Citation Nr: 1328951 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 06-25 554 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran had active service from February 1959 to January 1960. These matters come before the Board of Veterans' Appeals (BVA or Board) from a February 2006 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Muskogee, Oklahoma. These matters were previously before the Board in January 2010, July 2011, and September 2012 and were remanded for additional development. In June 2009, the Veteran testified at a RO hearing before a local hearing officer. The Veteran requested that a hearing be scheduled before a Veterans Law Judge; however, a note in the file reveals that the Veteran did not to appear for a September 2009 Board video-conference hearing. As no further communication from the Veteran with regard to a hearing has been received, the Board considers his request for a hearing to be withdrawn. See 38 C.F.R. §§ 20.702(d), (e); 20.704(d), (e) (2012). After the last adjudication of the claims by the RO, the Veteran submitted additional evidence in the form of personal statements and private treatment records. See 38 C.F.R. § 20.1304 (2012). The Board notes that the Veteran did not waive agency of original jurisdiction (AOJ) consideration of this evidence. Id. However, the Board observes that the private treatment records are not relevant to the claim decided herein, and to the extent the personal statements are relevant, they do not provide information not otherwise available for consideration by the Board. Therefore, a remand for AOJ review of the evidence prior to the Board's decision on the claim of entitlement to service connection for tinnitus, is not necessary. The newly submitted evidence is relevant to multiple physical disabilities not on appeal, including several for which service connection has been previously denied. Additionally, many of the private treatment records are associated with back complaints, as are portions of the Veteran's personal statements. A claim of entitlement to service connection for a back disability has not been adjudicated by the RO, and the Veteran has not filed a formal claim in this regard. Therefore, the Board refers the question of whether the Veteran intends to file a claim of entitlement to service connection for a back disability or to reopen any of the previously denied claims to the RO for clarification. The issues of entitlement to service connection for bilateral hearing loss and TDIU are addressed in the remand portion of the decision below and are remanded to the RO via the Appeals Management Center in Washington, DC. FINDING OF FACT Tinnitus did not have its onset during service or within one year of the Veteran's discharge from service and is not the result of disease or injury incurred during the Veteran's military service. CONCLUSION OF LAW Tinnitus was not incurred in or aggravated by the Veteran's active duty military service, nor may it be presumed to have been incurred in or aggravated by such service. 38 U.S.C.A. §§ 1101, 1112, 1131, 1154, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Stegall Considerations The Board observes that this case was remanded by the Board in January 2010, July 2011, and September 2012. The United States Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders." See Stegall v. West, 11 Vet. App. 268, 271 (1998). The purpose of the January 2010 and September 2012 remands was to schedule a VA audiological examination, while the July 2011 remand was issued so that outstanding VA treatment records could be obtained. A review of the post-remand record shows that VA examinations were scheduled for January 2010 and March 2013 and that VA treatment records dated through October 2012 have been added to the claims file. Therefore, the Board determines that the RO/AMC substantially complied with the Board's orders in prior remands, and that the Board may now proceed with adjudication of the claim. II. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted November 9, 2000 (codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002)) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claim and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claim. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA must inform a claimant about the information and evidence not of record that is necessary to substantiate the claim, the information and evidence that VA will seek to provide, and the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (revised 73 Fed. Reg. 23353-23356, April 30, 2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that VCAA notice requirements also apply to the evidence considered in determinations of the degree of disability and effective date of the disability once service connection has been established. VCAA notice must be provided before the initial unfavorable AOJ decision on the claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided with a VCAA notification letter dated in March 2005, prior to the initial unfavorable AOJ decision issued in February 2006. The Board observes that the pre-adjudicatory VCAA notice informed the Veteran of the type of evidence necessary to establish service connection, how VA would assist him in developing his claim, and his and VA's obligations in providing such evidence for consideration. With regard to the notice requirements dictated in Dingess/Hartman, the Veteran did not receive a letter informing him about disability ratings and effective dates until after the initial adjudication of the claim, but the Board finds that no prejudice to the Veteran has resulted. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). As the Board herein concludes that the preponderance of the evidence is against the Veteran's service connection claim, any questions as to the assignment of disability ratings and effective dates are rendered moot. Therefore, the Board finds that the Veteran was provided with all necessary notice under VCAA prior to the initial adjudication of his claim. Accordingly, the Board determines that the content requirements of VCAA notice have been met and the purpose of such notice, to promote proper development of the claim, has been satisfied. See Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). Based on the above, the Board finds that further VCAA notice is not necessary prior to the Board issuing a decision. VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim and providing him with a VA examination. The Veteran's service treatment records, VA medical records, private treatment records, disability records from the Social Security Administration, and the report of a March 2013 VA examination were reviewed by both the AOJ and the Board in connection with adjudication of the claim. The Veteran has not identified any additional, relevant treatment records the Board needs to obtain for an equitable adjudication of the claim. With regard to the VA examinations, the Board notes that once VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, the examiner reviewed the claims file, noting relevant documents in service treatment records and post-service treatment evidence, documented the Veteran subjective complaints and medical history, and examined the Veteran. Thereafter, the examiner provided an opinion supported by a rationale based on all the available evidence, as well as a review of the pertinent medical literature. There is nothing to suggest that the examiner's opinion is not sufficiently based on the facts of the case or that an arbitrary conclusion was reached. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159 (c)(4). In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the Veteran's claim without further development and additional efforts to assist or notify the Veteran in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of 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). Therefore, the Board determines that the Veteran will not be prejudiced by the Board proceeding to the merits of the claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VA employee who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the June 2009 RO hearing officer explained the issues and asked questions to solicit information about the potential availability of any pertinent outstanding evidence. The Veteran was assisted at the hearing by an accredited representative. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the RO hearing officer complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) . III. Service Connection Service connection may be granted for disability arising from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a). Connecting the disability to service may be accomplished through statutory presumption or through affirmative evidence that shows inception or aggravation during service, or that otherwise indicates a direct relationship between service and the current disability. 38 C.F.R. §§ 3.303(a), (d). The statutory presumptions and VA regulations implementing them are intended to allow service connection for certain diseases when the evidence might otherwise not indicate service connection is warranted. See 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including tinnitus (as an organic disease of the nervous system), to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. However, presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. 38 C.F.R. § 3.303(d). Direct service connection may be granted for disease or disability diagnosed in service; or, if diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Id. Further, with chronic disease shown as such in service, or within an applicable presumptive period, so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). 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. Id. When a chronic disease identity is established in service, or within an applicable presumptive period, there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). Each disorder for which the Veteran seeks service connection must be considered on the basis of the places, as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence; a veteran's lay statements may be sufficient evidence in any claim for service connection. 38 C.F.R. § 3.303(a); see also 38 U.S.C. § 1154(a) (requiring VA to include in its service connection regulations that due consideration be given to "all pertinent medical and lay evidence"). A veteran's lay statements may be sufficient evidence in any claim for service connection. In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Veteran contends that he has tinnitus as a result of noise exposure in service. Tinnitus is readily observable by laypersons and does not require medical expertise to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). Therefore, the Veteran is competent to describe his tinnitus symptomatology and such subjective complaints have been documented by the medical evidence of record, to include the March 2013 VA examination. As a result, the Board finds that the Veteran has a current diagnosis of tinnitus. However, the Veteran's service treatment records are devoid of reference to tinnitus. Further, the March 2013 VA examination report notes that the Veteran's subjective complaints were that the tinnitus was first noticed about twenty to thirty years prior with gradual onset. The Veteran also indicated that the tinnitus was intermittent and only experienced after taking a shower. The examiner noted that there were no mentions of tinnitus in the military records and that the tinnitus first occurred years after service. The examiner stated that delayed onset was not consistent with research regarding noise-induced tinnitus. In light of these facts, the examiner opined that the tinnitus was less likely than not caused by or the result of military noise exposure There is no contradictory medical opinion of record. As indicated, the Board has considered the Veteran's statements that his tinnitus is due to his military service, and such statements are supportive of a diagnosis of the disability. However, his statements do not demonstrate that the tinnitus had its onset in service or as a result of service. Accordingly, the Board determines that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for tinnitus. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Therefore, his claim for service connection for tinnitus must be denied. ORDER Entitlement to service connection for tinnitus is denied. REMAND The Board's review of the record indicates that another remand of the claim of entitlement to service connection for bilateral hearing loss is warranted. At the March 2013 VA examination, the examiner diagnosed bilateral sensorineural hearing loss. The examiner then offered a negative opinion with regard to a connection to service, in part due to the Veteran's hearing being within normal limits during military service with no significant shift upward of puretone thresholds from 1959 to 1963. However, the Board observes that the Veteran's hearing met the criteria for a hearing disability during service, particularly in the right ear. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The determination of whether the Veteran has a service-connectable hearing loss is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a "disability" when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. Prior to November 1967, audiometric test results were reported in standards set forth by the American Standards Association (ASA). The ASA results are the figures on the left of each column and are not in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). The Veteran's January 1959 service entrance examination noted that the Veteran's ears were normal and indicated bilateral whisper test results of 15/15; there was no audiological testing. A September 1959 service records physical found that the Veteran's ears were normal and indicated bilateral whisper test results of 15/15. Audiometric findings, as converted to International Standards Organization (ISO) units, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 20 20 25 15 LEFT 30 25 20 20 20 The Veteran's January 1960 service separation physical noted that the Veteran's ears were normal and indicated bilateral whisper test results of 15/15. The Veteran indicated that he had ear, nose, or throat trouble on the corresponding Medical History Report; the Veteran did not specify the nature of the reported ear, nose, or throat trouble. Audiometric findings, as converted to International Standards Organization (ISO) units, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 30 25 35 30 LEFT 25 20 25 20 15 The Veteran's May 1963 reserve enlistment physical noted that the Veteran's ears were normal and indicated bilateral whisper test results of 15/15. The Veteran indicated that he had ear, nose, or throat trouble on the corresponding Medical History Report; he stated that he had undergone a tonsillectomy at age 16. Audiometric findings (American Standards Associates (ASA) units as converted to International Standards Organization (ISO) units) were, in pertinent part, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 5 10 Not tested LEFT 10 0 5 5 Not tested Even though, the Veteran's hearing was basically normal on his May 1963 reserve enlistment examination, the evidence clearly reveals that the Veteran had clinically significant change in hearing ability during service (even showing right ear hearing loss "disability" for VA purposes). In light of these facts, the Board determines that the opinion of the March 2013 VA examiner as to the etiology of the Veteran's hearing loss is inadequate. Therefore, a remand is necessary so that another VA examination may be scheduled. As for the TDIU claim, as this claim is dependent on the outcome of the service connection claim, as well as any new claims filed by the Veteran, the claim for TDIU is inextricably intertwined with the bilateral hearing loss claim. The Court has held that all issues "inextricably intertwined" with an issue certified for appeal are to be identified and developed prior to appellate review. Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, the claim for service connection for bilateral hearing loss must be adjudicated before further action may be taken with respect to the TDIU claim. Accordingly, the case is remanded for the following action: 1. The Veteran should be scheduled for the appropriate VA examination to determine the nature and etiology of his hearing loss. The claims file must be made available to the examiner, and the examination report must reflect that such review occurred. All tests and studies deemed necessary must be performed. All pertinent symptomatology and findings should be reported in detail. Upon review of the record and examination of the Veteran, the examiner should respond to the following: Is at least as likely as not (whether there is a 50 percent or greater probability) that the Veteran's current bilateral hearing loss is causally or etiologically a result of military service, to include in-service noise exposure? A rationale for any opinion advanced must be provided. The clinician must reconcile his/her opinion with the September 1959 and January 1960 audiometric findings which demonstrate hearing loss, as converted to ISO units from ASA units. The examiner is advised that the January 1960 audiological evaluation in service also demonstrated right ear hearing loss disability for VA purposes. Further, there was a shift in pure tone thresholds in service. In this regard, with respect to the September 1959 and January 1960 audiometric findings, the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). These facts should be considered and discussed in forming the opinion. 2. After completing the above action, the AOJ should conduct any other development indicated by any response received as a consequence of the actions taken in the preceding paragraphs. 3. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence and the claims should be readjudicated. If any of the benefits sought are not granted to the Veteran's satisfaction, a supplemental statement of the case should be issued, and the Veteran and his representative should be afforded the appropriate period to respond. Thereafter, the case should be returned to the Board, as appropriate. The Veteran has the right to submit additional evidence and/or argument on the matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the appellant until he is notified. 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). ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs