Citation Nr: 1327986 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 12-00 612 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for low back disability. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active service from October 1950 to October 1953. He was awarded the Combat Infantry Badge for his service during the Korean War. These matters come to the Board of Veterans' Appeals (Board) on appeal from May 2010 and August 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. 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. Bilateral hearing loss did not have its onset in service, did not manifest within one year of separation from service, and is not otherwise shown to be etiologically related to a disease, injury, or event in service, to include noise exposure in service. 2. Tinnitus did not have its onset in service, did not manifest within one year of separation from service, and is not otherwise shown to be etiologically related to a disease, injury or event in service, to include any noise exposure therein. 3. There is no competent evidence that the Veteran has a diagnosed low back disability. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1110 , 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.159, 3.303, 3.307, 3.309, 3.385 (2012). 2. The criteria for service connection for tinnitus are not met.. 38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 3. The criteria for service connection for low back disability are not met. 38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in January 2010 and May 2011. The Board notes that in February 2010, the National Personnel Records Center (NPRC) reported that the record was fire-related. However, copies of all available service treatment records were being mailed. When VA is unable to locate a claimant's records, VA should advise him to submit alternative forms of evidence to support his claim and should assist him in obtaining sufficient evidence from alternative sources. Washington v. Nicholson, 19 Vet. App. 362 (2005); Dixon v. Derwinski, 3 Vet. App. 261 (1992). In this case, the available service medical records include copies of the entrance and separation examination and other reports of sick call treatment records. The NPRC has not indicated that the Veteran's complete service treatment records are unavailable. The service medical records therefore appear to be complete. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent December 2011 statements of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained an examination with respect to the claims for service connection for bilateral hearing loss and tinnitus on appeal. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2012). Service connection may be presumed for certain chronic diseases, including sensorineural hearing loss and tinnitus, which develop to a compensable degree within one year after discharge from service, even though there is no evidence of that disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. 3.307, 3.309(a) (2012). Where the evidence, regardless of its date, shows that the veteran had a chronic condition in service or during an applicable presumption period and still has that chronic disability, service connection can be granted. That does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease entity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b) (2012). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing a service connection claim. 38 C.F.R. § 3.303(b) (2012). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Continuity of symptomatology applies only to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309(a)(2012); Walker v. Shinseki, 708 F.3d 1331(Fed. Cir. 2013). Hearing Loss and Tinnitus The Veteran contends that his current hearing loss and tinnitus are the result of acoustic trauma during active duty service. Specifically, as noted above, he avers that he experienced acoustic trauma without the benefit of hearing protection while serving as a gunner for a recoilless rifle during infantry combat service in the Korean War. As an initial matter, the Board notes that, although the Veteran's service separation form does not indicate his in-service military occupational specialty, it does show that he received the Combat Infantry Badge, which signifies that he engaged in combat with the enemy. VAOPGCPREC 12-99 (1999), 65 Fed. Reg. 6,257(2000). Therefore, his account of noise exposure during service is credible and entirely consistent with the circumstances of his service. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2012). As a combat veteran, the Veteran is entitled to have his statements regarding some events in service accepted. Accordingly, the Board concedes his acoustic trauma exposure in service. The Board will now turn to the issue of whether the Veteran's bilateral ear hearing loss and tinnitus are related to noise exposure during service. The Veteran's service medical records are negative for complaints of, treatment for, or diagnoses of hearing loss or tinnitus. During his October 1950 enlistment examination, he scored 15 out of 15 on the whispered voice test. During his October 1953 separation examination, he scored 15 out of 15 on the whispered voice test. Audiometric tests were not performed during his enlistment or separation examinations. The claims folder is devoid of any pertinent treatment records or other medical documents until a February 2006 VA medical record showing that the Veteran complained of decreased hearing in the left ear. A February 2006 VA audiological consultation report shows that the Veteran reported a recent onset of hearing loss at the right ear. He stated that he initially noticed that he was not hearing environment sounds at that ear as well as at the left. In addition to hearing loss, the Veteran reported constant bilateral "locust-like" tinnitus which had been present for five years. The audiologist noted that the Veteran history was positive for military noise exposure without hearing protection and recreational noise exposure with hearing protection. Audiometric testing demonstrated a mild sloping to moderate rising to mild sensorineural hearing loss at the right ear and normal hearing sensitivity with mild sensorineural hearing loss at the left ear. Word recognition was fair at the right ear and good at the left ear. An August 2007 VA medical record notes that the Veteran complained of decreased hearing in the left ear. He saw audiology in February 2006 and he was referred for further evaluation. The Veteran was not interested in going due to asymmetry of hearing. In May 2008, the Veteran was offered an additional hearing examination, but the Veteran stated he was not interested. In January 2010, the Veteran submitted his claim for VA disability benefits for bilateral hearing loss and tinnitus which he stated began in the 1960s with treatment from January 2008 to the present. In April 2010, the Veteran underwent a VA audiology examination, at which time, the Veteran reported he first began to notice hearing problems two to four years earlier. He reported no specific incident to cause the hearing loss. The Veteran complained of bilateral hearing loss and constant tinnitus. The Veteran stated he served on the front lines in combat for nine months and was exposed to artillery and mortar fire. He first noticed tinnitus 10 to 15 years prior. There was no specific incident to cause the tinnitus. On audiometric testing, pure tone thresholds, in decibels, were reported as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 55 55 60 LEFT 20 25 30 35 40 Speech discrimination scores on the Maryland CNC word list were 84 percent in the right ear and 92 percent in the left ear. The diagnosis was normal to mild to moderately severe SNHL in the right ear and normal to mild through 4000 Hertz to moderate SNHL in the left ear, with constant tinnitus. Tympanograms were normal bilaterally. After reviewing the claims file, the VA audiologist provided an addendum in which noted there were no audiometric results in the claims file. The Veteran reported hearing loss began two to four years ago. Therefore, it is not likely that the Veteran's hearing loss was a result of military service. The Veteran reported tinnitus began 10 to 15 years ago. There was no report of tinnitus in the service medical records. He was discharged in 1953. Therefore, it was not likely that the Veteran's tinnitus is a result of his military noise exposure. Based on April 2010 VA audiometric findings, the Board finds that the Veteran has a current bilateral hearing loss disability as defined by VA. 38 C.F.R. § 3.385 (2012). He has also been diagnosed with tinnitus. Unlike hearing loss, tinnits is the type of condition that is entirely subjective in nature, so is capable of lay diagnosis. There are many types and causes of hearing loss, so the diagnosis of type and causation or hearing loss or causation of tinnitus is beyond competence of a lay person and requires medical training. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Charles v. Principi, 16 Vet. App. 370 (2002). The determinative issue, then, is whether the current hearing loss and tinnitus are attributable to the Veteran's service, and especially to the noise exposure related to his combat infantry service. Watson v. Brown, 4 Vet. App. 309 (1993). Evidence weighing against the claims includes the fact that the service medical records are negative for any complaints or findings of hearing loss or tinnitus and that he did not seek treatment for either disability until many years after service. However, those facts alone are not dispositive of the claim, as the essence of 38 C.F.R. § 3.303(b) is continuous symptoms, not treatment. Moreover, lay evidence is potentially competent to support the presence of a claimed disability, both during and after service, even where not corroborated by contemporaneous medical evidence such as treatment records. The Board cannot determine lay evidence lacks credibility merely because it is unaccompanied by medical evidence such as treatment records. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Nonetheless, that is probative evidence to be considered and tends to refute the claim that the Veteran had a hearing loss or tinnitus while in service. Struck v. Brown, 9 Vet. App. 145 (1996) (contemporaneous medical findings may be given more probative weight than contrary evidence offered years later, long after the fact). Also weighing against the claims is the VA examiner's opinion that neither the Veteran's bilateral hearing loss, nor his tinnitus were the result of service. The VA examiner supported those conclusions with a rationale based on the evidence of record, including the Veteran's statements during the examination that his bilateral hearing loss did not start until a two to four years before the examination (more than 50 years after service), and his tinnitus did not begin until 10 to 15 years before the examination (more than approximately 40 years after military service). Although he told the VA examiner that his hearing loss onset was only two to four years earlier and that he did not begin to experiencing tinnitus symptoms until 10 to 15 years earlier, in his claim for VA benefits, he stated that the disabilities began in the 1960s, approximately seven years after discharge from service. Due to the inconsistency in his statements concerning the onset of his hearing loss and tinnitus, the Board finds that Veteran's reports of onset of hearing loss and tinnitus lack probative value because they were reported inconsistently. The Board notes that a prolonged period without complaints or symptoms of a disability can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service, which resulted in any chronic or persistent disability. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Here, the Veteran noted in his claim for VA benefits that he was treated in 2008, and at that time of a February 2006 VA audiological consultation, he reported a recent onset of hearing loss at the right ear and constant bilateral "locust-like" tinnitus which had been present for five years. The amount of time that passed between service and the first symptoms or treatment of record is evidence that weighs against the tinnitus and hearnng loss claims on a direct and presumptive basis. Furthermore, the Board finds that the April 2010 VA audiologist's opinion is probative, as it was predicated upon a thorough, accurate review of the record, to include specific assertions from the Veteran as to the actual onset of symptoms, and is supported by a sufficient rationale. Prejean v. West, 13 Vet. App. 444 (2000) (among factors for assessing the probative value of medical opinion are physician's access to the claims file and the thoroughness and detail of opinion). Moreover, the Veteran has not submitted any contrary competent evidence linking his bilateral hearing loss or tinnitus to service, aside from his own assertions of experiencing in-service acoustic trauma, a fact conceded by VA and considered by the VA examiner. Accordingly, the Board concludes that the probative evidence of record does not support the Veteran's claims of entitlement to service connection for bilateral hearing loss or tinnitus on a direct basis. Moreover, because there is no evidence that the Veteran developed hearing loss or tinnitus to a compensable degree within one year of separation from service, service connection on a presumptive basis is also not for application. The Board finds that the preponderance of the evidence is against these claims, and the claims must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Low Back Disability The first requirement for any service connection claim is evidence of a current disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Veteran asserts that he injured his back in service during a jeep incident and that heat treatment was used on his lower back. The service medical records show that the Veteran complained of left hip pain after riding in a jeep. However, the service medical records are negative for complaints, findings, or diagnosis regarding the back. Post-service medical records associated with the claims file consisting of VA medical records are negative for complaints, findings, or any diagnosis of a low back disability, despite the Veteran's contentions that he has had low back problems and a low back disability since service in his notice of disagreement and substantive appeal. The Veteran has not presented, identified, or alluded to the existence of any post-service medical evidence of a diagnosis of or treatment for a low back disability. The Board notes that symptoms, such as pain, do not in and of themselves constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999) (pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted). Absent evidence of a current disability, service connection for a low back disability must be denied. Without competent medical evidence of record that demonstrates the presence of a low back disability, the Board finds that service connection for a low back disability is not warranted. As the preponderance of the evidence is against the claim for service connection for a low back disability, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. Service connection for low back disability is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs