Citation Nr: 1336276	
Decision Date: 11/07/13    Archive Date: 11/13/13

DOCKET NO.  10-34 317	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to an increased rating for hypertension, currently rated as 10 percent disabling.

4.  Entitlement to a total disability rating for compensation on the basis of individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs




ATTORNEY FOR THE BOARD

J. M. Kirby, Counsel


INTRODUCTION

The Veteran served on active duty from November 1972 to January 1993.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.  

The Veteran's hypertension, tinnitus and TDIU issues are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center in Washington, D.C.


FINDING OF FACT

The Veteran does not have hearing loss for VA compensation purposes in either ear.


CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

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).  A February 2010 letter satisfied the duty to notify provisions, to include notifying the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

The Veteran's service treatment records and VA medical treatment records have been obtained; with respect to his claim for service connection for hearing loss, the Veteran has not identified any private treatment records pertinent to his appeal.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  The record does not reflect that the Veteran is in receipt of disability benefits from the Social Security Administration.  38 C.F.R. § 3.159 (c) (2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010).  The April 2010 VA examination is adequate for rating purposes.  38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  It considered the Veteran's history of noise exposure, both in-service and post-service, as well as his situations of greatest hearing difficulty.  An audiogram was conducted and word recognition percentage testing completed; the examiner provided a medical opinion based on the clinical findings of record.  Significantly, the Board observes that the Veteran does not report that his hearing loss has worsened since that time, and thus a remand is not required solely due to the passage of time since the April 2010 VA examination.  See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995).

Review of the record does not indicate that additional evidence pertinent to the issue adjudicated in this decision is available, but not associated with the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication VA did not provide sufficient notice or assistance, such that it reasonably affects the outcome of the case, the Board finds that any such lack of sufficient notice is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).  

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).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset, frequency, duration, and severity of his symptoms.  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; Jandreau v. Nicholson, 492 F. 3d 1372 (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, 492 F.3d at 1376-77. 

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).  In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

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 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See id. at 303-04.  

The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions).  

Service connection for sensorineural hearing loss may be granted if such disease is manifested in service, or manifested to a compensable degree within one year following separation from service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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.  See Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes).  

The Veteran's service treatment records do not document a diagnosis of sensorineural hearing loss, and the objective audiology tests do not establish diagnosed hearing loss in either ear in service or at service separation.  Specifically, the Veteran's October 1972 service entrance examination and subsequent routine audiograms did not show hearing loss for VA purposes at any time during service.  At the October 1992 service separation examination, the Veteran denied experiencing hearing loss or ear/nose/throat trouble.  Speech audiometry revealed speech recognition ability was not tested, but puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
0
10
LEFT
5
0
5
5
10

The post-service evidence of record, dated within one year of the Veteran's service separation, also does not establish that bilateral hearing loss that manifested to a compensable degree.  Nevertheless, service connection for hearing loss can still be established if medical evidence shows that a current impaired hearing disability is actually due to incidents during service.  Hensley v. Brown, 5 Vet. App. 155 (1993).

However, the evidence of record does not establish that hearing loss for VA purposes is currently diagnosed for either ear.  The post-service medical evidence does not contain any private or VA evidence indicating a level of bilateral hearing loss meeting the VA criteria for a hearing loss disability under 38 C.F.R. § 3.385.  The September 1994 VA examination report indicated that no hearing loss was demonstrated on examination.  A July 2002 private treatment record indicated that examination was negative for hearing loss.  A January 2010 VA treatment record indicated that audiological evaluation, including audiograms, showed that hearing was within normal limits across the frequency range, with excellent speech discrimination ability bilaterally.  Similarly, at the April 2010 VA examination, speech audiometry revealed speech recognition ability of 96 percent bilaterally; puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
10
10
15
LEFT
25
10
10
15
20

In his July 2010 notice of disagreement, the Veteran asserted that there was "more than a reasonable doubt" in favor of his claim for service connection for bilateral hearing loss.  In both that statement and his August 2010 VA Form 9, the Veteran asserted long-term noise exposure in service as a result of work on the flight deck of an aircraft carrier.  The Veteran's assertions as to his in-service acoustic trauma are credible lay statement as to his experiences.   Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  Additionally, the Board does not dispute that the evidence establishes mild hearing loss at 6000 Hertz and above, as noted in the April 2010 VA examination report.  However, the pertinent regulations applicable to determining whether there is a hearing loss disability for VA purposes considers only the hearing acuity at five audiometric thresholds, not the degree of in-service noise exposure, or the hearing acuity at thresholds of 6000 Hertz and above.  See 38 C.F.R. § 3.385.

Ultimately, the evidence does not reflect that hearing loss in either ear existed in service, manifest to a compensable degree within one year of service separation, or is currently diagnosed.  Without competent evidence of a diagnosed bilateral hearing loss disability for VA purposes, service connection for bilateral hearing loss is not warranted.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (holding that service connection requires a showing of current disability).  For this reason, the Veteran's claim for service connection for hearing loss must be denied.



ORDER

Service connection for bilateral hearing loss is denied.


REMAND

In his August 2010 substantive appeal, the Veteran questioned whether VA had considered records from his private physician, Dr. Fishenfeld, and indicated that he had provided the necessary authorization for VA to obtain those records.  Review of the claims file reveals that records from Dr. Fishenfeld dated from 2002 to 2006 were previously obtained in conjunction with the Veteran's prior claims, but not in conjunction with those claims.  Further, the VA Form 21-4142s (authorization forms) submitted in conjunction with his most recent claim for an increased rating for hypertension do not identify Dr. Fishenfeld or any other physician.  Regardless, the Veteran has identified outstanding treatment records that are potentially relevant to his claim for increase.  On remand, these and any pertinent, outstanding VA treatment records should be obtained.

Additionally, the April 2010 VA opinion as to the nexus between the Veteran's tinnitus and his military service concluded that because there was no documentation that the Veteran complained of tinnitus during his time in the service, the tinnitus was less likely as not related to the Veteran's military service, to include in-service noise exposure.  Unfortunately, this opinion appears not to have considered the Veteran's statement at the April 2010 VA examination that his tinnitus onset "[d]uring the service after work hours."  Tinnitus is a disorder uniquely ascertainable by the senses, and lay assertions as to its existence and duration are especially probative.  See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002).  On remand, an additional VA examination must be conducted to reconcile the evidence of record, specifically this statement as to in-service onset as well as the Veteran's January 2010 statement that his tinnitus onset in approximately 2005 or 2006.

Finally, the Veteran asserted in his August 2010 substantive appeal that his "hypertension does impair [him] at work" (emphasis in original).  He also disputed the finding of the VA examiner, indicating in his July 2010 notice of disagreement that he was not able to climb stairs unless he took his time and rested periodically.  On remand, an opinion as to whether the Veteran is capable of gainful employment in light of his service-connected disabilities should be obtained.

Accordingly, the issues of entitlement to service connection for tinnitus, entitlement to an increased rating for hypertension, and entitlement to TDIU are REMANDED for the following actions:

1.  Provide the Veteran appropriate notice pursuant to the Veterans Claims Administration Act (VCAA) under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes the criteria required for TDIU claims.  

2.  After obtaining authorization from the Veteran, obtain all relevant, outstanding records from Dr. Fishenfeld relating to treatment of the Veteran's hypertension.  Additionally, obtain any outstanding VA treatment records relating to the Veteran's hypertension.  Document all attempts to secure this evidence in the claims file.  If the records cannot be obtained, the RO should notify the Veteran as to the unavailable records, and explain the efforts taken to obtain them.  Give the Veteran an opportunity to respond.

3.  The Veteran's claims file must then be returned to either the examiner who conducted the April 2010 VA audiological examination or another similarly qualified audiological specialist (if that examiner is unavailable).  The examiner is requested to review the claims file, including the Veteran's contentions as outlined above, and provide an opinion as to whether it is at least as likely as not that the Veteran's tinnitus is related to his military service, to his post-service employment, to both of these, or to neither of these.  All opinions must be supported by a complete rationale in a typewritten report.

4.  Afford the Veteran an appropriate VA examination, to be conducted, if possible, by a vocational specialist, to determine.  The claims folder should be made available and reviewed by the examiner and all appropriates tests should be conducted.  Thereafter, the examiner must opine as to whether it is at least as likely as not that he is unable to secure of follow a substantially gainful occupation as a result of his service-connected hypertension in light of his education, training and experience.  All findings and conclusions should be set forth in a legible report.

5.  After undertaking the development above, readjudicate the Veteran's claim.  If any benefit sought on appeal remains denied, provide a Supplemental Statement of the Case to the Veteran and his representative, and an appropriate period of time in which to respond.  Then, return the appeal to the Board.

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).

This claim must be afforded expeditious treatment.  All claims 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.


______________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs