Citation Nr: 1322921 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 10-34 490 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for residuals of a back injury. 4. Entitlement to service connection for diabetes mellitus, to include as a result of chemical and pesticide exposure. 5. Entitlement to service connection for prostate cancer, to include as a result of chemical and pesticide exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1960 to December 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Louisville, Kentucky, Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2011, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The issues on appeal were adequately explained to him and the submission of evidence which he may have overlooked and which would be advantageous to his position was suggested. See 38 C.F.R. § 3.103(c) (2012). He waived agency of original jurisdiction review of evidence subsequently submitted in support of his claim. The issues of entitlement to service connection for diabetes mellitus and prostate cancer, to include as a result of chemical and pesticide exposure, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A bilateral hearing loss disability is not shown to have developed as a result of an established event, injury, or disease during active service. 2. Tinnitus is not shown to have developed as a result of an established event, injury, or disease during active service. 3. Residuals of a back injury are not shown to have developed as a result of an established event, injury, or disease during active service. CONCLUSIONS OF LAW 1. A bilateral hearing loss was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012). 2. Tinnitus was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131, 1154, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 3. Residuals of a back injury were not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131, 1154, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate his claims by correspondence dated in April 2009. The notice requirements pertinent to the issues addressed in this decision have been met and all identified and authorized records relevant to these matters have been requested or obtained. The available record includes VA treatment and examination reports, a private medical report, and the Veteran's statements and testimony in support of his claims. Unfortunately, however, VA efforts to obtain the Veteran's service treatment and personnel records were unsuccessful. In such cases, there is a heightened duty to assist him in developing evidence that might support his claim and to explain the reasons and bases for the decision. Cuevas v. Principi, 3 Vet. App. 542 (1992); Russo v. Brown, 9 Vet. App. 46 (1996); Cromer v. Nicholson, 19 Vet. App. 215 (2005). The Veteran is shown to have been adequately notified of the efforts to obtain copies of his service records and of the information necessary for further VA assistance by correspondence dated in May 2009 and September 2009. There is no evidence of any additional existing pertinent records. The Board finds that further attempts to obtain additional evidence would be futile. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). VA regulations also provide that a medical examination or medical opinion is necessary if the record does not contain sufficient competent medical evidence to decide the claim, but includes competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability, establishes that the veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease manifest during an applicable presumptive period, and indicates the claimed disability or symptoms may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4). The types of evidence that "indicate" that a current disability "may be associated" with military service include credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). VA, however, is not required to provide a medical examination when there is no credible evidence establishing an event, injury, or disease in service. Bardwell v. Shinseki, 24 Vet. App. 36 (2010). The Board finds that the Veteran's reports of treatment and symptom manifestations of a back disorder during active service and over the years after his separation from active service are inconsistent with his work history after service. The Veteran is shown to have worked in physically demanding occupations after his discharge from service as a house painter for 20 years and as a home builder for three to four years without treatment other than over-the-counter medication. There is no reasonable possibility that a present examination could substantiate the Veteran's claim as to his back disability in the absence of supporting evidence of an injury in service. Although lay statements were provided in support of the Veteran's claims in September 2009, October 2009, and November 2009, those statements provide no evidence of back problems during or for many years after service. As the evidence of an inservice injury or a continuity of symptomatology is found to be not credible, a medical opinion is not required as to this matter. There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the hearing loss, tinnitus, and back disability claims would not cause any prejudice to the appellant. Service Connection Service connection may be granted for a disability resulting from injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of the Veteran's service as shown by the veteran's service record, the official history of each organization in which the Veteran served, the Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). Service connection can be granted for certain chronic diseases if manifest to a degree of 10 percent or more within one year of separation from active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Arthritis and sensorineural hearing loss are chronic diseases for presumptive service connection purposes. For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). Continuity of symptomatology applies to those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. Feb. 2013). The United States Court of Appeals for Veterans Claims (hereinafter "the Court"), however, has held that even though a disease is not included on the list of presumptive diseases a nexus between the disease and service may nevertheless be established on the basis of direct service connection. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that when a claimed disorder is not included as a presumptive disorder direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during the service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The Federal Circuit has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Whether lay evidence is competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes 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) In determining whether evidence is credible VA may consider internal consistency, facial plausibility, and consistency with other evidence. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (superseded by statute for an unrelated point of law as stated by Duenas v. Principi, 18 Vet. App. 512 (2004)); see also Buchanan, 451 F.3d at 1337 (VA can consider bias in lay evidence and conflicting statements of the veteran in weighing credibility); Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor); Pond v. West, 12 Vet. App. 341, 345 (1999) (holding in a case where the claimant was also a physician, and therefore a medical expert, that the Board should properly consider the appellant's own personal interest in the outcome of the case). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). A hearing loss disability for VA compensation purposes is defined by regulation and impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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. See 38 C.F.R. § 3.385 (2012). Once the requirements of 38 C.F.R. § 3.385 (2012) have been met and a present hearing "disability" under applicable VA laws and regulations is found, a determination must be made as to whether the current hearing disorder is related to service. In particular, the Court has held that 38 C.F.R. § 3.385 operates to establish when a measured hearing loss is, or is not, a "disability" for which compensation may be paid, provided that the requirements for service connection are otherwise met. Hensley v. Brown, 5 Vet. App. 155 (1993) (citing CURRENT MEDICAL DIAGNOSIS & TREATMENT 110-11 (Stephen A. Schroeder et. al. eds., 1988). Even if a Veteran does not have a hearing loss disability for VA compensation purposes recorded during service, service connection may still be established if post-service evidence satisfies the criteria of 38 C.F.R. § 3.385 and the evidence links the present hearing loss to active military service. Id. at 158. The threshold for normal hearing is 0 to 20 decibels. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2012). In this case, the pertinent evidence shows that a private X-ray study in March 2005 associated with an employment physical examination revealed lumbar degenerative spondylosis. In correspondence dated in February 2007 the Veteran requested entitlement to nonservice-connected disability based upon spondylosis. In correspondence dated in March 2009 he requested entitlement to service connection including for hearing loss, tinnitus, and residuals of a back injury. He stated he had injured his back when he fell out of truck at Minot Air Force Base, North Dakota, and that his back pain had worsened after prostate surgery in August 2007. VA treatment records dated in January 2009 noted magnetic resonance imaging (MRI) revealed multi-level degenerative change. The examiner's assessment was a history of low back pain and left lower extremity pain consistent with L4 radiculopathy. Records show the Veteran underwent left L3/4 lumbar microdiscectomy. Lay statements received in September 2009, October 2009, and November 2009 note the Veteran experienced problems including back problems. The statements, however, do not attest to back problems during service or for many years after service. On VA audiology examination in January 2010 the Veteran reported noise exposure during service while working in deep well pumping stations with sporadic hearing protection use. He also reported that after service he had worked as a house painter for 20 years and as a home builder for three to four years with some exposure to saw and hammer noise. It was noted he was unable to provide a date for the onset of his tinnitus, but that he stated he had experienced ringing for several years. He also denied having had hearing difficulties at the time of his service discharge. The examiner found that, given the amount of time that had passed since service and the absence of evidence indicating some degree of hearing loss present in service or within one year of discharge, it was impossible to establish a causal relationship between a current hearing loss and military service. It was the examiner's opinion that the Veteran's hearing loss and tinnitus were less likely caused by or the result of military noise exposure. In statements and testimony in support of his claims the Veteran described having sustained a back injury in approximately 1963 when he fell out of a truck. He stated he had seen a corpsman and was confined to his barracks for about a week and put on light duty. He reported he had constant back pain since then with over-the-counter medication treatment prior to his VA treatment. He described noise exposure in service while performing maintenance in deep well pumping stations, and denied having had significant noise exposure after service as a house painter. Based upon the evidence of record, the Board finds that bilateral hearing loss, tinnitus, and residuals of a back injury are not shown to have developed as a result of an established event, injury, or disease during active service. The January 2010 VA audiologist's opinion that the Veteran's hearing loss and tinnitus were less likely caused by or the result of military noise exposure is found to be persuasive. The examiner is shown to have considered his reports of noise exposure in service, but to have noted he denied having had hearing difficulties at the time of his service discharge and that he had been unable to provide a date for the onset of his tinnitus except ringing only for several years. Although the Veteran sincerely believes his hearing loss and tinnitus were caused by his noise exposure in service, he is not competent to provide such opinions. The Board also finds the Veteran's reports of a back injury in service with subsequent continuous symptoms of back pain are inconsistent with his post-service work history in physically demanding occupations. Additionally, it is significant that he did not claim his spondylosis was a result of a service injury in his original February 2007 claim for nonservice-connected disability VA benefits. The Board finds there is no credible evidence that the Veteran had a back disorder for many years after service. Therefore, the claims for entitlement to service connection for hearing loss, tinnitus, and residuals of a back injury must be denied. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence in this case is against these service connection claim. ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for residuals of a back injury is denied. REMAND VA's duty to assist requires reasonable efforts to assist claimants in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. 38 C.F.R. § 3.159 (2012). In this case, the Veteran's service records, DD Form 214, show he completed courses in water purification and water supply. In support of his claims he also provided a copy of a certificate showing he completed a course in military medical entomology in December 1962. His statements as to having been exposed to chemicals in service as a result of his duties in water treatment and pesticides application are found to be credible. Therefore, he may be presumed to have been exposed to chemicals, including chlorine and DDT, in service. It is also significant to note that he has reported having worked as a painter for approximately 20 years after service and he may be presumed to have had chemical exposure as a result of this employment after service. In support of his claim he provided copies of internet source information in May 2011 addressing a relationship between DDT and cancer and diabetes mellitus. Therefore, additional development as to these matters is required for adequate determinations. Accordingly, the case is REMANDED for the following action: 1. The Veteran's claims file should be reviewed by an appropriate VA examiner for opinions as to whether it is at least as likely as not (50 percent probability or greater) that his diabetes mellitus and/or prostate cancer developed as a result of chemical exposure, including chlorine and DDT, during active service. All indicated tests and studies are to be performed. The examiner must review the claims file and must note that review in the report. Opinions should be provided based on a review of the medical evidence of record and sound medical principles. A complete rationale for all opinions expressed should be set forth in the examination report. 2. After completion of the above and any additional development deemed necessary, the issues remaining on appeal should be reviewed with consideration of all the evidence of record. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and should be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review of all issues for which an appeal has been perfected, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs