Citation Nr: 1323564 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 12-35 465 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for residuals of frostbite of the right great toe. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran served on active duty from January 1951 to December 1952. This matter arises before the Board of Veterans' Appeals (Board or BVA) from a September 2011 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that recent VA medical records, available through the Compensation and Pension Records Interchange (CAPRI), were uploaded to the Veteran's electronic Virtual VA folder in June 2013 and considered by the RO in the most recent Supplemental Statement of the Case. Because the current appeal includes records that are located only in the Virtual VA system, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Tinnitus is reasonably shown to have had its origin during the Veteran's military service. 2. The preponderance of the competent and credible evidence of record does not show that the Veteran was diagnosed with frostbite of the right great toe at any time during the pendency of the appeal. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, his tinnitus was incurred during his military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. Frostbite of the right great toe was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Before addressing the merits of the issues on appeal, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. As will be discussed in further detail in the following decision, the Board is granting the Veteran's claim for service connection for tinnitus. In light of this complete grant of this portion of the Veteran's appeal, no further discussion of VA's duty to notify the Veteran and to assist him in the development of this claim is necessary. With regard to the Veteran's claim for service connection for frostbite of the right great toe, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in May 2011 of VA's duty to assist him in substantiating his claim and the effect of this duty upon his claim. This letter also informed him of how disability ratings and effective dates are assigned. Dingess, 19 Vet. App. at 484. Because the letter addressed all notice elements and predated the initial adjudication by the AOJ in September 2011, nothing more is required. Thus, the Board concludes that all required notice has been given to the Veteran. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board also finds that VA has satisfied its duty to assist the Veteran in the development of the claim adjudicated herein. Pertinent in-service and post-service treatment reports have been obtained and associated with the claims file and/or Virtual VA folder. Although a VA examination was not scheduled to obtain a medical opinion, the Board finds that it is not necessary. Under the VCAA, VA is obliged to provide an examination when the veteran presents a claim for service connection and meets the threshold requirements that there was an event, injury, or disease in service; there is evidence of current disability or recurrent symptoms; and the evidence of record indicates that the claimed disability or symptoms may be associated with service. 38 U.S.C.A. § 5103A(d) 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006) and Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). As discussed below the Veteran failed to submit or identify any medical evidence showing a current diagnosis of, or treatment for residuals of frostbite of the right great toe. Accordingly, an examination is not required here, even under the low threshold of McLendon. Thus, the Board finds that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claims under the VCAA. No useful purpose would be served in remanding this matter for yet more development. A remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit to the Veteran. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); & Quartuccio v. Principi, supra. Law and Analysis The Veteran seeks service connection for tinnitus and frostbite of the right great toe. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). After considering all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). I. Tinnitus The Veteran contends that he has tinnitus that is directly related to excessive noise exposure during service. Specifically, he asserts that as a field lineman with an artillery battalion he was exposed to noise from Howitzers. Furthermore, on his application form, the Veteran reported the onset of tinnitus since military service that has continued since then. See VA Form 21-526, Veteran's Application for Compensation and/or Pension received in April 2011. Tinnitus is defined as a noise in the ear, such as ringing, buzzing, roaring, or clicking, that is usually subjective in type. See Dorland's Illustrated Medical Dictionary 1956 (31st ed. 2007). And, indeed, because of the inherently subjective nature of tinnitus, it is readily capable of even lay diagnosis. See Charles v. Principi, 16 Vet. App. 370 (2002). With regard to the Veteran's lay statements, the Board notes that competent lay evidence is any evidence not requiring that the proponent have specialized education, training or experience, but 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(a)(2). Competent lay evidence is evidence provided by a person who has personal knowledge (that is, that he/she actually observed; derived from his/her own senses) of facts or circumstances and conveys matters that can be observed and described by a lay person. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this regard, the Board acknowledges that the Veteran is competent to give evidence about what he sees and feels; for example, he is competent to report that he has problems with ringing in his ears since service. In addition, based on the evidence submitted and lay assertions provided in support of his claim, the Board finds the Veteran to be credible with respect to his assertions. In addition, the Board finds that there is little controversy as to whether the Veteran was exposed to noise trauma in service. His DD-214 lists his military occupational specialty (MOS) as lineman. Therefore, his account of his in-service noise exposure appears credible and consistent with the circumstances of his service. Moreover acoustic trauma in service has been conceded by the RO (see June 2013 Supplemental Statement of the Case). Thus, the Board also concedes exposure to noise in service. See 38 U.S.C.A. § 1154(a) (West 2002). So, the question remains as to whether the Veteran's tinnitus is associated with his now conceded in-service noise exposure. Service treatment records are entirely negative for complaints or findings of tinnitus at any time during service or at the time of discharge. Likewise, there are no medical records immediately after the Veteran's service discharge that contain a diagnosis of tinnitus. In fact, the claims folder is devoid of any pertinent treatment records or other medical documents until a September 2011 VA examination report, almost 60 years later. At that time, the Veteran was referred for examination for the specific purpose of obtaining an opinion as to whether or not his current tinnitus could be related to service. His chief complaint was tinnitus since military service and his noise history included exposure to 8-inch Howitzers and other gunfire as well bombings, airplanes, and mortars without hearing protection. As a civilian the Veteran was employed as a factory manager and reported no recreational noise exposure. The examiner reviewed the service treatment records noting there was no diagnosis or complaint of tinnitus. She referred to two exams from the Veteran's Reserve service dated in 1964 and 1967 which show normal hearing in both ears except for mild loss at 6000 Hertz in the left ear. She noted that there was no evidence of tinnitus until 2011 and that the Veteran likely had some degree of occupational noise exposure working in factories. Based on a lack of evidence in the service treatment records showing a diagnosis of tinnitus during active duty as well as lack of evidence via, VA, private or reserve records showing a diagnosis of tinnitus within a reasonable timeframe following separation, the audiologist concluded that it was impossible to resolve the issue of tinnitus without resorting to mere speculation. The Board notes that relying on the VA examiner's hesitance to offer a definitive opinion "without resort to speculation" is disfavored by the courts, see Jones v. Shinseki, 23 Vet. App. 382, 390 (2009), and such an opinion by itself provides neither positive nor negative support for the claim. Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed. Cir. 2009). Thus, this opinion is of little, if any, probative value as to the question of a nexus between the claimed tinnitus and the Veteran's service. In determining whether service connection is warranted for disease or disability, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran 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 (1990). Although tinnitus was not diagnosed until decades after service and the recent VA examiner could not determine if it was related to military service without resorting to speculation, the Board is satisfied that it cannot be clearly disassociated from the Veteran's conceded in-service exposure to loud noise. In reaching this conclusion, the Board acknowledges that there is inconsistent evidence as to whether the Veteran's tinnitus had its onset during military service. As noted previously, service treatment records are entirely negative for complaints of tinnitus. At service discharge in 1952, the Veteran was given the opportunity to identify any history or symptoms associated with the claimed in-service acoustic trauma, but did not indicate any pertinent complaints and none are documented. Moreover there follows an almost 60-year period during which the Veteran did not seek or require any form of treatment or evaluation for tinnitus. In addition, the 2012 VA audiologist acknowledged the Veteran's history of in-service noise exposure, but also noted that the post-service occupational noise exposure could not be ruled out as contributing to the hearing loss. Also she could not determine, without resorting to speculation, whether the tinnitus is related to service. On the other hand, while the Board is not entirely satisfied with the VA opinion, it is significant that the audiologist found that some degree of the Veteran's tinnitus could be due to his history of noise exposure and that there are no medical opinions to the contrary. Moreover, of particular significance to the Board is the Veteran's conceded in-service noise exposure (as is confirmed by his duties as a lineman) as well as his competent descriptions of tinnitus since service (assertions that he is competent to make). See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Board notes also that the Veteran has since explained that, although he was employed in a factory, he was not on the floor, but rather was a plant manager with an air-conditioned office, apparently away from the noise. See VA Form 9 received in December 2012. That said, there is no adequate reason to reject the evidence of record that is favorable to the Veteran. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (in evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole); Evans v. West, 12 Vet. App. 22, 26 (1998). While the supporting medical evidence is not unequivocal, it has nevertheless placed the pertinent record in relative equipoise. For these reasons, the Board resolves all reasonable doubt in favor of the Veteran and grants service connection for tinnitus. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. II. Frostbite of the Right Great Toe The Veteran claims that he was exposed to severe cold weather while serving in Korea and that as a result he now has frostbite affecting the right great toe. He contends that while stationed in the Kum Wah Valley of North Korea the temperatures during the winter were 55 below zero and the river was frozen solid. He stated that although he was fitted with cold weather gear he spent a lot of his time in foxholes with 3-4 inches of water and also had to cross rice paddies. He now has pain, stiffness, and numbness of the right great big toe. See VA Form 21-526, Veteran's Application for Compensation and/or Pension received in April 2011. While an in-service cold weather injury has not been verified, the Board notes that the Veteran's DD 214 Form reflects that he served as a lineman during the Korean conflict. The claims file also includes copies of various undated photographs purportedly taken of and/or by the Veteran while stationed in Korea in the winter of 1951-1952. As such, even though service treatment are negative for complaints of, treatment for, or findings of frostbite, the Board concedes that the Veteran was exposed to extreme cold during his military service and that he suffered the requisite in-service injury or disability as contended. See also 38 U.S.C.A. § 1154(a) (West 2002). The Board finds however that the primary impediment to a grant of service connection is the absence of medical evidence of a current disability. Here, the greater weight of the medical evidence indicates that the Veteran does not currently have frostbite residuals involving the right great toe. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the Court's 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 and therefore the decision based on that interpretation must be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the absence of proof of a present disability, there can be no valid claim. Rabideau v. Derwinski, 2 Vet. App. 141, 143- 44 (1992). In this case, the overwhelming medical evidence indicates that the Veteran does not currently have a chronic residual disability of frostbite involving the right great toe. There is no post-service evidence that he is currently being treated for frostbite. See VA outpatient treatment records dated from April 2002 to September 2011 and Virtual VA electronic file records dated from January 2013 to June 2013. Moreover, these treatment records are unrebutted by any other medical evidence to the contrary. The Veteran has not identified or produced any acceptable evidence, medical or otherwise, that would tend to show any identifiable pathology of the right great toe. While the Board does not dispute that he may experience some sort of recurring symptomatology involving his right great toe, there is no objective clinical confirmation that he actually suffers from frostbite and his post-service assertion alone cannot satisfy that criteria. See Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001); Sanchez-Benitez v. West, 13 Vet. App. 282 (1999) (service connection may not be granted for symptoms unaccompanied by a diagnosed disability). Without a pathology to which the Veteran's complaints of pain, stiffness, and numbness can be attributed, there is no basis to find a disability for which service connection may be granted. Certainly, absent a finding that the Veteran has been diagnosed with frostbite of the right great toe at any time during the appeal period, no valid claim for service connection exists. See also McClain v. Nicholson, 21 Vet. App. 319 (2007) (which stipulates that a service connection claim may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests that the disability resolved). Consideration has of course been given to the Veteran's personal assertion that he has a disability of the right great toe. He is more than competent to endorse symptoms such as pain, stiffness, and numbness. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the process of diagnosing frostbite falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." Based on this evidentiary posture, service connection cannot be awarded. Accordingly, for these reasons, the preponderance of the evidence is against the claim. There is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107(b). ORDER Service connection for tinnitus is granted. Service connection for residuals of frostbite of the right great toe is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs