Citation Nr: 1334540	
Decision Date: 10/30/13    Archive Date: 11/06/13

DOCKET NO.  10-13 401	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas


THE ISSUES

1.  Entitlement to service connection for tinnitus.

2.  Entitlement to service connection for bilateral hearing loss.  

3.  Entitlement to service connection for skin cancer.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

D. Havelka, Counsel


INTRODUCTION

The Veteran served on active duty from March 1968 to November 1969.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas.  

The issues of entitlement to service connection for bilateral hearing loss and skin cancer are addressed in the Remand portion of the decision below.


FINDINGS OF FACT

1. The Veteran experienced acoustic trauma during service in the form of artillery noise exposure.

2.  There is no diagnosis of a current tinnitus disability.  


CONCLUSION OF LAW

Tinnitus was not incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013).  

The Veteran has been provided the requisite notice with respect to his claim for service connection for tinnitus a September 2009, which was prior to the initial RO rating decision denying the benefit sought.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice.  See Shinseki v. Sanders, 129 S.Ct. 1696 (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).  

VA has obtained available service treatment records; service personnel records; VA medical records; VA examination reports, assisted the Veteran in obtaining evidence; and, afforded him the opportunity to present written statements and evidence.  All known, identified, and available records relevant to the issue on appeal have been obtained and associated with the evidence of record and he has not contended otherwise.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  The Veteran was afforded a VA audiology VA examination in conjunction with his claim for entitlement to service connection for tinnitus and the examination is adequate.  There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims 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, 19 Vet. App. at 486; Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

Service connection may be granted for disability due to a disease or injury that was incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  In addition, service connection may be granted for any disease diagnosed after separation, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

The Veteran claims service connection for tinnitus.  In an August 2013 Appellant's Brief, his representative claims that the Veteran was exposed to acoustic trauma in the form of the noise of artillery weapons fire during service and that this is the cause of a current hearing loss disability; assertions with respect to the claim for tinnitus are lacking.  The Veteran's DD 214 does confirm that he served in an artillery unit in service.   

The Veteran's service treatment records have been obtained and are complete.  Review of the service treatment records does not reveal any complaints, or diagnosis, of tinnitus at any point during active duty.  

In a November 1969 report of medical history on service separation, the vv indicated "no" to the question which asked if he had hearing loss or ear trouble.  Clinical evaluation of his ears and ear drums did not note any abnormalities, and there was no diagnosis of tinnitus.  

In a January 1970 VA examination, no abnormalities of the Veteran's ears were found, and tinnitus was not reported by the Veteran or noted by the examiner.  In a July 1980 VA examination, symptoms of tinnitus were not reported.  

VA treatment records dating from 2005 reveal that the Veteran did not report symptoms of tinnitus, although he reported symptoms of hearing loss.  An April 2005 primary care provider outpatient note indicates hearing loss as a medical problem, but not tinnitus.  The Veteran was referred for an audiology consultation which was conducted in May 2005, and revealed a diagnosis of sensorineural hearing loss.  No symptoms of tinnitus were reported.  

In an August 2008 VA audiology consultation, the Veteran felt that his hearing had worsened since his last hearing evaluation.  He denied any other new concerns with his ears and he did not report having symptoms of tinnitus.  

At a November 2008 VA audiology examination, the Veteran reported noised exposure to artillery and other weapons fire during service in Vietnam.  He reported working as a welder for nine years after service using grinders and other noisy equipment, but he indicated he was required to wear hearing protection during this occupation.  He reported his other post-service occupation as being a commercial truck driver at which he was still employed.  The Veteran reported that there was "not much noise while driving a truck."  He further denied a history of recreational noise exposure.  He did not report any history of tinnitus symptoms.  After full examination the diagnosis was bilateral sensorineural hearing loss.  The examiner reviewed the evidence of record and specifically indicated that no opinion was expressed as to the etiology of tinnitus, because the Veteran denied having any current symptoms of tinnitus; no diagnosis of tinnitus was made.  

The Veteran was exposed to artillery and weapons noise during service.  He has a current hearing loss disability.  However, there is simply no objective evidence of a current tinnitus disability and the subjective evidence of tinnitus is not credible.  While the Veteran claimed service connection for tinnitus in a June 2008 letter, he has denied having tinnitus to every medical professional who has ever treated or evaluated his hearing.  He denied having tinnitus at the May 2005 VA audiology consultation and again at the November 2008 VA examination.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (finding that in weighing the credibility, VA may consider inconsistent statements, internal inconsistency, and consistency with other evidence of record).  

Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  In the absence of proof of current disability there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Accordingly, the preponderance of the evidence is against the claim of entitlement to service connection for tinnitus; the benefit-of-the-doubt rule does not apply and service connection for tinnitus is not warranted.  Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 


ORDER

Service connection for tinnitus is denied.



REMAND

The Veteran claims entitlement to service connection for hearing loss and skin cancer.  

Skin Cancer

VA treatment records dating from 2001 reveal that surgical excision of basal cell carcinoma, skin cancer, was necessary for patches of cancer identified on his cheek and temple.  As such, there is evidence of skin cancer dating from 2001.  There is no evidence of skin cancer at any time before this.  

In his March 2009 notice of disagreement the Veteran's indicated "vendor being Wesley Pathology Consultants."  Accordingly, as private medical records related to his claim for service connection for skin cancer have been reported, an attempt to obtain these records should be made.  See Littke v. Derwinski, 1 Vet. App. 90 (1990); Hyder v. Derwinski, 1 Vet. App. 221 (1991).

Hearing Loss 

For claims for service connection for hearing loss or impairment, VA has specifically defined what is meant by a current "disability" for the purposes of service connection.  38 C.F.R. § 3.385.  "[I]mpaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent."  38 C.F.R. § 3.385 (2013).  

In the December 1967 service entrance examination, the Veteran's  ears and ear drums were normal, with no abnormalities noted by the examining physician.  The audiology examination that was conducted at that time used the American Standards Association (ASA) units of measurement as indicated on the examination report.  Current audiological examination standards use International Standards Organization (ISO) units of measurement.  Accordingly, the Board has converted the audiology data from ASA units to ISO units; the converted pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
5
20
20
10
LEFT
20
15
30
40
25

As shown, the converted audiology test results for left ear on the Veteran's servicer entrance examination in December 1967 meet the criteria for a hearing loss disability for VA purposes.  38 C.F.R. § 3.385.  In this case, as left ear hearing loss was noted on service entrance, the issue with regard to service connection for the left ear becomes that of whether the Veteran's pre-existing left ear was aggravated by military service.

In the November 2008 VA audiology examination, the examiner reviewed the evidence of record and based his opinion that the Veteran's bilateral hearing loss was not related to his military service, in part on the Veteran's hearing being normal on entrance to active duty service.  As shown above, this is incorrect.  Thus, the medical opinion expressed is based upon an incorrect factual basis.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that medical opinions based on incomplete or inaccurate factual premise are not probative).  Accordingly, a remand for a new examination is necessary.  

When the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination.  Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992).   

Accordingly, the case is remanded for the following action:

1.  The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims for service connection for skin cancer and bilateral hearing loss.  Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources.  Regardless of his response, an attempt to obtain records from Wesley Pathology Consultants must be made.  When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received.  

All attempts to secure this evidence must be documented in the claims file by the RO.  If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence.  The Veteran and his representative must then be given an opportunity to respond.  

2.  The Veteran must be afforded the appropriate VA examination to determine whether any bilateral hearing loss found is related to his military service.  All pertinent symptomatology and findings must be reported in detail.  Any indicated diagnostic tests and studies must be accomplished.  The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed.  The examiner must specify the dates encompassed by the electronic records that were reviewed.  Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state whether any diagnosed hearing is related to the Veteran's active duty service, to include whether the pre-existing left ear hearing loss was aggravated by his military service.  

A complete rationale for all opinions must be provided.  If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation.  The examiner must indicate whether there was any further need for information or testing necessary to make a determination.  Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner.  The report prepared must be typed.

3.  The Veteran must be afforded the appropriate VA examination to determine whether any skin cancer found or previously diagnosed is related to his military service.  All pertinent symptomatology and findings must be reported in detail.  Any indicated diagnostic tests and studies must be accomplished.  The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed.  The examiner must specify the dates encompassed by the electronic records that were reviewed.  Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state whether any currently or previously diagnosed skin cancer is related to the Veteran's active duty service, to include as due to chemical exposures such as Agent Orange.  

A complete rationale for all opinions must be provided.  If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation.  The examiner must indicate whether there was any further need for information or testing necessary to make a determination.  Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner.  The report prepared must be typed.

4.  The RO must notify the Veteran that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the claims.  The consequences for failure to report for a VA examination without good cause may include denial of the claims.  38 C.F.R. §§ 3.158, 3.655 (2012).  In the event that the Veteran does not report for any scheduled examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination was sent to his last known address. Documentation must be also be obtained and associated with the Veteran's claims file demonstrating any notice that was sent was returned as undeliverable.

5.  The medical reports must be reviewed to ensure that they are in complete compliance with the directives of this remand.  If a report is deficient in any manner, corrective procedures must be implemented. 

6.  After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claims on appeal must be readjudicated.  If any benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative.  After they have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 

No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO.  Kutscherousky v. West, 12 Vet. App. 369 (1999).



______________________________________________
JOY A. MCDONALD 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs