Citation Nr: 1322323 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 10-35 082 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for cephalgia. 2. Entitlement to service connection for hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for a disability manifested by dizziness. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran had active military service from September 1961 to July 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, that denied the benefits sought on appeal. The Veteran testified before the undersigned Veterans Law Judge at a hearing at the RO in November 2010. A transcript of that hearing has been associated with the Veteran's claims file. During the hearing, the Veteran stated that he wished to withdraw from appeal his claim of service connection for cephalgia. In light of the Veteran's statement, the Board considers the identified claim to be withdrawn and no longer in appellate status. The Board acknowledges that, following the certification of his claims to the Board in October 2010, the Veteran submitted additional evidence in support of his claims. The Board received this evidence at the November 2010 hearing. In a November 2010 statement, the Veteran waived initial review of the evidence by the RO. See 38 C.F.R. § 20.800 (2012). FINDINGS OF FACT 1. The Veteran likely has hearing loss that is attributable to his period of active military service. 2. The Veteran likely has tinnitus that is attributable to his period of active military service. 3. The Veteran does not have a currently diagnosed disability manifested by dizziness. CONCLUSIONS OF LAW 1. The Veteran has hearing loss that is the result of disease or injury incurred during active military service. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2012). 23. The Veteran has tinnitus that is the result of disease or injury incurred during active military service. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 3. The Veteran does not have a disease manifested by dizziness that is the result of disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist At the outset, the Board will address the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In this case, the Board finds that all notification and development action needed to arrive at a decision has been accomplished. In this respect, through December 2007 and June 2008 notice letters, the Veteran received notice of the information and evidence needed to substantiate his claims. Thereafter, he was afforded the opportunity to respond. Hence, the Board finds that the Veteran has been afforded ample opportunity to submit information and/or evidence needed to substantiate his claims. The Board finds that the December 2007 and June 2008 notice letters satisfy the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). In the letters, the RO also notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. The RO also requested that the Veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence. 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. See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). See also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (to be codified at 38 C.F.R. § 3.159) (removing the prior requirement that VA specifically ask the claimant to provide any pertinent evidence in his possession). These requirements were met by the aforementioned December 2007 and June 2008 letters. Further, the Veteran was provided notice regarding an award of an effective date and rating criteria in the December 2007 and June 2008 letters. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Nothing about the evidence or any response to the RO's notification suggests that the case must be re-adjudicated ab initio to satisfy the notice requirements of the VCAA. The Board also points out that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claims on appeal. The Veteran's service treatment records have been associated with the claims file, as have post-service treatment the Veteran has received from VA treatment providers. In addition, records of the Veteran's application for benefits from the Social Security Administration (SSA) have been associated with the claims file. The Veteran has also submitted a private audiological evaluation, which was conducted in November 2010. He has not otherwise alleged that there are any outstanding medical records probative of the claims that need to be obtained. The Veteran also underwent VA examination concerning his claims for hearing loss and tinnitus in May 2008. To that end, 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). Here, the Board finds that the VA examination obtained in this case is adequate, as it is predicated on audiological examination as well as consideration of the medical records in the claims file and the Veteran's history. The opinion addresses all of the pertinent evidence of record, to include statements given by the Veteran at the time of the examination, and provides a complete rationale for the opinions stated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the claims for hearing loss and tinnitus has been met. 38 C.F.R. § 3.159(c)(4). As to the Veteran's claim for a disability manifested by dizziness, the Board notes that the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court held that an examination is required when there is: (1) evidence of a current disability; (2) evidence establishing an in-service event, injury or disease, or a disease manifested in accordance with presumptive service connection regulations that would support incurrence or aggravation; (3) an indication that the current disability may be related to the in-service event; and (4) insufficient evidence to decide the case. The Board is aware that no VA examination was provided to the Veteran in conjunction with his claim for service connection for a disability manifested by dizziness but notes that the record does not call for one. See 38 C.F.R. § 3.159(c)(4) (2012). In this case, as discussed in more detail below, there is simply no suggestion in the record that the Veteran has a current diagnosed disability manifested by dizziness. As such, VA is not required to afford the Veteran an examination, and therefore, VA has no duty to inform or assist that was unmet. Duenas v. Principi, 18 Vet. App. 512, 517 (2004). See also McLendon, 20 Vet. App. at 84-86 (with no indication that a disability or persistent or recurrent symptoms of a disability may be associated with the service or another service-connected disability, claim may be denied where claimant's submissions are insufficient to grant benefits or trigger duty to assist). Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of an injury or disease; and (3) evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). If an organic disease of the nervous system, such as sensorineural hearing loss, becomes manifest to a degree of 10 percent or more during the one-year period following a Veteran's separation from qualifying service, the condition may be presumed to have been incurred in service, notwithstanding that there is no in-service record of the disorder. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those 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 Court, in Hensley v. Brown, 5 Vet. App. 155 (1993), indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a medical relationship between the Veteran's in-service exposure to loud noise and current disability. The Board notes that the Court's directives in Hensley are consistent with 38 C.F.R. § 3.303(d). Here, the Veteran contends that he experiences hearing loss, tinnitus, and a disability manifested by dizziness that are attributable to noise exposure while serving on active duty. First, the Board notes that VA audiology examination conducted in May 2008 shows a current hearing loss disability for VA purposes, as well as a current diagnosis of tinnitus. 38 C.F.R. § 3.385. The Veteran served on active duty from September 1961 to July 1964. His DD Form 214 indicates that his military occupational specialty was light weapons infantryman, and he has stated on multiple occasions that he was exposed to noise during service from his work as an infantryman and tank driver. His in-service exposure to acoustic trauma is therefore conceded. Relevant evidence consists of the Veteran's service treatment records as well as a private audiological evaluation conducted in November 2010. The Veteran also underwent VA examination in May 2008. Review of the Veteran's service treatment records reflects that reports of entrance and separation medical examinations, conducted in September 1961 and May 1964, returned normal audiological results. At the examinations, the Veteran was found to have normal hearing and normal ears. His service treatment records are silent as to any complaints of or treatment for hearing loss or tinnitus. Report of the VA examination conducted in May 2008 reflects that the Veteran reported having been exposed to acoustic trauma in service and having experienced a decrease in hearing acuity and a ringing in his ears that began during his time in service and has continued to the present. The examiner diagnosed the Veteran with bilateral sensorineural hearing loss and tinnitus "since 1963" but nevertheless opined that neither disorder is related to service. In so finding, the examiner pointed only to the normal separation audiogram and the lack of in-service complaints of tinnitus. Following the filing of the instant claim, the Veteran underwent private audiological evaluation in November 2010. At that time, he reported having been exposed to acoustic trauma from ongoing weapons fire while he was in service and complained of hearing loss and tinnitus, as well as occasional dizziness, since his time on active duty. The examiner diagnosed him with hearing loss and tinnitus but assigned no diagnosis concerning his claimed dizziness. In opining that the Veteran's hearing loss and tinnitus are likely linked to his in-service noise exposure, the examiner noted the Veteran's in-service exposure to weapons fire and reasoned that the timeframe of the onset of hearing loss and tinnitus rendered it likely that the disorders are etiologically linked to his in-service noise exposure. In addition, the Veteran testified before the undersigned Veterans Law Judge at a November 2010 hearing. At that time, he again stated that he had first experienced decreased hearing acuity and a ringing in his ears following weapons fire during active duty and had continued to experience similar symptoms since that time. In addition, the Veteran complained that he occasionally experienced dizziness or a loss of equilibrium. The Veteran has also submitted a buddy statement, dated in February 2008, from a fellow soldier who testified to the loud noises of the guns and tanks to which he and the Veteran were exposed while on active duty. Upon consideration of the above evidence, the Board finds that a grant of service connection for hearing loss and for tinnitus is warranted. The evidence shows current diagnoses of hearing loss and tinnitus that have been linked to military service. Specifically, the Veteran's private audiological examiner opined in November 2010 that the Veteran's hearing loss and tinnitus are likely related to acoustic trauma suffered in service. With regard to the Veteran's complaints of in-service noise exposure, the Board finds credible his account of noise exposure in service as it is consistent with his military occupational specialty of light weapons infantryman, as well as with records showing that he was trained on a variety of weapons and worked as a tank driver while serving on active duty. As noted above, the competent medical evidence has identified that the Veteran carries current diagnoses of both hearing loss and tinnitus. The Board acknowledges that in the May 2008 VA examination report, the examiner offered a negative etiological opinion concerning the Veteran's hearing loss and tinnitus. However, that opinion was based solely on the negative separation audiogram and the fact that the Veteran had not sought treatment for tinnitus while on active duty. The Board notes that the Court has stated, in Hensley v. Brown, that relevant regulations do not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a medical relationship between the Veteran's in-service exposure to loud noise and current disability. The Board further points out that the May 2008 VA examination is internally inconsistent, given that the examiner acknowledges that the Veteran's tinnitus began in service but nevertheless concluded that his tinnitus is not likely related to that service. Thus, the Board finds that the May 2008 VA examination is less probative than the November 2010 private opinion that offered a clear rationale for the finding that the Veteran's hearing loss and tinnitus are likely linked to active duty. Consequently, given that the Veteran is diagnosed with tinnitus and meets the definition of "hearing loss" as set forth in 38 C.F.R. § 3.385, and because he has credibly testified as to his experiences of noise exposure in service, the Board finds that it is as likely as not that the Veteran's currently diagnosed hearing loss and tinnitus are traceable to military service. With resolution of reasonable doubt in the Veteran's favor, service connection for hearing loss and tinnitus is warranted. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Regarding his claim for service connection for a disability manifested by dizziness, the Board notes as an initial matter that the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. In this case, the record does not reflect any complaints or clinical findings of a disability manifested by dizziness at any time during the appellate period. The Veteran has not otherwise made any complaints of symptoms related to his claimed disability manifested by dizziness, stating only that he experiences dizziness and problems with equilibrium on occasion. In this case, there is absent from the record competent medical evidence assigning the Veteran a diagnosis of a disability manifested by dizziness at any point during the appellate period. No medical professional provides findings or opinions to that effect, and the Veteran has not presented or alluded to the existence of any such disability or medical evidence or opinion reflecting disability. There is simply a lack of any evidence demonstrating that the Veteran has had a current diagnosis of a disability manifested by dizziness at any time during the appellate period. See 38 C.F.R. § 3.303. The Veteran is competent to provide information concerning factual matters of which he has first-hand knowledge (i.e., experiencing symptoms in service or currently). See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). However, he is not competent to say that any symptoms of dizziness that he currently experiences are attributable to service. In that connection, the Board notes that it may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Notwithstanding that fact, and as discussed above, the lack of contemporaneous medical records is something that the Board can consider and weigh against a Veteran's lay evidence. Id. In this case, although the Veteran appears to contend that he experiences a disability manifested by dizziness due to service, the Board finds persuasive that there is no notation whatsoever in the Veteran's record concerning a diagnosis of a disability manifested by dizziness at any time during the appeal period. There is simply no medical evidence demonstrating that the Veteran has sought medical treatment for a disability manifested by dizziness at any time since he filed the instant claim. Indeed, beyond a single treatment visit in September 2001 in which the Veteran was treated for "vertigo," there is no evidence that the Veteran has sought treatment for or been diagnosed with a disability manifested by dizziness at any time either during service or following his separation from active duty. In that connection, the Board acknowledges that the Veteran complained of dizziness to his private examiner in November 2010, but no diagnosis was assigned at that time, nor has any diagnosis been assigned at any time during the appeal period. Thus, in this case, when weighing the evidence of record, the Board finds probative the fact that, beyond a single incident in September 2001 during which the Veteran was seen for "vertigo" of four days' duration, the Veteran has never been treated for or diagnosed with a disability manifested by dizziness at any point either during or after service. Furthermore, as a layperson without the appropriate medical training and expertise, the Veteran is simply not competent to provide a probative opinion on a complex medical matter such as a current diagnosis for a disability manifested by dizziness. See Bostain, 11 Vet. App. at 127. Without a diagnosed or identifiable underlying disability, service connection may not be awarded. With no persuasive medical evidence of a diagnosed disability, the analysis ends, and service connection for a disability manifested by dizziness must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim of service connection for a disability manifested by dizziness, that doctrine is not applicable. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for a disability manifested by dizziness is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs