Citation Nr: 1329608 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 09-50 747 ) 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 hypertension. 3. Entitlement to service connection for a low back disability. 4. Entitlement to service connection for a bilateral knee disability. 5. Entitlement to service connection for a bilateral shoulder disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and T.S. ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The appellant had active duty service from February 1964 to February 1966. This matter came to the Board of Veterans' Appeals (Board) from June 2009 and August 2009 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded in December 2011 for further development. The Veteran testified at a hearing before the Board at the RO (Travel Board) in June 2011. A transcript is of record. The issues of entitlement to service connection for a low back disability, a bilateral knee disability and a bilateral shoulder disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Bilateral hearing loss was not manifested during the Veteran's active duty service or for many years thereafter, nor is bilateral hearing loss otherwise related to such service. 2. There has been no demonstration by competent medical, nor competent and credible lay, evidence of record that the has hypertension or had hypertension at any time during the appeal period. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.385 (2012). 2. The criteria for service connection for hypertension have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Appropriate notice was provided to the Veteran in December 2008 and July 2009. With regard to the duty to assist, VA has obtained service and VA treatment records, reviewed the Veteran's Virtual VA file, assisted the Veteran in obtaining evidence, afforded the Veteran VA audiological examinations in December 2008 and February 2009, and afforded the Veteran the opportunity to give testimony at a Travel Board hearing in June 2011. Although the Veteran was not provided a VA examination for hypertension, the evidence of record (as will be discussed below) does not contain competent evidence that the Veteran has hypertension or was diagnosed with hypertension at any time during the appeal period; thus, a medical examination is not necessary to decide the claim. At the hearing, the Veteran testified that he applied for Social Security Administration (SSA) disability benefits for other disabilities and not for the ones before the Board. Thus, additional development is not necessary. In October 2012, the RO informed the Veteran that the judge who conducted his hearing was no longer at the Board. As a result, the Veteran was provided another opportunity to testify at another hearing. To date, no response has been received by either the Veteran or his representative regarding an additional hearing. In statements received in October 2012 from the Veteran's representative and in November 2012 from the Veteran, both indicated that there was no additional evidence to submit and requested that the case be immediately forwarded to the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran and his representative have not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claims at this time. Analysis The Veteran claims entitlement to service connection for bilateral hearing loss and hypertension. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). For some "chronic diseases," presumptive service connection is available. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a '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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease'became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The term "chronic disease" whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Hypertension and sensorineural hearing loss are included in 38 C.F.R. § 3.309(a). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (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). I. Hearing Loss The Veteran asserts that his hearing loss is related to in- service noise exposure as a tank crew member in the military. Specifically, he asserts noise exposure from tank engines, gunfire and 105 Howitzers. At the June 2011 hearing, he testified to working for the oil and gas industry for 30 years as a drilling foreman and reported consistent use of hearing protection. He further testified that he did not wear hearing protection in service. For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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 provisions of § 3.385, however, do not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. Although that regulation speaks in terms of service connection, it operates to establish when a measured hearing loss is (or, more accurately is not) a "disability" for which compensation may be paid, provided that other requirements for service connection are otherwise met under 38 U.S.C.A. §§ 1110, 1112 and 38 C.F.R. §§ 3.303, 3.307. Hensley v. Brown, 5 Vet .App. 155 (1993). The Veteran testified about noise exposure in service and the record reflects that the bilateral hearing loss currently meets the regulatory thresholds to be considered disabling. Audiometric testing conducted during the February 2012 VA examination revealed auditory thresholds greater than 40 decibels for several of the relevant frequencies in each ear. The remaining question is whether the current bilateral hearing loss is related to his service. Service treatment records are silent for hearing loss. On the authorized entrance audiological evaluation in February 1964, pure tone thresholds, in decibels, were as follows (when converted from American Standards Association (ASA) units to International Standards Organization (ISO) units): HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 0 -- 10 LEFT 25 5 5 -- 10 On the authorized separation audiological evaluation in December 1965, pure tone thresholds, in decibels, were as follows (when converted from ASA units to ISO units): HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 -- 5 LEFT 20 5 0 -- 15 In his contemporaneous medical history, the Veteran did not indicate whether he experienced any hearing loss. He denied a past/current history of ear trouble. On a February 1966 medical statement upon separation, the Veteran acknowledged no change in his medical condition since the December 1965 examination. The first indication of hearing loss after service is the report of a February 2009 VA examination. On the authorized audiological evaluation in February 2009, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 30 30 65 75 LEFT 25 30 40 60 90 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 88 percent in the left ear. After interviewing and examining the Veteran, and after reviewing the claims file, the VA examiner opined that it is less likely than not that the Veteran's hearing loss is secondary to acoustic trauma from the military. The VA examiner explained that service treatment records indicate normal hearing sensitivity upon discharge from service. The examiner noted that the Veteran reported a 30 year history of occupational loud noise exposure while working in the oil and gas industry. The examiner further noted that the Veteran's medical history is significant for esophageal cancer that was treated with Cisplatin, which he notes is a "known ototoxic medication." In support of his claim, the Veteran submitted a March 2009 letter from L.L.I., Au.D, of Hearing Solutions who detailed the findings of a March 2009 audiological evaluations. Dr. L.L.I. noted that the Veteran reported that hearing loss began while in service and that there was noise exposure to tank engines, gunfire and 105 Howitzers, without access to hearing protection. He believed that this caused his current hearing loss. Post-discharge he worked for oil and energy companies, where he spent a lot of time doing paperwork and reported consistent use of hearing protection. Dr. L.L.I. further noted that his health history is significant for esophageal cancer, which was treated with surgery, radiation and chemotherapy. The audiologist stated that after "reviewing the [V]eteran's service history, it is just as likely as not that at least some of the [V]eteran[']s hearing loss . . . could be the result of his exposure to hazardous noise while in the service." At the June 2011 hearing before the Board at the RO, T.S. testified that the Veteran had hearing problems since 1965. The Board remanded the claim in December 2011 to obtain a new VA examination because the February 2009 examination did not consider the Veteran's report that hearing loss began in service or shortly thereafter, and thus, was inadequate. On the authorized VA audiological evaluation in February 2012, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 35 65 80 LEFT 25 35 45 70 80 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 80 percent in the left ear. After interviewing and examining the Veteran and reviewing his claims file, the VA examiner diagnosed sensorineural hearing loss and opined that it is less likely as not that the Veteran's hearing loss is caused by or a result of an event in service. The examiner noted that the Veteran served as a crewman tanks for two years and was never in direct armed conflict or active reserves or National Guard. The Veteran stated that the was a loader on tanks and that he fired machine guns and drove tanks. The examiner referred to in-service testing and stated there is no significant threshold shift represented in either ear from entrance to discharge. In conclusion, the examiner noted that the Veteran had normal hearing when he entered service and hwne he was discharged; with no significant threshold shift during service in either ear. The Veteran had significant noise exposure in his civilian life as well as exposure to a chemotherapy drug in 2007 that is a known ototoxic drug and he did not receive ototoxic monitoring of his hearing while taking that drug. Based on a review of the evidence, service connection is not warranted. The Board does not find that the Veteran's assertion that hearing loss began in service credible. The Veteran has provided conflicting accounts as to when it started. On a claim received in October 2008, the Veteran stated that his hearing loss started in June 1964, but at the time of the February 2012 VA examination, the Veteran was not sure when it had started. Also, when given the opportunity to report the symptoms upon separating from service, the Veteran denied ear trouble and did not indicate any hearing loss. The Veteran's more recently-reported history of hearing loss beginning in active service is inconsistent with his service treatment records. If the Veteran had hearing loss as early as June 1964, one would have expected him to report such upon separating from service. Instead, in December 1965 he denied hearing loss and medical personnel at the time only reported abnormality in the lower extremities. His in- service history of symptoms at the time of service separation is more contemporaneous to service, so is of more probative value than the more recent assertions made many years after service separation. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994). Also, the most probative medical evidence is against the claim. While the February 2009 VA examiner offered a negative opinion, that examiner did not consider the Veteran's assertions regarding an onset of hearing loss and service and appeared to base the opinion, in part, on the fact that the Veteran's hearing was normal at separation. The VA opinion obtained in February 2012, pursuant to the Board remand, included that examiner's opinion that the Veteran's hearing loss was not related to service. That opinion was provided with full knowledge of the Veteran's in-service noise exposure and his self-reported history of hearing loss. The February 2012 examiner reviewed the service hearing test results and stated "no significant threshold shift in service." This medical finding is significant as it addresses the situation addressed in Hensley more clearly than the 2009 VA examination. The only competent evidence of record which provides a link between the Veteran's active duty service and hearing loss is the March 2009 statement from Dr. L.L.I. who states it is as likely as not that at least some of the Veteran's "hearing could be" the result of "in-service noise exposure." (Emphasis added). The use of the word "could" without a rationale renders this statement too speculative to provide the degree of certainty required for medical nexus evidence. See Bloom v. West, 12 Vet. App. 185, 187 (1999). The VA examiner's opinion was based both on objective testing and on a review of the Veteran's entire claims file. Although Dr. L.L.I. indicated "reviewing the [V]eteran's service history," it does not appear that the private audiologist had access to the Veteran's service treatment records which show no complaints or diagnosis of hearing loss in service and there was no comparison between audiometric thresholds reported on enlistment and separation. The Board affords more weight to the VA opinion than Dr. L.L.I.'s opinion. Among the factors for assessing the probative value of a medical opinion are the examiner's access to the claims file, and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448- 9 (2000). Again, it appears to the Board that the private opinion was based on history provided by the Veteran, instead of actual review of service treatment records. The Veteran is competent to attest to factual matters of which he has first-hand knowledge (e.g., hearing difficulty). See Washington v. Nicholson, 19 Vet. App. 362 (2005). To this extent, the Board finds that the Veteran is competent to report that he has current hearing loss. There is no clinical evidence that he complained of, or sought treatment for, hearing loss for many years after separation from service. While the absence of any corroborating medical evidence supporting assertions does not render lay statements incredible, such absence is for consideration in determining credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (noting that the absence of contemporaneous medical documentation may go to the credibility and weight of Veteran's lay testimony, but the lack of such evidence does not, in and of itself, render the lay testimony incredible). The earliest clinical evidence of left ear hearing loss is 2009, approximately 43 years after the Veteran separated from active service. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board finds that any statement by the Veteran that he has had hearing loss since service is less than credible when considered with the record as a whole, to include his denial of such upon separation. In the present claim, there is no probative clinical opinion, or credible continuity of symptomatology, which supports a causal relationship between a hearing loss disability and active service. After thorough review of the evidence currently of record, the preponderance of the evidence is against the Veteran's claim of service connection for bilateral hearing loss. II. Hypertension Service treatment records are silent for any complaints, treatments, or diagnosis of hypertension. On separation examination in December 1965 clinical evaluation of the Veteran's vascular system was normal, and blood pressure reading was 120/72. In his contemporaneous medical history, the Veteran marked the appropriate boxes to deny high blood pressure. In a February 1966 medical statement, the Veteran verified by signature that there had been no change in his medical condition since the December 1965 separation examination. Post service, March 2008 and May 2008 VA treatment records show that the Veteran denied a history of hypertension. However, a March 2008 VA treatment record shows a history of hypertension status post esophagectomy and status post drug therapy. The Board acknowledges that the judge who had conducted the June 2011 hearing noted the Veteran's report of a current diagnosis of hypertension. The Veteran testified that he was taking medication for hypertension and that he was first seen at the VA in Oklahoma City for hypertension in 2008. The treatment records are silent as to any current diagnosis of hypertension. A "history of hypertension" is not evidence of a current diagnosis. At the June 2011 hearing, the Veteran's representative asserted that the hypertension stems from the Veteran's training as a tank crew member. While lay persons are competent to testify as to observable symptoms, they are not competent to render nexus opinions. The specific matter here (whether the Veteran has hypertension) falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Hypertension is not a syndrome that is readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows it is verifiable only through medical examination and multiple blood pressure readings obtained under clinically monitored conditions by a trained physician. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Therefore, based on the competent medical evidence of record, the Board must conclude that the Veteran does not have hypertension. Absent proof of a present disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Thus, the Board finds that the preponderance of the evidence is against the Veteran's claim and service connection for hypertension is denied. ORDER Entitlement to service connection for bilateral hearing loss is not warranted. Entitlement to service connection for hypertension is not warranted. REMAND The Veteran has not been afforded VA examinations for the remaining claims. In a May 2011 statement, the Veteran's representative suggested that the lower back, knees and shoulder disabilities were due to being bounced around inside tanks and from kneeling, pushing and pulling large tools. At the June 2011 hearing, the Veteran stated that he did not go on sick call for his back, knees and shoulder because he was afraid that he would kept in service. The Veteran further testified that he has had back pain in service. While service treatment records are silent for any lower back pain, bilateral knee disability and bilateral shoulder disability, the Veteran is competent to testify as to symptoms in service. With reports of in-service and post-service symptoms, the Veteran should be afforded VA examinations for these disabilities. 38 C.F.R. § 3.159(c)(4). 210291 Accordingly, the case is REMANDED for the following actions: 1. The Veteran should also be afforded an appropriate VA examination to determine the nature, extent and etiology of any current low back disability, bilateral knee disability and bilateral shoulder disability. It is imperative that the claims file be made available to the examiner for review in connection with the examination. Any medically indicated special tests should be accomplished. After reviewing the claims file and examining the Veteran, the examiner should respond to the following: a) Is it at least as likely as not (a 50% or higher degree of probability) that any currently diagnosed low back disability is causally related to service? b) Is it at least as likely as not (a 50% or higher degree of probability) that any currently diagnosed bilateral knee disability is causally related to service? c) Is it at least as likely as not (a 50% or higher degree of probability) that any currently diagnosed shoulder disability is causally related to service? A complete rationale for the opinion should be provided. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. After completion of the above and any additional development which the RO may deem necessary, the RO should then review the expanded record and readjudicate the claims. If any benefit sought on appeal remains denied, issue a supplemental statement of the case, and give the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the 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). ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs