Citation Nr: 1337076 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 09-11 339 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to an increased rating for degenerative arthritis, status post fracture deformity of the left distal humerus, currently rated 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran, sister ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran had active service from January 1969 to January 1971. These claims come before the Board of Veterans' Appeals (Board) on appeal of March 2008 and September 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Offices (ROs) in San Juan, Puerto Rico and Louisville, Kentucky. They were remanded in January 2011 for further development. The Veteran presented testimony before the undersigned at a hearing at the RO in September 2010. A transcript of the hearing is associated with the claims folder. At his hearing, the Veteran made statements that are construed as raising a claim for service connection for a disability manifested by a loss of balance. In correspondence dated in June 2013 the Veteran raised a claim for service connection for PTSD. These issues have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issue of entitlement to an increased rating for degenerative arthritis, status post fracture deformity of the left distal humerus is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Current tinnitus was not manifested during the Veteran's active duty service or for many years after service, nor is it otherwise related to service. CONCLUSION OF LAW Tinnitus was not incurred in or aggravated by the Veteran's active duty service, nor may it be presumed to have been incurred in or aggravated by such service. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In a July 2008 letter, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013) and 38 C.F.R. § 3.159(b) (2013). The RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the he was expected to provide. The Veteran was informed of the process by which initial disability ratings and effective dates are assigned, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The "duty to assist" contemplates that VA will help a claimant obtain records relevant to the claim and provide a medical examination when necessary to make a decision on the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2013). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013). Relevant service treatment and other medical records have been associated with the claims file. The Veteran was given a VA examination in February 2011, which is fully adequate. It included a review of the claims file and a rationale based on the evidence and the history provided by the Veteran. The duties to notify and to assist have been met. Further regarding the duty to assist, the United States Court of Appeals for Veterans Claims (Court) has held that that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in 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). The Board remand was to afford the Veteran a VA examination. There was substantial compliance with the remand instruction in that he was afforded an examination. The examiner provided an opinion that was definitive and supported by reasons and bases based on an accurate record. Although the examiner did not discuss reports of continuity of symptomatology, the Veteran did not report continuity of symptomatology at the time of the examination, and the Board, as explained below, has found the reports of continuity to lack credibility. The opinion was adequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). At his hearing, the undersigned identified the issue, sought information as to treatment to determine whether all relevant records had been obtained. Ultimately the claim was remanded for a new examination. The Board thereby met the duties imposed by 38 C.F.R. § 3.103(c)(2) as interpreted in Bryant. Service Connection Service connection will be granted for disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as tinnitus as an organic disease of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112(a); 38 C.F.R. §§ 3.307, 3.309. Service connection may also 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). At the Veteran's September 2010 Board hearing, he testified that the ringing in his ears began when he was in service. He testified that he was a heavy wheel mechanic and that he had to help tank drivers and personnel carriers qualify their vehicles on the range. He stated that he was exposed to extremely loud noises. He stated that when he was discharged from service, he reported that he had some type of hearing problem in one ear. He testified that he currently experienced constant ringing in both ears. The service treatment records contain no findings pertaining to hearing loss or tinnitus. Auditory threshold levels at induction at frequencies of 500, 1000, 2000, 3000, and 4000 hertz were 5, 10, 5, 5, and 5 in the right ear, and 10, 15, 15, 15, and 10 in the left ear. Upon separation from service, they were 10, 0, 0, 0, and 0 in the right ear, and 10, 5, 10, 10, and 0 in the left ear. The first contemporaneous evidence of any ear problem is a VA outpatient treatment report dated in October 2003 (32 years after service). The Veteran complained of an inability to hear out of his left ear. He was assessed with cerumen impaction. There was no mention of tinnitus. A December 2003 outpatient treatment report reflects that the Veteran underwent a hearing evaluation. He reported constant, bilateral tinnitus. He reported a history of loud noise exposure during service; and he reported that after service, he worked in a "noise factory" for 33 years. The examiner found that his functional hearing was good. In October 2007, the Veteran wrote that he was frequently exposed to noise while in service. He also stated that "At no time was I issued hearing protection." The Veteran underwent a VA examination in December 2007. The examiner reviewed the claims file in conjunction with the examination. She noted that hearing levels were within normal limits at induction and separation from service. The Veteran reported being exposed to loud noises from tank engines, truck engines, tank fire, and howitzers. After leaving service, he worked in a factory, in the O-ring division, for 31 years until he retired. He reported some recreational noise exposure in the form of power tools and tractors. He stated that the onset of tinnitus was at least 10 years earlier. On examination, the Veteran's hearing was within normal limits from 250 Hz to 4000 Hz, with mild sensorineural hearing loss at 8000 Hz bilaterally. The examiner opined that it was less likely than not that the Veteran's tinnitus was caused by or the result of loud noise exposure in service. Her rationale was that the Veteran reported that tinnitus began at least 10 years earlier (earlier that 1997), he was discharged 36 years prior to the examination, and he worked in a factory for 31 years following service. The claims file was sent to another VA examiner for a review and opinion in September 2008. The examiner noted that the hearing evaluations of December 2003 and December 2007 showed normal hearing through 4000 Hz, with very mild loss between 6000 Hz and 8000 Hz. The examiner erroneously noted that tinnitus began 10 years prior to the December 2007 examination (when in fact the Veteran reported that it began at least 10 years prior to the December 2007 examination). The examiner noted a long history of noise exposure following service. Consequently, the examiner found that the Veteran's tinnitus was less likely than not caused by or a result of in-service noise exposure. A December 2008 outpatient treatment report reflects that the Veteran reported exposure to loud noises while in service. He also reported exposure to loud noises for six months after service. He denied having hearing protection at that time. The Veteran underwent another VA examination in February 2011. The examiner reviewed the claims file in conjunction with the examination. The Veteran once again reported that while in service, he had to drive officers to the tank ranges during training exercises. He stated that hearing protection was utilized. He again stated that as a civilian, he had worked in a factory for 33 years where he had some exposure to machinery noise. He maintained that the noise levels were minimal in the area where he worked. The use of hearing protection was not required or utilized. He denied recreational noise exposure other than seasonal use of lawn care equipment. He reported that his ears frequently became filled with wax; and that this has been a problem since he was discharged from service. The Veteran reported that tinnitus began 15-20 years prior to the examination. He did not recall a specific date or circumstances. Upon examination, the Veteran had normal hearing in his left ear through 8000 Hz. He had normal hearing in his right ear through 3000 Hz. He had mild sensorineural hearing loss in his right ear from 4000-8000 Hz. The examiner opined that tinnitus was at least as likely as not a symptom associated with hearing loss. The examiner noted that the service treatment records showed no complaints of hearing loss, and both the induction examination and separation examination reflect normal hearing. She found that "the medical evidence strongly suggested that he Veteran's hearing was not damaged while he served in the Army." She stated that tinnitus is most commonly a symptom of hearing loss. She noted that he was discharged from service 40 years ago. She opined that given the amount of time that has passed since service, and the absence of evidence indicating that hearing loss developed or worsened during service, it would be difficult to establish a causal relationship between the current complaints of tinnitus and military noise exposure. She ultimately opined that tinnitus is less likely as not caused by or the result of military noise exposure. Analysis In order to establish service connection for the claimed disorder, there must be evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Veteran has established the first of these elements. He has provided competent testimony that he experiences ringing in his ears and he has been diagnosed as having tinnitus. The Veteran has also provided competent testimony that he was exposed to noise in service and such exposure is consistent with the circumstances of his service. 38 U.S.C.A. § 1154(a). His reports of in-service noise exposure are deemed credible. Hence, an in-service injury is established. The Veteran is also competent to report, as he has at times, that there was a continuity of tinnitus symptoms since service. 38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms, which are within the realm of one's personal knowledge). Although the Veteran is competent to describe his symptoms, his competency does not necessarily make the testimony credible. His statements regarding the onset of tinnitus have been in conflict with each other. He has variously reported that tinnitus began at least 10 years prior to a December 2007 examination; 15-20 years prior to the 2011 examination, but could not recall a specific date or set of circumstances; and he testified that tinnitus began during service. This is not the only time the Veteran's statements are in conflict. In an October 2007 statement, the Veteran stated that while he was in service, "At no time was I issued hearing protection." However, at his February 2011 examination, he stated that during service, hearing protection was utilized. The Veteran's statements regarding post-service noise exposure are also in conflict. The December 2003 outpatient treatment report reflects that he said he worked in a "noise factory" for 33 years. The December 2008 outpatient treatment report reflects that he reported exposure to loud noises for six months post service; and at his February 2011 examination, he indicated there was minimal noise exposure at the factory; and that hearing protection was not required or utilized. The contemporaneous evidence contains no indications of a continuity of tinnitus beginning in service. Tinnitus was not reported on the examination for service separation, or on the Veteran's initial claim for VA benefits received in January 2003. In June 2003, the Veteran was seen by a private physician to establish care. His medical history was recorded, but it did not include tinnitus. At his first reported treatment for an ear problem in October 2003, no history of tinnitus was recorded. In September 2007, he claimed entitlement to service connection for hearing loss, but did not mention tinnitus or ringing in his ears. Given this record, the Board must conclude that the reports of continuity of symptomatology are not credible and that the record does not otherwise show such continuity. The medical opinions in this case are also against a link between current tinnitus and service. There is no other competent and credible evidence linking tinnitus to service. In the representative's October 2013 Brief, he argued that the Veteran's service separation examination was inadequate because it did not include a Maryland CNC word recognition test accompanying the audiological findings. This would; however, be irrelevant to the question of whether the Veteran had tinnitus when he exited service. The Maryland CNC scores could have helped in showing whether the Veteran had hearing loss for VA purposes, but no history of hearing loss was recorded and VA examiners had interpreted the separation examination as not showing hearing loss. It does not render an examination wholly inadequate for determining if the Veteran suffered a decrease in hearing during service. Furthermore, at his December 2007 VA examination, the Veteran scored 96 percent bilaterally. At his February 2011 VA examination, he scored 100 percent bilaterally. There is no evidence to suggest that a Maryland CNC test taken in 1971 would have revealed hearing loss in service. Ultimately the preponderance of the evidence is against this claim, reasonable doubt does not arise, and the claim for service connection for tinnitus must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). ORDER Entitlement to service connection for tinnitus is denied. REMAND The Veteran underwent a VA examination for his left elbow disability in February 2011. The examiner noted objective evidence of pain with range of motion testing and on repetitive testing, but did not state whether there was additional limitation of motion due to the pain. The Board is required to insure that examination reports include such information. Mitchell v. Shinseki, 25 Vet App 32 (2011). Accordingly, the case is REMANDED for the following action: 1. Arrange for the Veteran to undergo a VA examination to evaluate the residuals of his left distal humerus fracture. The examiner should confirm that the claims folder was reviewed. The examiner should also: a) Note all current disability from the humerus fracture; b) Report the range of motion of the left arm; c) The examiner should determine whether the left humerus disability is manifested by weakened movement, excess fatigability, incoordination, pain or flare-ups. Such inquiry should not be limited to muscles or nerves. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, pain or flare-ups. d) Identify any neurological deficit that results from the left arm disability, including numbness, sensory loss, loss of motor strength, or painful nerves; e) Describe how the Veteran's left arm disability affects his employability f) Provide reasons for the opinions expressed. 2. If the appeal is not fully granted, issue a supplemental statement of the case, and return the record to the Board, if otherwise in order. The appellant 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). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs