown, 4 Vet. App. 467 (1993) (observing that the evaluation of medical evidence involves inquiry into, inter alia, the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches); see Shipwash v. Brown, 8 Vet.App. 218 (1995); Flash v. Brown, 8 Vet.App. 332 (1995) (regarding the duty of VA to provide medical examinations conducted by medical professionals with full access to and review of the Veteran's claims folder); but see D'Aries v. Peake, 22 Vet. App. 97, 106 (2008) (holding that it is not necessary for a VA medical examiner to specify review of the claims folder where it is clear from the report that the examiner has done so and is familiar with the claimant's extensive medical history). The evidence on file does not support a grant of service connection for either bilateral hearing loss or tinnitus. Audiological evaluations in September 2003, January 2006, and April 2008 are all within the VA definition of normal limits, with bilateral pure tone threshold from 500 to 4000 hertz of 20 decibels or fewer. Congress specifically limits entitlement for a service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110, 1131; see also Brammer v. Derwinski, 3 Vet. App. 223 (1992). In Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997), it was observed that 38 U.S.C.A § 1131, as well as other relevant statutes, only permitted payment for disabilities existing on and after the date of application for such disorders. The United States Court of Appeals for the Federal Circuit (Federal Circuit) observed that the structure of these statutes "provided strong evidence of congressional intent to restrict compensation to only presently existing conditions," and VA's interpretation of the law requiring a present disability for a grant of service connection was consistent with the statutory scheme. Degmetich, 104 F.3d at 1332; and see Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding VA's interpretation of the provisions of 38 U.S.C.A § 1110 to require evidence of a present disability to be consistent with congressional intent); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (the law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a disability). Simply put, in the absence of proof of present disability, namely hearing loss disability, there can be no valid claim. With respect to the claim for service connection for tinnitus, the VA examiner concluded on evaluation in April 2008, which included review of the claims files, that tinnitus is not due to service because the Veteran noted on Post-Deployment Health Assessments in October and December 2005 that he did not have tinnitus and because he does not have hearing loss. Due consideration has been given to the Veteran's statements in support of his claims. Although the Veteran is competent to report his symptoms, he is not competent to opine that he currently has bilateral hearing loss and/or tinnitus due to service. The Board does not dispute that the Veteran was exposed to acoustic trauma in service; however, as the evidence does not show hearing loss or tinnitus due to service, service connection for hearing loss and tinnitus is denied. Based on the above, the Board finds that the preponderance of the evidence is against the Veteran's service connection claims for bilateral hearing loss and tinnitus, and the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. REMAND The Board notes that although the Veteran has complained of left ankle and foot pain due to either service or service-connected disability, no VA evaluation with nexus opinion has been conducted with respect to the issue of entitlement to service connection for left ankle or foot disability, to include on a secondary basis. The Board finds that an examination with nexus opinion is warranted prior to Board adjudication of this issue. Accordingly, the case is REMANDED for the following actions: 1. The AMC/RO will contact the Veteran and obtain the names, addresses, and dates of treatment of all health care providers, both VA and non-VA, who have treated him for a left ankle or foot disability since May 2012, which is the date of the most recent medical evidence on file. After securing the necessary authorization, attempt to obtain copies of any pertinent treatment records identified by the Veteran that have not been previously secured. If VA is unable to secure these records, VA must notify the Veteran and (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts that VA made to obtain those records; (c) describe any further action to be taken by VA with respect to the claim; and (d) notify him that he is ultimately responsible for providing the evidence. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2011). 2. Following completion of the above, the AMC/RO will schedule the Veteran for the appropriate VA examination to ascertain whether he has a left ankle or foot disability due to service or to service-connected disability. The examiner must review the entire record in conjunction with the examination. All studies or tests deemed necessary should be conducted. After a thorough review of the Veteran's records, including his service treatment records, and a full clinical evaluation, the examiner should answer the following question and identify the basis upon which the opinion is based: If a current diagnosis of left ankle and/or foot disability is rendered, is it at least as likely as not, (i.e., 50 percent or greater probability), that the disability was incurred in or aggravated beyond normal progression by service or is proximately due to, or aggravated by any service-connected disability. If aggravation is found, the examiner should specifically address the baseline level of disability before it was aggravated by any service-connected disability and point out the clinical records supporting the conclusion. If the requested opinion(s) cannot be provided without resort to speculation, the examiner should so state and explain why an opinion would be speculative, including noting whether there is additional information that could enable the examiner to provide the necessary opinion or whether the inability to provide the opinion was based on the limits of medical knowledge. 3. The AMC/RO must notify the Veteran that it is his responsibility to report for the above examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for a scheduled examination, documentation will be obtained which shows that notice scheduling the examination was sent to the last known address. It will also be indicated whether any notice that was sent was returned as undeliverable. 4. Thereafter, the AMC/RO will review the claims files and ensure that the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. See 38 C.F.R. § 4.2 (If the findings on an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes). 5. After the development requested above has been completed to the extent possible, the AMC/RO should again review the record and readjudicate the claim for entitlement to service connection for left ankle or foot disability, including as secondary to service-connected disability. If the benefit sought on appeal remains denied, the Veteran and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of this REMAND is to comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. The RO and the Veteran are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the appellate courts. It has been held that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs