Citation Nr: 1330664 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 09-40 487 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for scoliosis of the thoracic spine. 2. Entitlement to service connection for right ear hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran served on active duty from September 1982 to September 1985. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Waco, Texas, Regional Office (RO) of the United States Department of Veterans Affairs (VA). The hearing loss claim has been recharacterized as right ear hearing loss to more accurately reflect the Veteran's claim. In February 2013, the case was remanded for additional development. A May 2013 rating decision reflects service connection was granted for degenerative disc disease of the lumbar spine and for a meniscal tear/osteoarthritis of the left knee. This represents a full grant of the benefits sought with respect to those issues. The issue of service connection for scoliosis being remanded is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, tinnitus first manifested during active duty service and has persisted since that time. 2. There is no current hearing loss disability in the right ear. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. § 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for service connection of right ear hearing loss have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012). VA's Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Letters in May 2007 and February 2013 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1). These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in a July 2013 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any private/VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). A VA examination was conducted in April 2013 and a VA opinion was obtained in June 2013; the Veteran has not argued, and the record does not reflect, that this report of examination and opinion are inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4). The findings reported on examination are based on objective testing and reliable principles. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claim file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. Sensorineural hearing loss, as an organic disease of the nervous system, is a listed chronic diseases for purposes of presumptive service connection. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). The applicable presumptive period is one year following separation from service. 38 C.F.R. § 3.307(a)(3). 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, or 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 4000 Hz 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 (2012). Even if disabling loss is not demonstrated at separation, a veteran may establish service connection for a current hearing disability by submitting evidence that a current disability is causally related to service. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. Right Ear Hearing Loss VA audio examination was conducted in April 2013 and the examiner stated the claim file was reviewed in June 2013. Audiometric testing showed: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 5 10 Speech discrimination was 96 percent correct in the right ear. The examiner determined that the Veteran had normal right hearing during service and normal current right ear hearing. For VA purposes, a hearing loss disability is defined as: "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. Because a right ear hearing loss disability by regulation is not shown at any time during the appeal period, a nexus opinion was not required. The Board accepts that the Veteran had loud noise exposure during service in association with firing weapons, and although the Veteran is competent to report functional complaints of hearing difficulty and had an MOS of field medic, he lacks the specialized knowledge, training, and equipment needed to establish the presence of a hearing loss disability under the regulations. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran's right ear has never, at any time during the appeal period, demonstrated findings meeting the regulatory definition of a hearing loss disability for VA purposes. 38 C.F.R. § 3.385. In the absence of a current disability, service connection cannot be granted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The preponderance of the evidence is against the claim; there is no doubt to be resolved. Service connection for right hearing loss is not warranted. Tinnitus The Veteran contends that he initially experienced tinnitus after exposure to acoustic trauma during service and that he has experienced intermittent to constant tinnitus since service. The Veteran's DD Form 214 reflects his military occupational specialty (MOS) was medical field service technician, and he is competent to report the onset and continuity of his tinnitus symptoms. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). Indeed, tinnitus is diagnosed based on an individual's subjective complaints. He reports acoustic trauma during service after firing an M-16. Although his service treatment records do not document any treatment for tinnitus, the Veteran's assertions are not inconsistent with his service. 38 U.S.C.A. § 1154(a). Service personnel records specifically reflect that he completed training in firing of the M-16 rifle and a .45-caliber pistol in March 1983. The April 2013 VA examination report reflects current tinnitus and a history of onset during service after firing an M-16. The Veteran characterized his in-service tinnitus symptoms as an initial buzzing in his ears, mostly on the right. At the time of the examination, he reported that he had been experiencing constant tinnitus for many years. The April 2013 VA examiner opined that the etiology of the Veteran's tinnitus could not be provided without resort to speculation. Although the opinion provided in June 2013 by the same examiner, after reviewing the claim file, was that it is not at least as likely as not that tinnitus is due to noise exposure during service, no additional findings or rationale were provided to support the variance in the opinion. The Veteran's report of the onset of his tinnitus during service and since separation is deemed credible. The Veteran's report of experiencing intermittent and/or constant tinnitus since service is likewise deemed credible, as his report is uncontroverted by any evidence of record. Cf. Cromer v. Nicholson, 19 Vet. App. 215 (2005). Service connection for tinnitus is warranted. See 38 C.F.R. § 3.303(b), (d). ORDER Service connection for right ear hearing loss is denied.. Service connection for tinnitus is granted. REMAND At separation from active duty in July 1985, "Mild thoracic spine scoliosis within normal limits" was noted by X-ray examination. On VA examination in April 2013, the examiner noted that the Veteran's scoliosis was genetic in origin, and that although the actual cause is unknown, it unlikely originated from the back injury sustained with lifting during service and resulting degenerative disc disease for which service connection has been established. However, it was noted that the back injury during service adversely impacted an already taxed axial skeletal system. An opinion as to whether the Veteran's scoliosis underwent measurable in-service aggravation due to a superimposed injury or disease, including any superimposed injury attributable to his service-connected back injury, was not provided. Accordingly, the case is REMANDED for the following action: 1. Return the claim file to the VA examiner who conducted the April 2013 back examination, if available; otherwise to another appropriate medical professional. The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's congenital scoliosis underwent in-service aggravation due to a superimposed injury or disease, including the service-connected back injury. The examiner is advised that the term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. A complete rationale for all opinions expressed must be provided. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. Then, readjudicate the appeal. If the benefit sought remains denied, issue a Supplemental Statement of the Case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs