Citation Nr: 1329968 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 08-09 314 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for frostbite residuals of the extremities. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1963 to October 1965. The Veteran also served in the Army National Guard from March 22, 1981, to March 29, 1985 with additional periods of active duty for training and inactive duty training. These matters are before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in January 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. This case was previously brought before the Board in July 2010 and March 2012 at which time the claims were remanded to further assist the Veteran with the development of his appeal. The case was most recently before the Board in March 2013, at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his appeal, to include obtaining records from the Social Security Administration (SSA). A May 2013 response from the SSA indicated that the Veteran's records had been destroyed and were no longer available. The Veteran was notified of this in July 2013 but provided no additional records. Therefore, the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). FINDINGS OF FACT 1. The preponderance of the evidence reflects that the Veteran does not have a bilateral hearing loss disability due to any incident of his active duty service. 2. The preponderance of the evidence reflects that the Veteran does not have cold weather residuals to the extremities due to any incident of his active duty service. CONCLUSIONS OF LAW 1. The criteria for the establishment of service connection for a bilateral hearing loss disability are not met, to include being presumed to be of service onset. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2012). 2. The criteria for the establishment of service connection for cold weather residuals are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's 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, 3.326(a). The notice requirements were met in this case by letters sent to the Veteran in September 2005 and October 2006. These letters advised the Veteran of the information necessary to substantiate his claims and of his and VA's respective obligations for obtaining specified types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). The letters also advised the Veteran of how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). That was done in this case. The Veteran's service treatment records and VA treatment records are in the file. In August 2010 the National Personnel Records Center (NPRC) responded that no additional service treatment records existed for any period of the Veteran's active duty or National Guard service other than those that had already been provide and associated with the claims file. The Veteran submitted an authorization for release of records by Dr. A. The Veteran was notified in March 2009 that this release had expired and a new release needed to be submitted. He did not respond to this letter. In July 2010 again the Veteran was notified a new release needed to be submitted to obtain treatment records from Dr. A. He did not provide a new release and accordingly, the records could not be obtained. The Veteran is reminded that the duty to assist him with his claim is not a one-way street. If he wants help in developing his claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The RO cannot obtain the Veteran's private treatment records without his authorization and as he has not provided this necessary authorization, or indicated that records specifically relevant to this claim need to be obtained, the Board finds that the duty to assist him in obtaining all potentially pertinent medical records has been satisfied. 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). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Veteran was afforded a VA medical examination in May 2012 for his claims. These opinions were rendered by a medical professional following a thorough examination and interview of the Veteran and review of the claims file. The examiner obtained an accurate history. The examiner provided a detailed conclusion for the opinions that were reached. Therefore, the Board finds that the examinations are adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, all relevant facts have been adequately developed to the extent possible; no further assistance to the Veteran in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Service Connection The Veteran alleges that he was exposed to small arms fire and large artillery noise while in service which caused his current bilateral hearing loss disability. He also contends that he fell in the snow in August 1964 which caused numbness in his hands that has continued on after separation from service. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be granted for a chronic disease, including hearing loss, when it is manifested to a compensable degree within one year of separation from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a 'competent' source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. In certain instances, however, lay evidence has been found to be competent with regard to a disease with 'unique and readily identifiable features' that is 'capable of lay observation.' See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the 'authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence'). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis The Veteran contends that he has hearing loss as a result of noise exposure in service to include from small arms fire and large artillery. He also contends that he has cold weather residuals from falling in the snow in service. See February 2012 statement. With respect to claims of service connection for hearing loss, the United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court further opined that 38 C.F.R. § 3.385, discussed below, then operates to establish when a hearing loss disability can be service connected. Id. 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, 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 results of a May 2009 private audiogram show that the Veteran currently has a bilateral hearing loss disability for VA purposes. Prior to November 1967, military audiometric results were reported in American Standards Association (ASA) units; VA used ASA units prior to July 1966. However, in July 1966, VA adopted International Organization for Standardization (ISO) units, and the military followed suit in November 1967. The current definition for a hearing loss disability found at 38 C.F.R. § 3.385 is based on ISO units. The military audiogram in the instant case conducted in 1963 and 1965 must be converted from ASA to ISO units. Essentially, this means adding 10 decibels to the reported findings in most frequencies, the exceptions being adding 15 decibels at 250 and 500 Hertz and 5 decibels at 4000 Hertz. At the Veteran's initial March 1963 examination his hearing was recorded as 15/15 on the whisper test. The Veteran was afforded an audiometric evaluation in October 1963. The pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -5 (10) -10 (0) -10 (0) 5 (15) -5 (0) LEFT 5 (20) -10 (0) -5 (5) 10 (20) 5 (10) The Veteran denied any ear trouble at his entrance examination, nor was hearing loss diagnosed. In March 1964 the Veteran reported with a sore throat, headaches, chills, and a fever. In May 1964 he complained of pain in his Achilles tendon. In June 1964 he reported injuring his right finger while jumping from a vehicle. In April 1965 he complained of occasional pain in his Achilles tendon area. The Veteran was diagnosed with dermatitis in an August 1965 treatment record. At his August 1965 separation examination the pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 0 (10) - 5 (10) LEFT -5 (10) 0 (10) 0 (10) - 5 (10) The Veteran did not complain of hearing loss, nor was it diagnosed. To the contrary, he specifically denied ear trouble on his Report of Medical History. The Veteran did not report any abnormalities of his legs, arms, or other joints, nor were any diagnosed. He also denied neuritis, or nerve trouble. In September 1965 the Veteran reported with a rash of both thighs. At the Veteran's June 1985 examination the pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 15 10 0 LEFT 10 5 10 5 5 Again the Veteran did not report he had hearing loss, nor was this disorder diagnosed. The Veteran also did not report any disorders of the extremities. On his Report of Medical History he specifically denied swollen or painful joints and no defects of the bilateral upper or lower extremities were diagnosed. In June 1986 the Veteran reported with complaints of a sore throat and chills. At the Veteran's June 1986 examination the pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 15 10 0 LEFT 10 5 10 5 5 Again the Veteran did not report he had hearing loss, nor was this disorder diagnosed. The Veteran also did not report any disorders of the bilateral extremities. On his Report of Medical History he specifically denied swollen or painful joints and no defects of the bilateral upper or lower extremities were diagnosed. At the Veteran's August 1989 examination the pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -5 0 10 15 20 LEFT 0 10 15 15 15 Again the Veteran did not report he had hearing loss, nor was this disorder diagnosed. The Veteran also did not report any disorders of the bilateral extremities. On his Report of Medical History he specifically denied swollen or painful joints or nerve problems. At the Veteran's September 1993 examination the pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 10 10 15 LEFT 10 10 10 10 15 In July 1994 the Veteran reported with a sore throat and sinus congestion. In August 1994 the Veteran reported again with a sore throat, sinus congestion and a cough. In October 1994 the Veteran reported recurrent right knee pain and he was given a modified profile with no running. As indicated above, although the Veteran was treated for numerous health complaints in service, he never reported hearing loss or residuals from cold weather, nor were these conditions diagnosed. The conditions were also not diagnosed at the Veteran's periodic National Guard health examinations. This weighs against the Veteran's contentions that his claimed disorders are related to service. The first complaints of hearing loss and cold weather residuals are dated with his claim of entitlement to service connection in June 2005, almost 40 years after separation from service. The Board may, and will, consider in its assessment of a service connection the passage of a lengthy period of time wherein the veteran has not complained of the disorder at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Feb. Cir. 2002) (en banc). The evidence weighs against the Veteran's claims for service connection. The Veteran was diagnosed with sensorineural type hearing loss in a September 2005 VA treatment record. In an April 2006 VA treatment record the Veteran reported hearing loss bilaterally. In a November 2005 statement the Veteran reported his MOS included artillery, switchboard supervisor, artillery instructor, and tractor trailer instructor. He also reported having frostbite at Fort Richardson in 1964 or 1965. In a March 2008 statement the Veteran related his current hand numbness to frostbite from active duty. In a May 2008 VA treatment record the Veteran reported having numbness in the bottom o f his feet. It has also been noted that the Veteran wears hearing aids bilaterally. See e.g., May 2010 VA treatment record. In an October 2009 statement Dr. N. indicated the Veteran had been treated since May 2005 for hearing loss and tinnitus. An audiogram was given in May 2009 by Dr. O. The pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 40 55 60 65 LEFT 20 20 30 45 55 His word recognition was "excellent bilaterally" under quiet conditions. He was diagnosed with mild to profound high frequency sensorineural hearing loss. At his May 2012 VA examination the Veteran reported that he was stationed in Alaska from 1963 to 1965 and that in August 1964 he fell into snow during training. He reported that his hands got frozen and wet and he was sent to the infirmary because his hands were blistered and numb. He stated he was off duty for 8 days and his hands were numb for 3 days. At the time of the examination the Veteran had cold sensitivity in his fingers and he reported he could not work in cold weather. On examination the examiner noted cold sensitivity in the bilateral hands. There was no numbness, tissue loss, color changes, impaired sensation, or nail abnormalities. X-rays showed no evidence of arthritis or punched out lesions. The examiner noted that there was no objective evidence of cold injury in service. The examiner related the Veteran's cold sensitivity to service, based solely on the Veteran's history. The Veteran was afforded a VA audiological examination in May 2012. The pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 30 35 45 LEFT 15 15 25 40 50 The Veteran's speech recognition scores on the Maryland CNC Test were 100 percent for the right ear and 98 percent for the left ear. The Veteran was diagnosed with sensorineural hearing loss bilaterally. The examiner opined that the Veteran's hearing loss was not related to service. His rationale was that there were multiple audiograms in service which showed normal hearing. On the Veteran's separation examination in 1965 he had normal hearing. The first evidence of high frequency hearing loss was on an audiogram from August 1989 in the left ear at 6000 Hertz. The examiner cited to the Institute of Medicine which has stated that hearing loss due to noise exposure is "instantaneous in nature" and would have presented itself at the time of the exposure. In regards to the Veteran's claim that cold weather lead to frequent ear infections which was causing hearing loss, the Veteran has been diagnosed with sensorineural hearing loss. This type of hearing loss is consistent with noise exposure, trauma, or aging, not ear infection. The Veteran has not been diagnosed with conductive or mixed hearing loss, which could have other etiologies. In a February 2012 statement the Veteran's private physician stated the Veteran reported exposure to loud noise in service. The Veteran reiterated that he was exposed to small arms fire and heavy weapons fire in service which caused his hearing loss. The Veteran also had tight, stiff fingers which he related to extreme weather conditions in service. The Board has considered the statements of the Veteran that he currently has hearing loss and cold weather residuals as a result of in service noise exposure and injury. The Veteran is competent to report observable symptoms, including trouble hearing and numbness in his hands. Layno v. Brown, 6 Vet. App. 465 (1994). While competent to discuss symptoms, the Veteran is not then competent to diagnose disabilities and link them back to service. Furthermore, the Board finds that the reported lay history of bilateral hand numbness in service and subsequent residuals of the cold weather, while competent, is nonetheless not credible. Emphasis is placed on the gap between discharge from active duty service, in 1965, and when the Veteran first reported symptoms, almost 40 years after service separation. See Maxson, supra. The Board has also weighed the Veteran's statements against the medial records of evidence which show that he complained of other health problems, following the August 1964 reported snow fall, and he never once reported numbness in his hands or other cold weather residuals. Accordingly, the Board finds the statements asserting an in service cold weather injury and subsequent continuity of symptomatology since service lack credibility and are without probative value. See, e.g. Madden v. Gober, 125 F.3d 1477, 1481 (1997) (the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration a Veteran's statements, it may consider whether self-interest may be a factor in making such statements). To the extent that the May 2012 VA examiner related the Veteran's current cold weather residuals to service, his opinion is based on incredible statements. As has been discussed, the Veteran's statements that he injured his hands in-service and has current residuals are outweighed by the evidence of record. The Board is not bound to accept medical opinions that are based upon an inaccurate factual background. See Black v. Brown, 5 Vet. App. 177 (1993); Swann v. Brown, 5 Vet. App. 229 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993). Although lay persons such as the Veteran are competent to provide opinions on some medical issues, see Kahana, supra., diagnosing cold weather residuals and diagnosing and determining the etiology of a bilateral hearing loss disability falls outside the realm of common knowledge of a lay person. See Jandreau, supra. In this case, given the Veteran's lack of medical expertise, his assertions that he currently has a bilateral hearing loss disability and cold weather residuals that are related to service are beyond his competence. Further, as there is no evidence of record of a bilateral hearing loss disability within one year of service discharge, the presumption of service connection is not applicable because the disorder's onset was beyond the presumptive period. 38 C.F.R. §§ 3.307, 3.309(a). Accordingly, the preponderance of the evidence is against the claims for service connection and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. Entitlement to service connection for cold weather residuals of the extremities is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs