Citation Nr: 1326235	
Decision Date: 08/19/13    Archive Date: 08/26/13

DOCKET NO.  10-16 480	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss disability.

2.  Entitlement to service connection for tinnitus disability. 

3.  Entitlement to service connection for a headache disability. 


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran 



ATTORNEY FOR THE BOARD

Sara Schinnerer, Counsel


INTRODUCTION

The Veteran had active service from April 1965 to October 1968. 

This appeal comes before the Board of Veterans' Appeals (Board) from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.   

The Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge in February 2013; a transcript of the hearing is associated with the claims file.

The record before the Board consists of the Veteran's paper claims file and an electronic file known as Virtual VA.  

The issues of entitlement to service connection for tinnitus disability and for a headache disability are addressed in the REMAND that follows the decision below. 


FINDING OF FACT

Bilateral hearing loss disability has not been present at any time during the pendency of the claim.


CONCLUSION OF LAW

Bilateral hearing loss disability was not incurred in or aggravated by active service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012).

REASONS AND BASES FOR FINDING AND CONCLUSION

Notice and Assistance

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  

They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  

The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The record reflects that the Veteran was provided all required notice in a letter mailed in December 2008, prior to the initial adjudication of the claim.

As for the duty to assist, the Board finds that all necessary assistance has been provided to the Veteran.  In this regard, the Board notes that VA has obtained the Veteran's service treatment records, as well as post-service treatment records, and Social Security Administration records.  The Veteran was also provided an appropriate VA examination in response to the claim.  All known and available records relevant to the issue on appeal have been obtained, and the Veteran has not contended otherwise.  

Accordingly, the Board will address the merits of the claim of entitlement to service connection for bilateral hearing loss disability. 

Legal Criteria  

Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  

For the purposes of applying the laws administered by VA, hearing impairment will be considered to be a disability when the auditory threshold level 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.  38 CFR § 3.385.

"Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary 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 Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  

To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Factual Background and Analysis

The Veteran contends that his current bilateral hearing loss is related to noise trauma in service.  Specifically, during a February 2013 hearing before the Board, he testified that he was subjected to excessive noise coincident to his duties as a mechanic working on planes while in the United States Air Force.  

The Veteran's service treatment records are negative for evidence of hearing loss disability.

Following service, the Veteran's original claim for VA compensation for hearing loss disability was received in November 2008. 

VA outpatient treatment records dated from 2006 through 2009 are negative for findings of a hearing loss disability.  Likewise, the Veteran's Social Security Administration records are also negative for findings of a hearing loss disability. 

A February 2009 VA audiological examination report notes that the Veteran reported a history of noise exposure in service, without the use of hearing protection, coincident to his duties as a jet mechanic.  The examination report notes the following puretone thresholds in decibels: 




HERTZ



500
1000
2000
3000
4000
RIGHT
        15
        15
15
        20
25 
LEFT
        10
        10
15
15 
        25

Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 98 percent in the left ear.  Upon review of the claims file, the examiner noted that the Veteran's hearing was normal, bilaterally.

There is no medical evidence of record showing that the Veteran has ever had sufficient hearing impairment in either ear to qualify as a disability for VA compensation purposes.  Moreover, the February 2009 VA examination report shows that no hearing loss disability was present.  

The Board acknowledges that the Veteran is competent to state that he experiences hearing loss.  However, there is nothing in the record that shows that he is competent to state that he has sufficient hearing impairment to qualify as a disability for VA compensation purposes.  In any event, even assuming that the Veteran's statements are competent evidence of the presence of hearing loss disability, his statements are clearly of less probative value than the medical evidence showing that his hearing impairment is not sufficient to qualify as a disability.

Accordingly, the Board must conclude that service connection is not warranted for this claimed disability.  In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim.


ORDER

Service connection for bilateral hearing loss disability is denied. 


REMAND

Additional development is required before the remaining issues on appeal are adjudicated.  

Regarding the claim of entitlement to service connection for tinnitus disability, the Veteran was afforded a VA examination in February 2009, during which tinnitus was diagnosed.  The examiner noted the Veteran's report of ringing in his ears since service, as well as his report of exposure to acoustic trauma during service due to his assignment as a jet mechanic.  The examiner, however, opined that the Veteran's current tinnitus was the result of a non-auditory cause, and likely related to migrainous episodes.  The examiner concluded that the Veteran should be referred to another medical provider for a determination as to the etiology of his current tinnitus disability.  Accordingly, another medical examination and opinion are necessary to make a determination in this case.  

With respect to his claim of entitlement to service connection for a headache disability, during the February 2013 hearing before the Board, the Veteran asserted that he experienced headaches during service, that have continued since separation from service.  He further asserted that he sought treatment for his headaches within six months after separation from service.  

VA's duty to assist a claimant includes obtaining a thorough and contemporaneous examination where necessary to reach a decision on the claim.  See 38 U.S.C.A. 
§ 5103A; 38 C.F.R. § 3.159.  In light of the Veteran's history of headaches during service and the fact that the Veteran has not been provided a VA examination in response to this claim, the Board finds that the Veteran should be afforded a VA examination to determine the nature and etiology of any headache disorder present during the period of the claim.  See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  

Finally, regarding his claimed tinnitus and headache disabilities, during the aforementioned hearing before the Board, the Veteran stated that he was treated at Boston City Hospital and Massachusetts General Hospital, shortly following discharge from service.  He further stated that he received ongoing treatment from the VA Medical Center located in Tampa, Florida.  As the aforementioned private and VA outpatient treatment records are potentially relevant to the issues on appeal, further development to obtain these records is in order.  

Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC) for the following actions:

1.  The RO or the AMC should undertake appropriate development to obtain any outstanding, pertinent treatment records, to include records from Boston City Hospital and Massachusetts General Hospital, located in Boston, Massachusetts, as well as the Veteran's complete outpatient treatment records from the VA Medical Center in Tampa, Florida.  If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran so notified.

2.  Thereafter, the RO or the AMC should arrange for the Veteran to be examined by a physician with sufficient expertise to determine the etiology of any tinnitus present during the period of the claim.  The claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and reviewed by the examiner in conjunction with the examination. 

Any indicated evaluations, studies, and tests deemed to be necessary should be accomplished.  

Based upon the examination results and the review of the Veteran's pertinent medical history, the examiner should state an opinion with respect to any tinnitus disorder present during the period of the claim as to whether there is a 50 percent or better probability that the disorder originated during service, is otherwise etiologically related to service, or was caused or permanently worsened by a headache disorder.

The examiner must consider and comment on the February 2009 VA examination report, which includes the examiner's statement that the Veteran's current tinnitus was the result of a non-auditory cause, and likely related to migrainous episodes.

The rationale for all opinions expressed must also be provided.  If any required opinion cannot be provided, the examiner should explain why.

3.  The RO or the AMC should arrange for the Veteran to be examined by a physician with sufficient expertise to determine the etiology of all headache disorders present during the period of the claim.  The claims file and any pertinent evidence in Virtual VA that is not contained in the claims files must be made available to and reviewed by the examiner in conjunction with the examination. 
Any indicated evaluations, studies, and tests deemed to be necessary should be accomplished.  

Based upon the examination results and the review of the Veteran's pertinent medical history, the examiner should state an opinion with respect to each headache disorder present during the period of the claim as to whether there is a 50 percent or better probability that the disorder originated during service or is otherwise etiologically related to service.

The rationale for all opinions expressed must also be provided.  If any required opinion cannot be provided, the examiner should explain why.

4.  The RO or the AMC should ensure that the Veteran is provided with adequate notice of the date and place of any requested examinations.  A copy of all notifications, including the address where the notice was sent, must be associated with the record if the Veteran fails to report for the examination.  The Veteran is to be advised that failure to report for a scheduled VA examination without good cause may have adverse effects on his claim.

5.  The RO or the AMC should undertake any additional development it determines to be warranted. 

6.  Then, the claims must be readjudicated.  If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period of time for response before the case is returned to the Board for further appellate action.

By this remand the Board intimates no opinion as to any final outcome warranted.

The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).

This REMAND must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or the Court 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).



______________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs