Citation Nr: 1328510 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 09-05 457 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a claimed disability manifested by the loss of feeling in the hands and feet. 4. Entitlement to service connection for a respiratory disorder, to include asthma. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1975 to September 1976. These matters come to the Board of Veterans' Appeals (Board) on appeal from a RO rating decision in June 2008. In June 2010, the Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge. A transcript is associated with the claims file. In September 2010, the Board remanded the case for further evidentiary development. The Board notes that the United States Court of Appeals for Veterans Claims (CAVC) has held that a claimant's identification of the benefit sought does not require any technical precision. See Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007). A claimant may satisfy this requirement by referring to a body part or system that is disabled or by describing symptoms of the disability. See Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (stating that, when determining the scope of a claim, the Board must consider "the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of that claim"); 38 C.F.R. § 3.159(c)(3). In light of Brokowski and Clemons, with respect to the Veteran's claim of service connection for stress-induced asthma, the record indicates that the Veteran may have some respiratory condition, to include episodic asthma and bronchial spasms, the Board has recharacterized the claim as indicated on the title page with respect to this issue. A review of the Veterans Benefits Management System (VBMS) and the Virtual VA paperless claims processing system reveals documents that are either duplicative of the evidence of record or are not pertinent to the present appeal, except for the Veteran's appellate brief dated in August 2013 in Virtual VA. The issue of service connection for a respiratory disorder to include asthma and for the claimed loss of feeling in hands and feet are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran currently does not have a bilateral hearing loss disability for VA compensation purposes. 2. The Veteran is not shown to have manifested complaints or findings referable to tinnitus in service or for many years thereafter. 3. The Veteran is not shown to have tinnitus that is due to noise exposure or another event or incident of his period of active service. CONCLUSIONS OF LAW 1. The claim of service connection for a bilateral hearing loss disability must be denied by operation of law. 38 U.S.C.A. §§ 1101, 1131, 1137, 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 Veteran does not have a disability manifested by tinnitus that is due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A.§§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided a pre-adjudication VCAA notice letter in April 2008 before adjudication in June 2008. The Veteran was notified of the evidence needed to substantiate the claims for service connection, as well as what information and evidence must be submitted by the Veteran, what information and evidence would be obtained by VA, and the provisions for disability ratings and for the effective date of the claims. The requirements with respect to the content of the notice were met in this case. Duty to Assist VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in obtaining any outstanding records of identified VA or private medical treatment relevant to his claim, and affording him an examination when appropriate. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claims. The service treatment records, post-service medical records and lay statements have been associated with the record. Additionally, the Veteran was afforded an audiological VA examination in October 2010 pursuant to the Board remand. An addendum medical opinion was sought for the tinnitus issue in October 2011, which the Board finds adequate as the VA examiner based his statement on his examination of the Veteran, considered the Veteran's self-reported history of noise exposure, and provided an etiological opinion that is consistent with the evidence of record. The Veteran was also afforded an opportunity to present testimony at a hearing before the Board. During the hearing, the VLJ clarified the issues on appeal, explained the concept of service connection, identified an evidentiary deficit, and suggested the submission of additional evidence to support the Veteran's claim. The actions of the VLJ supplement VCAA and comply with any related duties owed during a hearing. See 38 C.F.R. § 3.103. Significantly, the Veteran and his representative have not identified, nor does the record otherwise show, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Principles of Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in- service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service incurrence may be presumed for some chronic disorders, including a sensorineural hearing loss, when demonstrated to a compensable degree within one year following separation from service. 38 C.F.R. §§ 3.307, 3.309. For the showing of 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110; see Degmetich v. Brown, 104 F. 3d 1328 (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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Hearing Loss The Veteran contends that he has a bilateral hearing loss that is the result of his duties in service that included aircraft maintenance, which exposed him to jet engine noise. In addition to general principles and regulations concerning service connection , there are also specific requirements regarding what constitutes a hearing loss disability under VA law. The threshold for normal hearing is from 0 to 20 decibels at the tested frequencies of 500, 1000, 2000, 3000, and 4000 Hertz, and a higher threshold level indicates some degree of hearing impairment, but not necessarily a hearing loss disability under 38 C.F.R. § 3.385. Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (citing as authority Current Medical Diagnosis and Treatment, 110-11 (Stephen A. Schroeder et al. eds. (1988)). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold 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 C.F.R. § 3.385. The threshold question that must be addressed in this case (as with any claim seeking service connection) is whether the Veteran has a disability within the meaning of the law, for which service connection is sought. See 38 C.F.R. § 3.385 (determines what constitutes a hearing loss disability within VA law). The DD Form 214 confirms the Veteran's military occupational specialty is consistent with the Veteran's claim that he was routinely exposed to hazardous noise. Therefore, the Board concedes that the Veteran was exposed to hazardous noise in service. See 38 U.S.C.A. § 1154(a). The Veteran did not engage in combat as there is no evidence that he did (e.g., no awards/decorations suggesting combat participation). Thus, 38 U.S.C.A. Section 1154(b) is not for application. Regardless, on this record, the Veteran currently is not shown to have a hearing loss disability for VA compensation purposes. The service treatment records do not show that the Veteran's hearing loss ever reached the "disability" level under 38 C.F.R. § 3.385 or that the Veteran made complaints of or received treatment for hearing complaints during service. The separation examination shows that the findings of hearing did not reach the level of a "disability." On enlistment examination in January 1975, puretone thresholds in decibels at 500, 1000, 2000, 3000 and 4000 Hertz were 5, 5, 10, 10, and 5for the right ear and 15, 15, 5, 5, and 10 for the left ear, respectively. On separation examination in August 1976, puretone thresholds in decibels at 500, 1000, 2000, 3000 and 4000 Hertz were 5, 0, 0, 0, and 0 in the right ear, and 5, 0, 0, 0, and 5 in the left ear, respectively. The Board acknowledges that, even "when audiometric test results at a Veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service". Hensley, 5 Vet. App. at 160 (1993). However, the post-service evidence of hearing acuity does not amount to a disability under VA standards. The Veteran underwent a VA audiometric evaluation in November 2010. Bilateral hearing was found to be within normal limits. Puretone thresholds in decibels at 500, 1000, 2000, 3000 and 4000 Hertz were 10, 5, 5, 10 and 25 in the left ear and 10, 15, 10, 10 and 25 in the right ear, respectively. The speech recognition score using the Maryland CNC Test were 100 percent for both ears. On this record, all of the above-cited testing results do not establish current hearing loss disability in either ear as defined by 38 C.F.R. § 3.385, as the auditory thresholds were not 40 decibels or greater at any of the frequencies, the auditory thresholds at minimum of three frequencies were not 26 decibels or greater, and the Maryland CNC speech recognition scores were not less than 94 percent. See 38 C.F.R. § 3.385. Thus, he did not meet the objective threshold for a hearing loss disability under VA regulation at any point during service or at any period thereafter. See 38 C.F.R. §§ 3.303, 3.307, 3.309. Moreover, neither the Veteran nor his representative has presented or identified existing audiometric testing results that meet the requirements of that regulation for a hearing loss disability. Instead, the record contains audiometric findings over the years that show his bilateral hearing has been consistently within normal limits as per VA regulations. As such, the Veteran is not found to have a bilateral hearing loss disability for compensation purposes under VA standards. The objective test results are controlling in this case. In the absence of evidence of a current disability, there can be no grant of service connection under the law. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). For this reason, the Board finds that the claim for service connection for a claimed bilateral hearing loss disability must be denied by law. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Tinnitus The Veteran also claims that he suffers from tinnitus that is related to his exposure to hazardous noise levels in service, specifically from working around loud jet engines. Tinnitus is a condition under case law where lay observation has been found to be competent to establish the presence of the disability. Charles v. Principi, 16 Vet. App. 370 (2002) (On the question of whether the veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent). The Veteran is competent to describe symptoms of an injury or illness, such as loss of hearing, and once such evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency and credibility, which is a "factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). As such, it is within the scope of the Veteran's competency for him to describe the ringing in his ears, or tinnitus, during service and thereafter. However, the Board notes that the Veteran denied having current tinnitus at the time of the recent VA examination in October 2010, and the record does not show that he has ever actually complained of having ringing in his ears. He filed a claim for tinnitus, but has not asserted that he experiences the symptomatology associated with tinnitus. By way of history, the service treatment records are negative for complaints or finding referable to tinnitus, to include at the time of the Veteran's separation of service. His ears and drums were evaluated as normal, and he specifically denied having ear, nose or throat trouble and hearing loss at that time. A VA treatment record dated in February 2008 notes that the Veteran told his treating physician that he had "chronic tinnitus." In contrast, a February 2009 treatment note contained no such complaint of symptomatology (in fact, a review of the ears indicated "no change in hearing"). The Veteran also made no specific mention of tinnitus at the recent hearing when he only made reference to his claimed hearing loss that he claimed as having when he was experiencing difficulty breathing due to stress-induced asthma. In a November 2010 VA examination, the VA examiner opined that, because the Veteran currently denied having tinnitus, it was not caused by or the result of noise exposure in service. The same examiner gave an addendum opinion with respect to tinnitus in October 2011 and repeated that the Veteran previously denied having tinnitus in November 2010; therefore, tinnitus was not caused by or a result of in- service noise exposure. The first and perhaps most fundamental requirement for any service connection claim is the existence of a current disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer, 3 Vet. App. at 225 (1992). In the absence of proof of a current disability, there can be no valid claim. Id. As previously mentioned, tinnitus is a condition where lay observation has been found to be competent to establish the presence of the disability. Charles v. Principi, 16 Vet. App. 370 (2002). Other than on his original claim form, the record does not show that the Veteran claimed an onset of tinnitus in service. Furthermore, the record does not show that the Veteran has consistently averred a having tinnitus since service. While he filed a claim of service connection for tinnitus, he denied having tinnitus at the VA examination in November 2010. To the extent that the Veteran is currently alleging he has tinnitus, the Board cannot find him credible. Once evidence is determined to be competent, the Board must determine whether the evidence is also credible. The former, the Court has held, is a legal concept, which is useful in determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value. The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). The Veteran's credibility affects the weight to be given to his testimony and lay statements, and it is the Board's responsibility to determine the appropriate weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Moreoever, there are other factors that weigh against the Veteran's credibility as to his lay assertions of having continuity of symptoms. Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony." Caluza v. Brown, 7 Vet. App. 498, 510- 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Relevant here, the law also recognizes that personal interest may affect the credibility of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza, 7 Vet. App. at 506. The Veteran's lay statements regarding tinnitus are not found to be credible because they are directly contradict by his own statement as well as other evidence of record. See Gardin v. Shinseki, 613 F.3d 1374, 1379 (Fed. Cir. 2010). Here, the Veteran's claim of having tinnitus is inconsistent with what he reported at the time of his separation from service in 1976 and with the information he provided to VA many years after service. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the tinnitus claim. 38 U.S.C.A. § 5107 ; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER The claim of service connection for a claimed bilateral hearing loss is denied as a matter of law. Service connection for tinnitus is denied. REMAND The issue of service connection for a respiratory disorder to include asthma needs to be remanded for a VA examination and opinion from a VA examiner as to the etiology of any currently identified respiratory condition. The Veteran initially filed his claim of service connection for stress-induced asthma in March 2008. At that time, he also claimed service connection for major depression and anxiety. The Veteran was afforded a psychiatric examination in December 2010, when the VA examiner opined that the Veteran's "asthma" was really an undifferentiated somatoform disorder that was first manifested during service. By way of a September 2011 RO rating decision, the Veteran was granted service connection for undifferentiated somatoform disorder (also claimed as major depression and anxiety). Presently, the Veteran avers that his current asthma should be rated separately from the now service-connected undifferentiated somatoform disorder. The Board notes that the Veteran had a history of asthma, including a diagnosis of episodic asthma and stated that he had bronchial spasms that made it difficult to breathe. Similarly, the issue of service connection for loss of feeling in the hands and feet must also be remanded. The Veteran testified during the hearing that he experienced a loss of feeling in his extremities when he was unable to breathe properly. While the respiratory disorder claim is being remanded for an examination, the VA examiner should be directed to identify any neurological findings pertaining to the hands and feet and furnish an opinion as to the likely etiology of such findings. Accordingly, the remaining matters are REMANDED for the following action: 1. The RO should have the Veteran scheduled for a VA examination to determine the nature and likely etiology of the claimed respiratory disorder to include asthma and any neurological conditions claimed as a loss of feeling in hands and feet. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the service treatment records, post-service medical records, and lay assertions. The examiner should identify all current respiratory disorders and neurological disorder affecting the extremities. For each diagnosis identified, the examiner should opine as to (1) whether it is at least as likely as not that the current respiratory or neurological disability is due to an event or incident of the Veteran's period of active service, (2) whether it is at least as likely as not that the current respiratory disability is either caused or aggravated by the service-connected psychiatric disorder (undifferentiated somatoform disorder); and (3) whether it is at least as likely as not that any current disability manifested by the loss of feeling in his hands and feet is caused or aggravated by an identified respiratory disorder. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear explanation for all opinions and a discussion of the facts and medical principles involved is necessary. 3. After completing all indicated development, the RO should readjudicate the claims remaining on appeal in light of all the evidence of record. If any benefits sought of appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity to response. Thereafter, if indicated, the case should be return to the Board for the purpose of appellate disposition. The Veteran 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). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs