Citation Nr: 1335769	
Decision Date: 11/05/13    Archive Date: 11/13/13

DOCKET NO.  10-17 687	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to service connection for bilateral plantar fasciitis post-operative residuals.

2.  Entitlement to service connection for bilateral hearing loss.

3.  Entitlement to service connection for tinnitus.

4.  Entitlement to service connection for an acquired mental disorder, to include depressive disorder not otherwise specified (NOS).


REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

W.T. Snyder, Counel


INTRODUCTION

The Veteran served on active duty from May 1974 to July 1975.

This appeal to the Board of Veterans' Appeals (Board) arose from September 2009 and February 2010 rating decisions by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Oakland, California.  The September 2009 rating decision denied entitlement to service connection for the bilateral foot disability; and, the February 2010 rating decision denied the hearing loss, tinnitus, and mental disorder claims.  The Veteran perfected separate appeals of those determinations.

On his April 2010 Substantive Appeal (VA Form 9) that perfected the bilateral foot claim, the Veteran requested a Travel Board hearing.  In June 2010, however, he withdrew his request for a board hearing and requested a hearing before an RO decision review officer (DRO), which was held in February 2011.  A transcript of that proceeding is in the claims file.

The Veteran has a Virtual claims file, which is a highly secured paperless repository, associated with his appeal.  The Board has considered the documents in both files while reviewing this appeal.

The issues of entitle to service connection for bilateral foot disorder and an acquired mental disorder, to include a depressive disorder NOS, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The Veteran does not have a current bilateral hearing loss disability.

2.  The Veteran does not have a currently diagnosed tinnitus disorder.


CONCLUSIONS OF LAW

1.  The requirements for a bilateral hearing loss disability are not met.  38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.385 (2013).

2.  Tinnitus was not incurred in active service, nor may it be presumed to have been incurred in active service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.307(a), 3.309(a).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The requirements of the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126, have been met.  There is no issue as to providing an appropriate application form or completeness of the application.  Prior to issuance of the rating decisions appealed, in letters of January and November 2009, VA notified the Veteran of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain.  See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Each letter also provided adequate notice of how disability ratings and effective dates are assigned in the event service connection is granted.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The letters were both time- and content-compliant.

The United States Court of Appeals for Veterans Claims (Court) has interpreted the provisions of 38 C.F.R. § 3.103(c)(2) as imposing two distinct duties on VA employees when conducting hearings: the duty to explain fully the issues; and, the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam).  The transcript reflects the DRO identified the issues and asked questions of the Veteran as needed to ensure the Veteran addressed the criteria for service connection.  The DRO also specifically invited testimony from the Veteran's wife, who had remained silent to that point.  Neither the Veteran nor his representative voiced any disagreement with the manner the hearing was conducted.  Hence, the Board finds the Bryant notice requirements were complied with.

In light of the above, VA complied with all VCAA notice requirements.

VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations.  See 38 C.F.R. § 3.159(c).  The RO obtained the Veteran's service treatment records and VA outpatient records.  Neither the Veteran nor his representative asserts that there are additional records to be obtained, or that VA failed to obtain identified records.  The Veteran submitted additional outpatient records under waiver of initial RO review and consideration, see 38 C.F.R. § 20.1304, but they are duplicative of records that were already in the claims file.  In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.  Hence, the Board may address the merits of the appeal without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).

Governing Law and Regulations

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, 1131; 38 C.F.R. § 3.303.  Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).

Certain chronic organic diseases of the central nervous system are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service.  This presumption applies to veterans who have served 90 days or more of active service during a war period or after December 31, 1946.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  VA deems a sensorineural hearing loss as an organic disease of the central nervous system.  See VA Under Secretary for Health Memorandum (October 1995); see also 38 U.S.C.A. §§ 1101; 38 C.F.R. § 3.307(a) and 3.309(a).
 
Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element in a claim involving a chronic disease, is through a demonstration of continuity of symptomatology, Barr v. Nicholson, 21 Vet. App. 303 (2007), if the condition is a chronic disease.  Walker v. Shinseki, 708 F.3d 1131 (Fed. Cir. 2013).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a chronic disease was "noted" during service or within the applicable presumptive period; (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.  Walker, supra; see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  If a chronic disease is adequately demonstrated during service and at any time thereafter, service connection will be conceded.  38 C.F.R. § 3.303(b).

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

Analysis
  
Bilateral Hearing Loss

The Veteran asserts he sustained hearing loss as a result of his noise exposure in basic and advanced infantry training, where he was exposed to explosions as part of his training.  He testified further that he had difficulty hearing throughout his active service.  He also testified he left his last full-time job, in part, because of hearing difficulty.  The Veteran's wife testified to his hearing loss and noted he played the television at a very high volume.

The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  See Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  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 (Hz) is 40 decibels (db) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 db or greater; or, when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service.  Hensley , 5 Vet. App. at 159.

The December 2009 VA examination report reflects the examiner conducted a review of the claims file as part of the examination.  The Veteran reported complaints of occasional difficulty clearly understanding speech at a distance, in noise, as well as problems hearing the telephone and television.  The examiner noted the Veteran's Military Occupation Specialty was ammunition storage; and, the Veteran reported exposure to explosions and artillery fire during his year of active service.
The examiner noted the service treatment records do not contain any entries related to complaints of or treatment for hearing loss.

Further, the audiometric at the Veteran's 1974 examination for separation revealed as follows:








500
1000
2000
3000
4000
RIGHT
15
5
5

10
LEFT
10
10
5

5

The examiner noted the above audiometric shows the Veteran's hearing was normal in 1975 when he separated from active service.  The Board notes the Veteran's September 1975 Report of Medical History reflects he denied any history of hearing loss.

At the December 2009 examination, the Veteran's hearing manifested as follows:








500
1000
2000
3000
4000
RIGHT
20
25
20
25
15
LEFT
20
20
20
15
25

Speech recognition was 94 percent bilaterally.  The examiner noted middle ear function was normal.  The examiner noted the Veteran's hearing was clinically normal bilaterally.

As shown by the objective evidence set forth above, the Veteran's hearing does not manifest with a hearing loss of sufficient severity to constitute a disability under VA regulations.  38 C.F.R. § 3.385.  Hence, there is no issue to resolve as concerns a causal connection with active service; and, the Board is constrained to deny the claim.  38 C.F.R. § 3.303.

Tinnitus

VA also deems tinnitus as an organic disease of the central nervous system.  See VA Under Secretary for Health Memorandum (October 1995); see also 38 U.S.C.A. §§ 1101; 38 C.F.R. § 3.307(a) and 3.309(a).

In addition to the legal requirements set forth earlier, in relevant part, 38 U.S.C.A. § 1154(a) 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 Board must fully consider the lay assertions of record.  Davidson, 581 F.3d 1313.  A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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.  Davidson, 581 F.3d at 1316; see Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007).
 
When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. at 511, aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  The bottom line is that lay testimony, where probative on the issue, still must be assessed for credibility and accuracy.

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. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Analysis

The service treatment records do not contain any entries related to complaints of or treatment for ringing of the ears.  As noted earlier, the Veteran denied any history of hearing loss on his June 1975 Report of Medical History, and neither did he indicate any problem with ringing of the ears.  The June 1975 examination report reflects the Veteran's ears were assessed as normal.

The December 2009 examination report reflects the Veteran was uncertain of the date and circumstances of the onset of his claimed tinnitus, and he denied that it was constant.  The examination report notes the Veteran reported a high-pitched ringing that occurred for very short duration after exposure to noise.  The sensation lasted just a few seconds and was very rare.  The Veteran denied post-service occupation and recreation noise exposure.

The examiner noted that all of the Veteran's hearing tests were within normal limits.  The examiner noted further that the ringing described by the Veteran rarely occurred, and was noted only on noise exposure.  The examiner opined the Veteran's description indicated a normal reaction to loud noise rather than an indication of pathological tinnitus or any clinical condition.

At the hearing, contrary to his reports at the examination, the Veteran testified the ringing in his ears started in advanced infantry training and continued continuously afterwards.  In response to a question from his representative, he also testified that the ringing was constant, and it was ongoing at the hearing.  See Transcript, p. 3.
The Board acknowledges that there is no clinical test to confirm the presence of tinnitus.  As a result, the diagnosis is generally made on the basis of a patient's report of his or her history and symptoms.  Thus, given the fact the Veteran is fully competent to recognize and report ringing of his ears, see 38 C.F.R. § 3.159(a)(2), his lay reports and testimony are sufficient to prove his claim-if the Board finds them credible and consistent with the other evidence of record.

The Board notes the patent conflict between the Veteran's reports to the audio examiner in December 2009 and his hearing testimony some 14 months later in February 2011.  The Board is aware that a lay claim may not be rejected solely because of the absence of contemporaneous medical documentation.  Barr, 21 Vet. App. 303.  But neither is the Board required to ignore the fact the Veteran did not complain of ringing in his ears at his physical examination at his discharge from active service.  The Board also notes the fact the Veteran apparently did not complain of ringing in his ears to his wife, as she made no mention of it in her statement or her hearing testimony.

In addition to the above, the Board finds most persuasive the fact that, when asked at the 2009 examination, the Veteran did not provide a date of onset, and-per the examiner, the intermittent symptoms the Veteran described did not describe clinical tinnitus.  Further, the audio examiner observed there was no associated hearing loss despite the Veteran's reported history of in-service noise exposure.  The Board finds the Veteran's reports at the December 2009 examination more credible than his hearing testimony.  Hence, the preponderance of the evidence is against the claim.  Thus, the Board is constrained to deny the claim on both a presumptive and direct basis.  38 C.F.R. § 3.303, 3.307(a), 3.309(a). 

In reaching this decision the Board considered the doctrine of reasonable doubt.  As the preponderance of the evidence is against the Veteran's claims, however, the doctrine is not for application.  Schoolman v. West, 12 Vet. App. 307, 311 (1999).

ORDER

Entitlement to service connection for bilateral hearing loss is denied.

Entitlement to service connection for tinnitus is denied.


REMAND

The Board deems the claims insufficiently developed for appellate review of the bilateral foot and mood disorder claims.

Accordingly, the case is REMANDED for the following action:

1.  The AMC/RO shall ask the National Personnel Records Center to provide the Veteran's service personnel records.  If not provided, the AMC/RO will document all efforts to obtain them.

2.  After the above is complete and any additional records are added to the claims file, send the claims file to the examiner who conducted the August 2009 feet examination.  Please advise the examiner of the following:

The lay statements of the Veteran's wife and mother are competent evidence to be considered and assessed just as is the Veteran's; and, 2) the absence of evidence of treatment, standing alone, is not affirmative evidence of the absence of a disorder or symptomatology.  If absence of treatment is significant, the examiner should explain why.

In addition to the above: in light of the fact the service treatment records note the Veteran underwent surgery for bilateral plantar fasciitis, with spurs, and August 2009 foot X-rays show the presence of a calcaneal spur on each foot, ask the examiner to provide a complete explanation for his negative nexus opinion.

3.  After the above is complete, send the claims file to the examiner who conducted the March 2011 mental disorders examination.  Ask the examiner to explain why opining on any nexus (regardless of whether positive or negative) between the diagnosed depressive disorder NOS and the Veteran's active service would be speculative or conjecture.  Ask the examiner to explain what additional evidence would be needed in order for the requested opinion to be provided.  If added to the claims file, do the Veteran's service personnel records provide the additional evidence needed for an opinion?

Whatever the mental disorder examiner's answers to the above questions, a full explanation of them should be provided.

In the event that either examiner who conducted the feet and mental disorders examinations is no longer available, refer the claims file to an equally qualified examiner.

Should either examiner, or substitute examiner, advise the requested opinion cannot be rendered without another examination of the Veteran, the AMC/RO will arrange the examination.  The claims file must be provided for review by the examiner as part of the examination.

4.  Thereafter, the AMC/RO must review the claims file and ensure that the foregoing development actions, as well as any other development that may be in order, has been conducted and completed in full.

5.  After completion of all of the above, the AMC/RO should re-adjudicate the claims remaining on appeal.  If the decision remains in any way adverse to the Veteran, he and his representative should be provided with a Supplemental statement of the case (SSOC). 

The case should thereafter be returned to the Board, if in order.  The Board intimates no opinion as to the ultimate outcome of this case.  The Veteran need take no action unless otherwise notified.  VA will notify him if further action is required on his part.  He has the right to submit additional evidence and argument on the matter or matters 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).



______________________________________________
THOMAS H. O'SHAY
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs