Citation Nr: 1335719 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 10-30 924 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for ankylosing spondylitis. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1972 to October 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The issues of service connection for ankylosing spondylitis and for tinnitus, to include on a secondary basis are being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if action on his part is required. FINDING OF FACT The Veteran's bilateral sensorineural hearing loss (SNHL) was initially manifested many years after service, and is not shown to be related to his service. CONCLUSION OF LAW Service connection for bilateral hearing loss is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013) REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The VCAA, in part, 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, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. An August 2008 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing, and informed him of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record, and has not alleged that notice was less than adequate. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that a RO official or VLJ who conducts a hearing fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. At the Travel Board hearing the undersigned advised the Veteran of what is needed to substantiate a service connection claim; the Veteran's testimony in response to questions posed reflected his awareness of what must still be shown. The Veteran's service treatment records and pertinent postservice treatment records have been secured. The RO arranged for a VA examination. The Board has found the examination adequate to consider the issue addressed on the merits. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that the record, as it stands, includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Factual background, Legal criteria and Analysis The Board has reviewed all of the evidence in the appellant's claims file and in Virtual VA. Although the Board has an obligation to review the entire record, there is no requirement that each item of evidence be discussed in detail. Rather, the Board will summarize the evidence as appropriate, and the Board's analysis will focus specifically on what the evidence of record shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Audiometry on service enlistment examination in August 1972 disclosed that puretone thresholds, in decibels, were 20, 10, 10 and 20, at 500, 1,000, 2,000 and 4,000 Hertz, respectively, for the right ear; at corresponding frequencies in the left ear, the puretone thresholds in decibels were 15, 5, 10 and 10. Another audiogram was conducted in January 1973. The puretone thresholds in the right ear were 20, 10, 10, 10 and 5 decibels, at 500, 1,000, 2,000, 3,000 and 4,000 Hertz, respectively; in the left ear, they were 15, 5, 10, 0 and 0 decibels, respectively. It was indicated that the test was within normal limits. The Veteran denied having a hearing loss on a report of medical history in August 1975 (in connection with his service separation examination). Audiometry on service separation examination in August 1975 revealed that puretone thresholds in decibels in the right ear were 20, 10, 5 and 15, at 500, 1,000, 2,000 and 4,000 Hertz, respectively. At corresponding frequencies in the left ear, the hearing threshold levels in decibels were 25, 15, 5, and 15. VA outpatient treatment records reflect the Veteran was seen in September 2008 and audiometry revealed a moderately severe to severe conductive hearing loss in the right ear and a moderate to severe mixed hearing loss in the left ear. The examiner stated that the Veteran's hearing acuity had decreased since a prior examination in August 2000. On October 2010 VA audiological evaluation, the Veteran reported exposure to noise from generators and engines, and on the firing range in service. He also reported postservice occupational noise exposure. Audiometry revealed that puretone thresholds at the pertinent frequencies (in each ear) ranged from 75 to 85 decibels. The examiner concluded the Veteran's hearing loss was not "caused by or a result of noise exposure and/or decibel loss [in service]". She explained that the Veteran's hearing acuity on both entrance and separation examinations was within normal limits bilaterally, with no significant threshold shifts identified, and that the evidence reviewed suggested "it is not likely that the Veteran's current hearing loss is related to him MOS noise exposure and/or decibel loss noted during service". Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of: (1) a current disability (for which service connection is sought); (2) evidence of incurrence or aggravation of a disease or injury in service; and (3) evidence of a nexus between the claimed disability and the disease or injury in service. See Shedden v, Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). Certain listed chronic diseases (among them SNHL, as an organic disease of the nervous system) may be service-connected on a presumptive basis if manifested to a compensable degree within a specified period of time postservice (one year for SNHL). 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Hearing loss disability for VA compensation purposes is defined in 38 C.F.R. § 3.385. Impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies 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. To establish service connection for hearing loss, it is not required that a hearing loss disability under 38 C.F.R. § 3.385 be demonstrated during service, although a hearing loss disability by such standards must be currently present; service connection is possible if a current hearing loss disability can be adequately linked to service. Ledford v. Derwinski, 3 Vet. App. 87 (1992). In Hensley v. Brown, 5 Vet. App. 155, the Court held that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Service personnel records reflect the Veteran was a power generator mechanic; based on his occupation in service, it may be conceded that he was exposed to noise trauma in service. Service entrance audiometry in August 1972 and January 1973 showed the Veteran had normal hearing; his service separation examination audiometry showed some loss of hearing (albeit not to a disability level) based on the left ear puretone threshold at 500 hertz. Notably, a hearing loss disability was first shown in 2003. On October 2010 VA examination, the examiner specifically concluded the Veteran's bilateral hearing loss was not related to service; the examiner apparently noted the puretone threshold shift at 500 hertz in the left ear and found it to not be significant (as it was noted in support of the opinion against the Veteran's claim that audiometry at separation showed normal nearing, i.e., no disability). As the opinion cites to factual data, and identifies a nonservice-related etiological factor for the hearing loss, i.e., postservice noise trauma, the Board finds it probative and (because there is no competent evidence to the contrary) persuasive. The lay Veteran's assertions that his bilateral hearing loss is related to service are not competent evidence in this matter. Laypersons are competent to provide opinions considered competent evidence regarding the etiology of a disability in some instances. However, the matter of a nexus between a current hearing loss disability and remote noise trauma, in the absence of a showing of continuity of symptoms during the intervening period, is a medical question beyond the scope of lay observation/common knowledge. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In summary, the evidence of record shows that a bilateral hearing loss became manifest many years after service and is not shown to be related to the Veteran's service/noise trauma therein. Accordingly, the preponderance of the evidence is against the claim of service connection for a bilateral hearing loss. ORDER Service connection for bilateral hearing loss is denied. REMAND The Veteran seeks service connection for ankylosing spondylitis of the neck and back. He relates that during service he was driving a car in a race, lost control, and hit a retaining wall. He states that his symptoms at the time included neck pain. He recalls he went on sick call on two occasions in service, but was merely told he had slept wrong or had a sprain. His service treatment records are silent for complaints or findings concerning the spine. The spine and neck were normal on clinical evaluation on August 1975 service separation examination. Private medical records show the Veteran was seen by J. E. Hull, M.D. in January 1988 for complaints of stiffness and pain in his low back, and sometimes in his upper back and neck. It was noted that he was treated with medication on one occasion (with no benefit) and had received a shot and some arthritis medication (that seemed to have helped some) from another physician. The diagnosis was ankylosing spondylitis. The provider stated the Veteran had had ankylosing spondylitis for a number of years. VA medical records show the Veteran was seen in June 2008 and gave a history of a motor vehicle accident in February 2008, with associated complaints of neck pain. He stated he had experienced neck pain prior to the accident. In a statement received in July 2012, O.L.C., Jr. advised he had been the Veteran's company commander. He described an incident when the Veteran lost control of his car and ran into a retaining wall. He related that at the time of the accident, the Veteran did not think it was as serious as it now appears to have been. The Board finds the Veteran has submitted credible evidence that during service he was in a motor vehicle accident (albeit with the nature and scope of any injuries sustained unknown). Regarding his claim of service connection for tinnitus, the Veteran asserts he was subjected to noise trauma working with generators in service. When he was seen by Dr. Hull in January 1989, it was noted that he was not taking his medication on a regular basis due, in part, to associated tinnitus. The medication in question is unclear from this record, but additional records from Dr. Hull reflect the Veteran had Indocin prescribed for ankylosing spondylitis. At the hearing before the undersigned in October 2012, it was noted that this appeared to raise a claim of secondary service connection for tinnitus. Such matter has not been addressed by the RO. In Allen v. Brown, 7 Vet. App. 439 (1995), the Court held that "disability" as set forth in 38 U.S.C.A. § 1110 (West 2002) "refers to impairment of earning capacity, and that such definition mandates that any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, shall be compensated." Thus, when aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See also 38 C.F.R. § 3.310(b) (2012). On VA audiological evaluation in October 2010, the Veteran stated he was unsure as the etiology or onset of tinnitus. The examiner opined she could not provide an opinion regarding the etiology of tinnitus without resort to speculation. A VA medical examination is not inadequate merely because the medical examiner states he or she cannot reach a conclusion without resort to speculation. While VA has a duty to assist a veteran by providing a medical examination in certain situations, that duty does not extend to requiring a VA physician to render an opinion beyond what may reasonably be concluded from procurable medical evidence. Jones v. Shinseki, 23 Vet. App. 382 (2010). Nonetheless, in Jones the Court did find that simply concluding that the etiology of a disability could not be resolved without speculation without providing any explanation why that is so, is inadequate. The phrase "without resort to speculation" should reflect the limitations of knowledge in the medical community at large and not those of a particular examiner. Further, the Court indicated the examiner should clearly identify precisely what facts cannot be determined. For example, it should be clear from the examiner's remarks whether it cannot be determined from current medical knowledge that a specific injury or disease in service could cause the claimed condition, or that the actual cause cannot be selected from multiple potential causes. The case is REMANDED for the following: 1. The RO must provide appropriate VCAA notice as to the information and evidence necessary to substantiate the claim for service connection for tinnitus on a secondary basis under the provisions of 38 C.F.R. § 3.310 (2013). 2. The RO should arrange for a VA orthopedic examination to determine the likely etiology of the Veteran's ankylosing spondylitis. The Veteran's record must be reviewed by the examiner in conjunction with the examination; the examiner should accept as credible that the Veteran was involved in an automobile accident in service (but with nature and scope of injuries unknown). The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or higher) that the Veteran's ankylosing spondylitis is related to service, to include as due to an automobile accident therein. The examiner must explain the rationale for the opinion, citing to supporting factual data as deemed appropriate. 3. Thereafter, the RO should arrange for an otolaryngologic examination of the Veteran to determine the likely etiology of his tinnitus. The Veteran's record must be reviewed by the examiner in conjunction with the examination. Based on review of the record and interview of the Veteran the Veteran should provide opinions that respond to the following: (a) Based on review of the record and interview of the Veteran, please identify the most likely etiology for his tinnitus. Specifically, is it at least as likely as not (a 50 percent or higher probability) that the tinnitus is directly related to his service/noise trauma therein? If not please identify the etiological factor(s) considered more likely.. (b) If service connection for ankylosing spondylitis has been granted, please opine whether it is at least as likely as not (a 50 percent or higher probability) that medication the Veteran took for ankylosing spondylitis caused or aggravated (the opinion must discuss the concept of aggravation) his tinnitus, quantifying the degree of tinnitus due to any such aggravation. The examiner must explain the rationale for all opinions. 4. The RO should then review the record and readjudicate the remaining claims. If either remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs