Citation Nr: 1335237	
Decision Date: 11/01/13    Archive Date: 11/13/13

DOCKET NO.  10-13 835A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to service connection for hearing loss. 

2.  Entitlement to service connection for tinnitus.  


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

L. Crohe, Counsel
INTRODUCTION

The Veteran had active military service from April 1966 to April 1968.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied the appellant's claims of entitlement to service connection for hearing loss, tinnitus, and skin cancer.  In his November 2008 Notice of Disagreement, the Veteran limited his appeal to the issues regarding hearing loss and tinnitus.  

In February 2013, the Veteran testified before the undersigned Veterans Law Judge at a video conference hearing; a transcript of that hearing has been associated with the Veteran's paperless claims file.  


FINDINGS OF FACT

1.  The available record does not provide a basis for concluding that hearing loss or tinnitus is attributable to military service.

2.  The Veteran failed, without good cause, to report for VA examination scheduled for the purpose of obtained medical nexus opinions regarding the claimed disabilities.


CONCLUSIONS OF LAW

1.  The criteria for service connection for hearing loss are not met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.655, 3.385 (2013).

2.  The criteria for service connection for tinnitus are not met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.655, 3.385 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify & Assist

The Veterans Claims Assistance Act of 2000 (VCAA) specifies VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.  In this case, the outcome of each claim is affected by 38 C.F.R. § 3.655(a) , which directs the actions VA must take when entitlement, or continued entitlement, to a benefit cannot be established or confirmed without a current VA examination and a claimant, without good cause, fails to report for the examination.  That regulation directs that, when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination, and a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record.  In such an instance, the regulation requires that the claims for service connection be considered based on the evidence of record, without further development, if the available record does not establish entitlement to the benefit.  (When the examination was scheduled in conjunction with a reopened claim which was previously disallowed, or a claim for increase, the claim shall be denied.)  38 C.F.R. § 3.655(a), (b). 

The Board has considered whether the record establishes the claims for service connection for hearing loss and tinnitus.  As discussed below, because entitlement is not established without VA examination, the claims must be denied.

The actions taken in this case under 38 C.F.R. § 3.655 with respect to the claims for service connection are mandatory, if the evidence already of record does not establish entitlement.  Khyn v. Shinseki, 23 Vet. App. 228 (2011).  The Board's review of the duties to notify and assist with respect to those claims is therefore limited.  However, because the Board must weigh the Veteran's credibility with respect to the issues, the Board has considered whether the Veteran was properly notified of the evidence he might provide to substantiate his claims, prior to his failure to appear for examination.  The Board has considered whether he was notified that entitlement could not be established or confirmed without a current VA examination, and whether he was notified of the examinations and the requirement to report. 

Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of (1) the information and evidence not of record that is necessary to substantiate a claim, (2) which information and evidence VA will obtain, and (3) which information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a) (West 2002); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). 

In this case, an April 2008 letter was issued to the Veteran, prior to the rating decision on appeal, with regard to his hearing loss and tinnitus claim.  The letter notified the Veteran of what information and evidence was needed to substantiate his claim of service connection, what information and evidence must be submitted by the claimant, what information and evidence will be obtained by VA, and the evidence necessary to support a disability rating and effective date.  Id.; but see VA O.G.C. Prec. Op. No. 1-2004 (Feb. 24, 2004); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

After the initial notice to the Veteran of VA's duties to notify and assist him, the Veteran testified before the undersigned Board member in February 2013.  

The Veteran was notified, by an April 2013 notice issued by the Appeals Management Center (AMC), that further development was required to substantiate the claims on appeal.  The April 2013 AMC letter included notice to the Veteran that further development of the claim was being conducted, and that he would be scheduled for examination.  This letter informed him that, if he was unable to report for the scheduled examination, he could reschedule it.  The letter also advised him that if he failed to report for examination without good cause, his claims could be rated on the evidence of record.  

In April 2013, VA received notification from the Houston VA Medical Center that the Veteran failed to report to the VA hearing loss and tinnitus examination.   In July 2013, the Veteran was sent a supplemental statement of the case (SSOC) which advised him that he had been scheduled for examinations, had not appeared for examinations, did not provide good cause for why he failed to report for the examinations, and that evidence which may have resulted in a favorable decision could not be considered and his claims were accordingly denied.  The Veteran did not respond. 

The Veteran's service treatment records have been obtained as well as post-service VA treatment records.  In March 2013, the Board remanded the claims to obtain a VA examination report and VA treatment records.  All records identified by the Veteran as relevant to his appeal prior to the failure to report for examination were obtained.  There has been substantial compliance with the March 2013 remand instructions.   Under the circumstances, VA's duties to notify and assist the Veteran have been satisfied.  No further notice or assistance to the Veteran is required.  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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). 

For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to hearing loss and tinnitus issues.

II.  Service Connection

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.

Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes).  Hensley v. Brown, 5 Vet. App. 155, 159 (1993). 

For the purposes of applying the laws administered by VA, the thresholds for normal hearing are between 0 and 20 decibels, and higher thresholds show some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  Impaired hearing will be considered to be a disability for VA purposes 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.

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third element for certain chronic disabilities listed in 38 C.F.R. §3.309(a), including organic diseases of the nervous system such as sensorineural hearing loss, is through a demonstration of continuity of symptomatology.  See Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a).

In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").

"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")).

Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 

Service connection for certain diseases, including organic diseases of the nervous system such as sensorineural hearing loss, may also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a), 3.309(a). 

Notwithstanding the foregoing presumption, a claimant is not precluded from establishing service connection with proof of direct causation.  38 U.S.C.A. § 1113(b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The Board has reviewed all the evidence in the Veteran's claims file (Veterans Benefits Management System (VBMS) electronic record).  

The Veteran has reported that he was exposed to gun and artillery fire during service.  Based on his MOS as Field Artillery Crewman and a principle duty of Gunner, the Board concludes that the Veteran likely experienced some in-service noise consistent with the conditions of that time.

Here, medical records reveal that the Veteran has been diagnosed as having tinnitus and hearing loss.  July 2008 VA audiological evaluation revealed puretone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
25
30
20
20
LEFT
30
25
30
25
40

Speech recognition scores were 96% in the right ear and 94% in the left ear.  The Veteran was diagnosed with unilateral sensorineural hearing loss in the left ear and intermittent bilateral tinnitus.  While the Veteran did not have a right ear hearing loss disability by VA standards at the time of his VA examination, the Board acknowledges that 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 Board also notes that during his February 2013 video conference hearing, the Veteran reported that his hearing loss had been getting worse.  As a result, the Veteran was scheduled for a new VA audiological evaluation in April 2013.  However, as the Veteran failed to report to this examination, the current record reflects that he does not have a right ear hearing loss by VA standards.  Regardless, current tinnitus and left ear hearing loss have been demonstrated.

The Veteran claims his hearing loss and tinnitus have existed since 1967.  He reported that while in service, he was exposed to artillery fire and also served as a Gunner on a Howitzer.  He did not use any hearing protection.  He indicated that his tinnitus began in 1967 while firing weapons in service.  His tinnitus occurred in both ears and has been recurrent.  The tinnitus recurs at the frequency of two times per week and lasts for two hours.  After military service, he worked as a teacher for 30 years without hearing protection.  He has used power tools with hearing protection.  He has no family history of ear disease, no previous history of ear disease, and no history of head or ear trauma.  See July 2008 VA examination report and February 2013 hearing transcript.  He is competent to report symptoms of hearing loss and tinnitus, as well as a continuity of symptomatology.   However, his reports must be weighed against the objective evidence and their credibility must be assessed.  See Jandreau, 492 F.3d at 137; Buchanan, 451 F.3d at 1337.

The Veteran's service treatment records, including March 1966 entrance and March 1968 separation Reports of Medical Examination and Histories are negative for any complaints, treatment, or diagnoses relating to hearing loss and tinnitus.  More specifically, on March 1968 separation audiometry, puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
5

5
LEFT
5
5
10

0

A clinical evaluation of the ears was normal.  On March 1968 Report of Medical History, the Veteran specifically denied ear, nose, or throat trouble and hearing loss.  

Service personnel records included a DD Form 214 that showed a military occupational specialty of Field Artillery Crewman.  Other personnel records refer to a principle duty of "Gunner."

The objective evidence otherwise indicates that the Veteran's current hearing loss and tinnitus did not manifest until more than a year after his separation from service.  The first post-service treatment records include records from the Alexandria and Houston VA Medical Centers (VAMCs).  An August 2004 record noted that the Veteran was slightly hard of hearing.  In April 2007, the Veteran had complaints of tinnitus and hearing loss.  The physician assistant noted the Veteran's history of artillery exposure in the military and encouraged him to file a claim for hearing loss.  There is no clinical evidence of any earlier symptoms of hearing loss or tinnitus following service.

Furthermore, the Veteran has provided varying statements as to the history of his tinnitus and hearing loss.  For example, he has contended that his hearing loss and tinnitus have persisted ever since his service.  See July 2008 VA examination report.  However, on a March 1968 Report of Medical History at separation, he specifically denied ear, nose, or throat trouble and hearing loss.  Also on April 1968 statement of medical condition, he reported that that there had been no change in his medical condition since his separation examination.  An October 2003 VA treatment record shows that the Veteran specifically denied any hearing difficulty, tinnitus, or vertigo.  

In light of the absence of any objective evidence of complaints of or treatment for hearing loss or tinnitus during service, the fact that subsequent service treatment records as well as the Veteran's March 1968 separation examination did not reflect any tinnitus or hearing loss disability, and his inconsistent and contradictory statements concerning the history of his tinnitus and any hearing loss, the Board concludes that his reports concerning the history of his tinnitus and hearing loss, including those of a continuity of symptomatology since service, are not credible.  Thus, neither the clinical record nor the lay statements of record establish a continuity of symptomatology in this case, precluding an award of service connection on this basis.

If a chronic disease, such as hearing loss, is shown in service and thereafter, service connection will be conceded.  38 C.F.R. § 3.303(b).  There must, however, be sufficient observations in service to identify the disease entity.  Id.  Here, there is no credible evidence showing any hearing loss or tinnitus in service.  

On July 2008 VA examination, the examiner found that the etiology of the bilateral tinnitus was at least as likely as not a symptom associated with the Veteran's hearing loss.  The examiner opined that it was not likely that the Veteran's hearing loss and tinnitus were related to the noise exposure he experienced during military service.  The examiner reasoned that the Veteran's separation examination did not indicate a hearing loss, which implies that the Veteran could not have been experiencing the difficulties he reported.  

In the March 2013 remand, the Board previously noted that the examiner did not provide any medical reasons for why the Veteran's history of decreased hearing acuity and tinnitus during service should not be believed.  The Board stated that it did not appear from the examiner's explanation that the Veteran's account was considered.  Also, the Board found that in light of the Veteran's testimony indicating that his hearing loss keeps gradually getting worse, the Board remanded the Veteran's claims to afford him a contemporaneous examination.  

As the Veteran failed to report for a VA examination, the Board must rely on the evidence of record.  38 C.F.R. § 3.655.  There is no other medical evidence of record, VA or private, showing that the Veteran's current hearing loss and tinnitus are related to his military service, to include acoustic trauma therein.  Additionally, neither the Veteran nor his representative has alluded to the existence of any such evidence.  Also, as discussed above, the record fails to demonstrate any credible evidence of a continuity of symptomatology.  Thus, the preponderance of the evidence is against the claim.  The benefit-of-the-doubt doctrine is therefore not helpful to the claimant and the claim of service connection must be denied.  See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57


ORDER

Service connection for hearing loss is denied.  

Service connection tinnitus is denied.



________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs