Citation Nr: 1322216 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 04-37 294 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for right ear hearing loss disability. 2. Entitlement to service connection for left ear hearing loss disability. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for a right foot disability. 5. Entitlement to service connection for a left foot disability. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION The Veteran, who is the Appellant, served on active duty from July 2001 to October 2002 with the U.S. Coast Guard. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision, dated in September 2003, of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2009 and March 2011, the Board remanded the claims for further development. In accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901, in February 2013 the Board obtained a medical expert opinion from the Veterans Health Administration (VHA). The claims of service connection for left and right foot disabilities are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A right ear hearing loss disability by VA standards is not shown. 2. A left ear hearing loss disability was not affirmatively shown to have had onset during service; a left ear hearing loss disability was not manifested to a compensable degree within one year from the date of separation from service; and a left ear hearing loss disability, first diagnosed after service beyond the one-year presumptive period for a hearing loss disability as a chronic disease, is unrelated to an injury, disease, or event in service. 3. Tinnitus is not related to an injury, disease, or event during service. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1112, 1154(a), (b) 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). 2. The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1112, 1154(a), (b), 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). 3. The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre- and post- adjudication VCAA notice by letters dated in February 2003, June 2010, April 2011, and June 2011. As for the content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (to the extent of pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim). To the extent that the VCAA notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The procedural defect was cured as after the RO provided content-complying VCAA notice the claims were readjudicated, as evidenced by the supplemental statement of the case in September 2012. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has attempted to obtain the Veteran's service treatment records and service personnel records, however such attempts were unsuccessful. The RO issued a formal finding of the unavailability of the records, and notified the Veteran. Additionally, attempts were made to confirm the boiler room explosion reported by the Veteran, however the Coast Guard was unable to confirm such an event. A VA examination was conducted in August 2012. In February 2013, the Board obtained a medical expert opinion from the Veterans Health Administration (VHA). The Veteran and his representative were provided a copy of the VHA opinion and afforded the opportunity to submit additional evidence and argument. The Veteran's representative responded with additional argument. The VA examination and the VHA opinion, when considered together, are adequate. As the VA examination and VHA opinion were based on the Veteran's medical history and described the disabilities in sufficient detail so that the Board's decision is a fully informed one, the VA medical evidence is adequate. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). As the Veteran has not identified any additional evidence pertinent to the claims decided herein, and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C.A. § 1110. In order to prevail on a claim of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Service connection may also be granted for a chronic disease, such as sensorineural hearing loss, when manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection for impaired hearing is subject to 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 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. Facts and Analysis The Veteran contends that during his active duty in the Coast Guard he suffered hearing loss and tinnitus as a result of a generator explosion aboard a buoy tender in late 2001 or early 2002. He has submitted a written statement from a former service man, attesting to the event and that the Veteran had difficulty with hearing since. The Board finds the account by the Veteran and by the witness credible evidence that the Veteran was exposed to acoustic trauma in service. The service treatment records are missing and attempts to obtain the ship's logs have been unsuccessful. The record does contain a statement from a shipmate, who was in the engine room, when he heard an explosion near the bilge pumps and found the Veteran dazed and that the Veteran was taken to sickbay. In October 2003, one year and a few days after the Veteran's period of active duty, an audiogram by a private audiologist showed: for the right ear the decibel thresholds as the tested frequencies of 500, 1000, 2000, and 4000 Hz were 25, 25, 20, and 20, respectively, and speech discrimination was 96 percent; for the left ear the decibel thresholds as the tested frequencies of 500, 1000, 2000, and 4000 Hz ranged from 60 decibels to 85 decibels and speech discrimination was 92 percent. The audiologist noted a history of acoustic trauma one year previously. Also, in October 2003, the findings by a private physician were exostosis and otosclerosis. On VA examination in August 2012, the results of the audiogram were found to be invalid. Right Ear The question is whether the Veteran has a hearing loss disability in the right ear under 38 C.F.R. § 3.385. The private audiogram findings do not show a decibel threshold in any one of the frequencies at 500, 1000, 2000, or 4000 Hertz of 40 decibels or greater, or decibel thresholds for at least three of the frequencies at 500, 1000, 2000, and 4000 Hertz of 26 decibels or greater. And speech recognition score was 96 percent, which does not equate to a right ear hearing loss disability under 38 C.F.R. § 3.385. And the audiogram by VA in 2012 was invalid. On the bases of the evidence of record, there is no evidence of a current right ear hearing loss disability under 38 C.F.R. § 3.385 for the purpose of VA disability compensation. The Veteran is competent to describe impaired hearing, which is within the realm of the Veteran's personal experience, and the Veteran's statement that he had impaired hearing is admissible evidence. 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; see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness). Also under certain circumstances, the Veteran as lay person is competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran as a lay person is also competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Competency is a question of fact, which is to be addressed by the Board. A hearing loss disability is not a simple medical condition because the diagnosis is based on results of audiology testing that meet the standards of hearing loss disability under 38 C.F.R. § 3.385. For this reason, the Board determines that a hearing loss disability under 38 C.F.R. § 3.385 is not a simple medical condition that the Veteran as a lay person is competent to identify. And it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to identify a hearing loss disability by audiogram under 38 C.F.R. § 3.385. Where, as here, there is a question of a diagnosis, not capable of lay observation, and a hearing loss disability is not a simple medication condition, the Veteran is not competent to state that he has a current right ear hearing loss disability under 38 C.F.R. § 3.385 that was present in service, since service, or currently. To this extent the Veteran's statements are excluded, that is, not admissible as evidence favorable to claim. Also, to the extent the Veteran has expressed an association between the current impaired right ear hearing, the Veteran's opinion as a lay person is limited to inferences that are based on the Veteran's perception and does not require specialized knowledge, education training, or experience. As the Veteran as a lay person is not competent to declare either the presence or diagnosis of a hearing loss disability under 38 C.F.R. § 3.385 based on personal observation, any inference based on what is not personally observable cannot be competent lay evidence. And it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the relationship between impaired right ear hearing loss and the acoustic trauma he described in service. As for the Veteran describing a contemporaneous medical diagnosis, there is no evidence that a medical professional has diagnosed a right ear hearing loss disability under 38 C.F.R. § 3.385. As for symptoms that later support a diagnosis by a medical professional, there is no such evidence. Also, because a hearing loss disability under 38 C.F.R. § 3.385 extends beyond an immediately observable cause-and-effect relationship, a hearing loss disability under 38 C.F.R. § 3.385 is not a type of condition under case law that has been found to be capable of lay observation. See Jandreau, at 1377, n. 4 (a lay witness is capable of diagnosing a dislocated shoulder or a simple medical condition, for example a broken leg, but not, for example, a form of cancer); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007) (lay testimony is competent to establish the presence of varicose veins); Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (it is generally the province of medical professionals to diagnose or label a mental condition); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). Applying the guidance of current case law, a hearing loss disability under 38 C.F.R. § 3.385 is more analogous to an internal process than a broken leg or varicose veins. For this reason, a hearing loss disability under 38 C.F.R. § 3.385 is not a type of condition under case law that has been found to be capable of lay observation. It is the Veteran's general evidentiary burden to establish all elements of the claim, including evidence of a current disability. 38 U.S.C.A. § 5107(a); Fagan v. Shinseki, 573 F.3d. 1282, 1286 (Fed. Cir. 2009). Without competent evidence that the Veteran has current right ear hearing loss disability under 38 C.F.R. § 3.385, there is no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). And the Board need not address the theories of service connection, pertaining to chronicity, continuity of symptomatology, or presumptive service connection for a chronic disease. In the absence of competent evidence of a current right ear hearing loss disability under 38 C.F.R. § 3.385, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply, considering the heightened obligation to consider carefully the benefit of the doubt. 38 U.S.C.A. § 5107(b); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Left Ear The service treatment records are missing and attempts to obtain the ship's logs have been unsuccessful. The record does contain a statement from a shipmate, who was in the engine room, when he heard an explosion near the bilge pumps and found the Veteran dazed and that the Veteran was taken to sickbay. The description by the Veteran and by the lay witness of an explosion near the bilge pumps and that the Veteran was dazed and taken to sickbay is satisfactory evidence that the Veteran experienced acoustic trauma in service. The incident described by the Veteran and lay witness answers the question of what happened, but does not answer the questions of a current disability, that is, a left ear hearing loss disability under 38 C.F.R. § 3.385, or of a relationship or nexus of a left ear hearing loss disability and the incident in service. Competent and credible evidence is still required to establish a current left ear hearing loss disability and nexus to service. As for a current disability in October 2003 one year and a few days after the Veteran's period of active duty, an audiogram by a private audiologist showed a left ear hearing loss under 38 C.F.R. § 3.385 as the decibel thresholds at the tested frequencies were each greater than 40 decibels. A subsequent audiogram by VA was found to be invalid. As the service treatment records are missing, the evidence is inconclusive on the theories of service connection, based on affirmatively showing inception of a left ear hearing loss disability in service under 38 C.F.R. § 3.303(a) or chronicity under 38 C.F.R. § 3.303(b). Nevertheless, a hearing loss disability of the sensorineural hearing type is recognized as "chronic" disability under 38 C.F.R. § 3.309(a), and the provisions of 38 C.F.R. § 3.303(b), pertaining continuity of symptomatology apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomatology requires evidence of a nexus between the current disability and the postservice symptoms. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (continuity of symptoms requires evidence of a nexus between the current disability and the postservice symptoms, which are identical to the symptoms that began in service.) As for the Veteran's lay evidence, the Veteran is competent to describe symptoms of impaired hearing in service and since service. 38 C.F.R. § 3.159; Layno, at 71. To this extent, the Veteran's lay statements of impaired hearing since service are competent evidence of postservice continuity of symptomatology. The Veteran asserts that his current left ear hearing loss disability is a continuation of the impaired hearing he experienced in service, which is an expression of a causal relationship or nexus between the current disability and continuity of symptoms. As the statement is an inference based on facts, it is an opinion rather than a statement of fact. The Veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson, at 316. In addition to describing symptoms of impaired hearing, which is capable of lay observation, the Veteran as a lay person is competent to identify a simple medical condition, or describe a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, at 1377. The question then is whether the Veteran as a lay person is competent to offer an opinion on the causal relationship or nexus between the current left ear hearing loss disability and the postservice symptomatology. As explained previously, a hearing loss disability under 38 C.F.R. § 3.385 is not the type of a condition under case law that has been found to be capable of lay observation. Also a hearing loss disability under 38 C.F.R. § 3.385 is not simple medical condition, because the disability cannot be identified or diagnosed by the Veteran as a lay person based on mere personal observation, that is, without specialized education, training, or experience in interpreting an audiogram, such as a an audiologist or other medical professional, who is trained to interpret an audiogram. Although the Veteran is competent to describe impaired hearing, the Veteran is not competent to state that the impaired hearing had reached the level of a disability under 38 C.F.R. § 3.385, which is measured by audiometric testing. As a hearing loss disability under 38 C.F.R. § 3.385 is not a condition that can be identified based on personal observation, either by case law or as a simple medical condition under Jandreau, any inference based on what is not personally observable cannot be competent lay evidence. And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to identify or diagnose a hearing loss disability under 38 C.F.R. § 3.385 or to offer an opinion on the causal relationship or nexus between the current left ear hearing loss disability and the continuity of symptoms that the Veteran avers. For these reasons, the Veteran lay opinion is not competent evidence of a causal relationship or nexus between the current left ear hearing loss and the postservice symptomatology. Since the Veteran's lay opinion is not competent evidence, the lay opinion is excluded, that is, not admissible as evidence and cannot be considered as competent lay evidence favorable to claim based on continuity of symptomatology. Although service connection is not established under either 38 C.F.R. § 3.303(a) or by chronicity or by continuity of symptomatology under 38 C.F.R. § 3.303(b) on the basis of lay evidence, service connection may still be established based on an initial diagnosis after service, when all of the evidence, including that pertinent to service, shows that the disability was incurred in service. 38 C.F.R. § 3.303(d). To the extent the Veteran's lay evidence is offered as proof of the presence of a left ear hearing loss disability under 38 C.F.R. § 3.385 in service and since service, the Veteran's evidence is not competent evidence, and the lay evidence is not admissible as evidence and cannot be considered as competent evidence favorable to the claim. As for the Veteran reporting a contemporaneous medical diagnosis, the medical evidence shows that a left ear hearing loss disability under 38 C.F.R. § 3.385 was shown on audiogram in October 2003. As for symptoms described by the Veteran that later support a diagnosis by a medical professional, no medical professional has attributed the current left ear hearing loss disability to the incident in service described by the Veteran. As for the medical evidence, the only competent medical evidence of record pertaining to causation or a nexus to service consists of the VA examination in August 2012 and the opinion of a VHA expert. The VA examiner expressed the opinion that the left ear hearing loss was not caused by or a result of military service because the diagnosis of exostosis does not necessarily produce hearing loss, and otosclerosis is not due to noise exposure or trauma. In February 2013, a VHA expert, an audiologist reviewed the Veteran's file. The VHA expert stated that the results of the private audiogram in 2003 were consistent with a left ear hearing loss disability under 38 C.F.R. § 3.385, but that left ear sensorineural hearing loss was not related to acoustic trauma described by the Veteran. The VHA expert stated that the concussive effect of an explosion as described by the Veteran does not cause exostosis or otosclerosis as found in October 2003. The VHA expert explained that audiogram in 2003 showed bone conduction loss that in conjunction with an excellent speech score in the left ear, strongly suggested that the hearing loss was due to otosclerosis and not acoustic trauma. Finally, the VHA expert stated that hearing loss as caused by an explosion would usually cause bilateral symmetrical hearing loss which was not evidenced in the audiogram in 2003. There is no medical evidence to the contrary. The Board therefore finds that the Veteran's lay evidence in describing symptoms of impaired hearing in service and since, which is capable of lay observation, is outweighed by the competent medical evidence. And the Board finds the medical evidence persuasive, which opposes the claim. Finally, while left ear hearing loss by VA standards was demonstrated just more than one year following the Veteran's separation from active duty in October 2002, service connection on a presumptive basis is not warranted as hearing loss was not manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309, Part 4, § 4.85. The criteria for a compensable rating for a single ear are Level 10 under Table VII and there is no Level 10 rating with speech discrimination of 92 percent. For the above reasons, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply, considering the heightened obligation to consider carefully the benefit of the doubt. 38 U.S.C.A. § 5107(b); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Tinnitus In October 2003, tinnitus was noted. On the VA audiology examination in August 2012, the Veteran complained of constant tinnitus that began following the engine room explosion during service. After considering the Veteran's reported history, the VA examiner stated that it was less likely than not that tinnitus was caused by or a result of military noise exposure. The VA examiner noted that the Veteran was diagnosed with otosclerosis in October 2003 and that tinnitus is one of the most common symptoms of otosclerosis. Although the Veteran asserts that the incident is service resulted in tinnitus, the Veteran's lay evidence is outweighed by the medical nexus opinion offered by a VA examiner who based the opinion on a review of the Veteran's medical records and the Veteran's history of onset in service. The VA examiner cited medical treatise evidence to support the conclusion that tinnitus was a symptom of the otosclerosis first diagnosed more than one year after the Veteran's separation from active duty. In sum, the weight of the credible evidence shows that tinnitus is not related to service or the incident in service. For these reasons, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply, considering the heightened obligation to consider carefully the benefit of the doubt. 38 U.S.C.A. § 5107(b); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). ORDER Service connection for a right ear hearing disability is denied. Service connection for a left ear hearing disability is denied. Service connection for tinnitus is denied. REMAND On the claims of service connection for disability of each foot, the Veteran contends that he sustained two separate foot injuries in service, one to the left foot during the boiler room explosion, and one on the right foot during a surfing accident in Guam. In December 2011, a private chiropractor noted that the Veteran complained that his left foot was getting worse. Given the heightened duty to assist the Veteran in light of the missing service treatment records, the Board finds that VA's duty to provide the Veteran with a VA examination and related medical opinion has been triggered. 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA examination to determine whether Veteran has: a). A left foot or a right foot disability, and, if so, b). Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), less likely than not (probability less than 50 percent), that: (i). The left foot disability is related to an injury in service as described by the Veteran; (ii). The right foot disability is related to a surfing accident in service? The Veteran's file must be made available to the VA examiner. 2. Following the above development, adjudicate the claims. If any benefit sought is denied, then provide the Veteran and his representative a supplemental statement of the case and return the case to the Board. 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 claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals 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). ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs