Citation Nr: 1337520 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 11-17 814 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from June 1943 to March 1946. This matter is on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (3) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Bilateral hearing loss and tinnitus were not shown in service or for many years thereafter, and are unrelated to active duty service. 2. It is at least as likely as not that the Veteran's low back disorder is attributable to active duty service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in or aggravated by service, and is not related to service. 38 U.S.C.A. §§ 1110, 5103(a), 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2013). 2. Tinnitus was not incurred in or aggravated by service, and is not related to service. 38 U.S.C.A. §§ 1110, 5103(a), 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2013). 3. The criteria for entitlement to service connection for a low back disorder have been met. 38 U.S.C.A. §§ 1110, 5103(a), 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) 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); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required, and none is found by the Board. See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Indeed, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in August 2009 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. It also provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a Veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). All necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained the Veteran's service treatment records and VA outpatient treatment records. Further, the Veteran submitted treatment records from a private facility as well as his own statements in support of his claim. A VA examination with respect to the Veteran's hearing loss claim was also obtained in September 2009. 38 C.F.R. § 3.159(c)(4) (2013). To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the VA examination obtained in this case is more than adequate, it is predicated on a full understanding of the Veteran's medical history, and provides a sufficient evidentiary basis for the claim to be adjudicated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2013). Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. 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). With regard to the Veteran's low back claim, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. Service Connection In this appeal, the Veteran is claiming entitlement to service connection for bilateral hearing loss, tinnitus and a low back disorder. The evidence indicates that he served on board USS St. Lo (CVE 63) when it was sunk by a kamikaze attack during the Battle of Leyte Gulf on October 25, 1944. He asserts that his bilateral hearing loss and tinnitus is at least partially due to the explosions on the ship during the battle, and that he has a low back disorder that resulted from an injury when he jumped into the water when abandoning ship. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). In some cases, a relationship between the present disability and the disease or injury incurred or aggravated during service may be established through a demonstration of continuity of symptomatology for certain specific chronic disorders. 38 C.F.R. § 3.303(b); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). 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. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). However, service-connection may be established under 38 C.F.R. § 3.303(b) only for disorders considered to be "chronic" under 38 C.F.R. § 3.309(a). As is relevant here, bilateral hearing loss and arthritis are considered a chronic diseases under 38 C.F.R. § 3.309(a), and may be service connected under 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection will also be presumed for these disorders if manifest to a compensable degree within one year after discharge from service. See 38 C.F.R. §§ 3.307, 3.309 (2013). As is relevant here, non-arthritic musculoskeletal disorders and tinnitus are not "chronic" disorders that may be service connected on this basis. Nevertheless, evidence of continuous symptoms since active duty is still a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a) (2013). Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater, when the auditory thresholds for at least three of the above 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 (2013). Finally, 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). Specifically, "[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). As an initial matter, given that Veteran's record of service indicates that he served on board USS St. Lo, there is no reason to doubt his statements that he was on board this ship when it sank during the Battle of Leyte Gulf. In such situations, VA shall accept lay evidence as sufficient proof for service-connection of any disease or injury alleged to have been incurred in or aggravated by during active service, so long as such lay evidence is consistent with the circumstances of such service. The Veteran's assertions may be rebutted only upon a showing of clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b) (West 2002). Therefore, the Board will accept as fact that he was exposed to acoustic trauma in service and experienced a low back injury when jumping into the water. Nevertheless, the Board first determines that service connection is not warranted for bilateral hearing loss and tinnitus. Although the fact that the Veteran was exposed to acoustic trauma while in service, the service treatment records do not indicate that this acoustic trauma led to any actual sensorineural hearing loss or tinnitus. While it is true that some scarring was observed on the left eardrum in November 1944, his hearing was normal on that occasion. Moreover, his hearing was observed to be normal at the time of his separation physical examination in March 1946. Tinnitus was not observed on any occasion during active duty. In fact, the post-service evidence does not reflect symptoms related to a hearing disorder until May 2009, although it was apparent on that occasion that his hearing impairment had preceded that date, since he was already wearing hearing aids. The first occasion where hearing loss for VA purposes was demonstrated was at the time of the Veteran's September 2009 VA examination. At that time, his hearing was measured at 60 dB at all frequencies in both ears. Even if the Board were to presume that hearing loss and tinnitus were clinically observed in May 2009, it should nevertheless be emphasized that this is approximately 63 years after he left service. As such, a continuity of symptoms is not shown based on the clinical evidence. Moreover, since sensorineural hearing loss was not shown to a compensable level within one year after service, service connection on a presumptive basis is not warranted. 38 C.F.R. §§ 3.307, 3.309 (2013). In addition to the documented post-service treatment records, the evidence includes the Veteran's statements asserting continuity of symptoms related to his hearing loss. The Board is required to assess the credibility and probative weight of all relevant evidence, including the credibility of the Veteran's statements. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007). In doing so, the Board may consider factors such as facial plausibility, bias, self interest, and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. at 511; see also Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); cf. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this regard, it is true that the Veteran is competent in some cases to self-diagnose some disorders despite his status as a lay person. Tinnitus is one such disorder. However, he is not competent to diagnose sensorineural hearing loss for VA purposes, as it may not be diagnosed by its unique and readily identifiable features, and thus requires a determination that is "medical in nature." See Jandreau, 492 F.3d at 1377, n.4. Regardless of the disorder in question, the Veteran's lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the Board determines that the Veteran's reported history of continued symptomatology related to hearing loss and tinnitus since active service, while competent, is nonetheless not credible. In making this determination, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). Specifically, the Veteran was examined in August 1947, only 17 months after leaving active duty, and his hearing was again observed to be normal, and there were no complaints of tinnitus. Indeed, the Veteran acknowledged at his VA examination in September 2009 that his tinnitus was not present until the "1970s to 1980s" and didn't begin to perceive hearing difficulties until the 1960s. Therefore, continuity is not established based on the clinical evidence of record or the Veteran's statements. Next, service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's hearing loss or tinnitus to active duty, despite his contentions to the contrary. Specifically the Board places significant value on the opinions of a VA examiner who evaluated the Veteran's symptoms in September 2009. On that occasion, the Veteran stated that he first noticed experiencing tinnitus in the 1950s, but that it was not present at the time of the examination. He also stated that he initially noticed his hearing loss symptoms in the 1960s, although he was not in a post-service occupation where significant noise exposure was expected. After a thorough audiological examination, the examiner diagnosed bilateral sensorineural hearing loss, but opined that it was less likely than not that his hearing loss was related to service. In providing this opinion, the examiner reflected that the first indication of hearing loss was not until 2006 and, although he was wearing hearing aids, they were only 9 years old. The Board finds that the examination was adequate for evaluation purposes. Specifically, the examiner reviewed the claims file, interviewed the Veteran, and conducted a physical examination. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. With regard to his tinnitus claim, the VA examiner did not provide an opinion as to whether this disorder was related to service, since tinnitus was not shown at the time of the examination. However, even if present, the Board notes that there is no clinical evidence to indicate that his tinnitus is related to active duty and no treating professional has suggested such a relationship. In considering these claims, the Board has also considered the statements made by the Veteran relating his hearing loss and tinnitus to his active service. "Lay 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." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, the Veteran is not competent to provide testimony regarding the etiology of his sensorineural hearing loss. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Because sensorineural hearing loss is not diagnosed by unique and readily identifiable features, it does not involve a simple identification that a layperson is competent to make. Therefore, the unsubstantiated statements regarding the claimed etiology of the Veteran's hearing loss are found to lack competency. Moreover, while the Veteran is competent to self-diagnose tinnitus, the Board has already determined that his statements regarding the relationship between this disorder and active duty as well as assertions of continuity of symptomatology are not consistent with the other evidence of record. As for the Veteran's low back disorder, the Board determines that this claim should be granted. Specifically, the evidence includes an opinion from a private physician from October 2009, who concluded that the Veteran's low back disorder was at least partially attributable to his jump into the water from the sinking ship. While this opinion is somewhat incomplete, there is no contrary evidence to rebut the physician's conclusions. It is true that the Veteran underwent a VA examination in February 2010 that was specifically directed toward this claim. However, the VA examiner stated that she was unable state whether the Veteran's low back disorder was related to active duty service without resorting to speculation. Such statements do not weigh in favor of or against entitlement to service connection. See generally Jones v. Shinseki, 23 Vet. App. 382, 389-90 (2010). Despite such conclusion, the VA examiner still acknowledged that the private opinion was "a reasonable assumption." Therefore, the evidence of record is at least in equipoise as to whether the Veteran has a low back disability related to service. In light of the above discussion, the Board concludes that the preponderance of the evidence against the claims for service connection for bilateral hearing loss and tinnitus and there is no doubt to be otherwise resolved. However, the evidence of record supports entitlement to service connection for a low back disorder. The appeal is granted to this extent. ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. Service connection for a low back disorder is granted. ______________________________________________ Lesley A. Rein Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs