Citation Nr: 1338411	
Decision Date: 11/22/13    Archive Date: 12/06/13

DOCKET NO.  10-22 159	)	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 right hip and leg disability, to include as secondary to a service-connected disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Jonathan Tracy, Associate Counsel

INTRODUCTION

The Veteran served on active duty from October 1972 to October 1975. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.

The issue of service connection for a right hip and leg disability, to include as secondary to a service-connected disability, 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.


FINDINGS OF FACT

1.  Bilateral hearing loss was not manifested during the Veteran's active duty service or for many years thereafter, and is not otherwise related to such service.

2.  Chronic tinnitus was not manifested during the Veteran's active duty service or for many years thereafter, and is not otherwise related to such service.


CONCLUSIONS OF LAW

1.  The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1110, 1112, 1154, 3103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2013).

2.  The criteria for service connection for tinnitus have not been met.  38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  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, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The notice must inform the claimant of any information and 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.  Notice should be provided to the claimant before the initial unfavorable adjudication of the claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In addition, the notice requirement applies to all five elements of a service-connection claim, including: (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.  See Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The RO provided notice by letter in August 2009.  The content of the notice letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).  With respect to the Dingess requirements, notice included 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.

VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).

In this instance, the claims file contains the Veteran's service treatment records, VA treatment records, and the Veteran's own assertions in support of his claim.  The Board has reviewed the file for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a duty to obtain; therefore appellate review may proceed without prejudicing him.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The Board has also reviewed records on Virtual VA and the Veterans Benefits Management System (VBMS).

The Veteran was afforded a VA examination in November 2009.  The Board finds that the VA examination was adequate as the examiner reviewed the claims folder, considered the Veteran's history and the examination results, and provided rationales for the opinions offered.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). 

Hence, no further notice or assistance to the appellant is required.  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).

II.  Service Connection Criteria

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; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995).  Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

For some "chronic diseases," presumptive service connection is available.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  

For the showing of a 'chronic disease' in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  38 C.F.R. § 3.303(b).  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  Id.  If not manifest during service, where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 C.F.R. § 3.307.  The term "chronic disease", whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. Feb. 21, 2013).  

Organic diseases of the nervous system are included in 38 C.F.R. § 3.309(a).  Sensorineural hearing loss is included in 38 C.F.R. § 3.309(a) as an organic disease of the nervous system.  The absence of evidence of hearing loss in service is not a bar to service connection for hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 160 (1993).

For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability 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.

In each case where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a).

In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits.  Medical evidence of a current disability and nexus is not always required to establish service connection.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  The Board acknowledges that lay testimony is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness.  Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).  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.  38 C.F.R. § 3.159(a)(2).  

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises.  It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  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.  See Rucker v. Brown, 10 Vet. App. 67, 74 (1997).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.  38 U.S.C.A. § 5107(b).

III.  Analysis

A.  Hearing Loss

The Veteran asserts that his hearing loss is related to his time in service when he served as a security policeman and worked on both the flight line and guarded Minutemen missile silos.  He claimed that he was required to fire small arms without the aid of hearing protection.  Additionally, he claims that his patrols along the flight line exposed him to loud noises.  He claims that these noises left his ears ringing and buzzing for hours until his hearing would return to "somewhat normal."  The RO conceded that the Veteran experienced acoustic trauma in service.  

The Veteran underwent an audiometric examination upon entering service in August 1962.  The results indicated that the Veteran did not have any hearing loss when he entered service.  There are no service treatment records showing complaints, treatment, or diagnosis of any hearing related problems during service.  The Veteran underwent another audiometric evaluation at his separation examination in July 1975.  The examination resulted in pure tone thresholds, in decibels, as follows:




HERTZ



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

These results show that the Veteran had normal hearing at the time of his separation.

Following his separation from service, there are no medical records in the claims file dated before 1995.  The VA treatment records were negative of any mention of any hearing problem until April 2009.  In June 2009, the Veteran underwent an audiometric evaluation at Columbia VA Medical Center (VAMC).  The results were:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
10
20
25
LEFT
5
5
15
35
50

The impression that the treating physician offered was moderate hearing loss in the right ear and mild to moderate hearing loss in the left ear.  The report noted "excellent speech recognition bilaterally."  The Veteran was then fitted for hearing aids.  However, there is no discussion of the etiology of the Veteran's hearing loss.

The Veteran underwent a VA examination in November 2009.  The examination reflects that the Veteran's bilateral hearing loss currently meets the regulatory thresholds to be considered disabling.  Upon examination, pure tone thresholds, in decibels, were as follows:







HERTZ



500
1000
2000
3000
4000
RIGHT
20
10
25
30
50
LEFT
15
15
25
40
50

The Veteran's right ear speech recognition score was 90 and his left ear speech recognition was 88.  The examiner diagnosed the right ear with sensorineural hearing loss with a mild degree of loss.  The left ear was diagnosed with sensorineural hearing loss with a moderate degree of loss.

The Veteran told the examiner that after he was discharged, he had difficulty understanding people and would misunderstand what was said.  The examiner determined that quantifying the Veteran's post-service noise exposure is difficult.  After service, the Veteran worked as a bartender and bouncer from 1975 to 1989.  In 1989, he started work at an asbestos abatement company.  He worked as a maintenance supervisor from 1997-2004 and 2005-2008.  Between 2004 and 2005 he worked as a carpenter.  The Veteran denies using firearms after service.  He claims that the only other potential noise hazards were limited to lawn and garden equipment.

The examiner opined that "it is less likely as not that the Veteran acquired a hearing impairment while serving on active duty."  The examiner further opined that it is more likely as not that the Veteran's current hearing impairment was "acquired after service possibly due to genetic factors or occupational exposures."  The rationale for the examiner's opinion was that the Veteran had normal pure tone thresholds at discharge, there was no evidence of hearing impairment in the service medical records, and there were no complaints in the treatment records until 2009.

The Board also considered the lay evidence of record.  As discussed above, lay evidence is competent to report symptoms because this requires only personal knowledge as it comes to him or her through his or her senses.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  However, lay evidence is not competent to provide a medical diagnosis and medical nexus opinion.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).   The Veteran has asserted that his hearing loss began during service.  His statements describing his symptoms are considered to be competent evidence.  King v. Shinseki, 700 F .3d 1339, 1344 (Fed.Cir.2012) (quoting Buchanan v. Nicholson, 451 F.3d 1331,1335 (Fed.Cir.2006)).  These statements, however, must be viewed in conjunction with the medical evidence.  As the VA examiner pointed out, there is no indication that the Veteran sought medical treatment for a hearing problem until 2009, over 30 years after service.

There is no competent evidence of record which provides a link between the Veteran's active duty service and hearing loss.  The only competent medical opinion weighs against the claim.  After thorough review of the evidence currently of record, the preponderance of the evidence is against the Veteran's claim of service connection for bilateral hearing loss.

B.  Tinnitus

As with hearing loss, there is no complaint, diagnosis, or treatment for tinnitus in service.  After separation from service, there is no indication of tinnitus until the Veteran sought VA treatment in 2009, decades after separation from service.  At the June 2009 audiometric evaluation done at Columbia VAMC, the Veteran complained of tinnitus.  However, no details of the onset and duration were provided in that report.  

The same assertions associated with the Veteran's claim for service connection for hearing loss apply to his claim for tinnitus.  Additionally, he asserted that he noticed ringing and buzzing in his ear during his time in service.  He claims that the ringing is constant and is a high-pitched whine.  He claims that he must sleep with a fan in order to drown out the ringing.  

A claimant is competent in some cases to diagnose some disabilities despite his status as a lay person.  Tinnitus is one such example as it is observable with the sense.  As a layman, however, his opinion alone is not sufficient upon which to base a determination as to a relationship between service and current disability.  Rather, the Board must weigh and assess the competence and credibility of all of the evidence of record.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); and Barr v. Nicholson, 21 Vet. App. 303 (2007).

At the VA examination in November 2009, the examiner opined that it is less likely as not that the Veteran acquired tinnitus during military service.  The examiner opined that tinnitus was more likely as not acquired after service possibly due to genetic factors or occupational exposure.  The rationale offered by the examiner was that there was no evidence of tinnitus in the service treatment records and no evidence of tinnitus in the medical records until 2009.  The examiner also noted that there is no documentation of sleep problems as secondary to tinnitus in the treatment records.  The examiner concluded that the "current complaint of tinnitus is more likely as not to have developed with the onset of the hearing impairment after service.  The evidence of record is that the current hearing impairment was acquired sometime after service.  Genetic, general health, and occupational factors are the most likely [factors] contributing to the current impairment."

The only competent medical opinion weighs against the claim.  In weighing the medical opinion and the Veteran's assertions, the Board grants greater probative weight to the competent medical opinion.  The more than thirty years between the Veteran's service and his first complaint of tinnitus detract from the credibility of his claim.  Based on the competent medical evidence, entitlement to service connection for tinnitus is denied.


ORDER

1.  Entitlement to service connection for bilateral hearing loss is denied.

2.  Entitlement to service connection for tinnitus is denied.




REMAND

Regarding the claim for service connection for a right hip and leg condition, claimed as secondary to the Veteran's service-connected osteoarthritis of the left ankle, the issue is remanded for an addendum medical opinion.  At the October 2009 VA examination, which contains a medical opinion on the etiology of the Veteran's current right hip and leg condition, the VA examiner failed to address the question of whether the Veteran's service-connected disability aggravated any right hip and leg condition.  

Accordingly, the case is REMANDED for the following action:

1.  After securing any additional evidence, the RO must secure a VA addendum opinion from the October 2009 VA joints examiner.  If the October 2009 VA examiner is no longer available, another qualified VA clinician must provide the addendum opinion.  The purpose of this opinion is to determine whether any current right hip and leg disorder was aggravated by service-connected osteoarthritis of the left ankle (previously rated as residuals to a left ankle fracture).  A clear rationale for the opinion would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  The claims folder must be made available for review. 

The October 2009 VA examiner, or other qualified VA clinician, must provide an addendum medical opinion answering the following question: 

Is it at least as likely as not (i.e., 50 percent or more probable) that a right hip and leg condition is chronically aggravated or worsened by service-connected osteoarthritis of the left ankle (previously rated as residuals to a left ankle fracture), regardless of the date of onset of either disorder?  If and only if the examiner believes that there is chronic aggravation or worsening of a right hip and leg condition by service-connected osteoarthritis of the left ankle, the examiner should also provide a medical opinion as to the degree of identifiable increased disability that has been produced by the aggravation.  If the degree of increased disability cannot be quantified, the examiner should so indicate.

The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression

If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for an examination.  If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made.  

The term "at least as likely as not" does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 

2.  After completing the above action, the claim must be readjudicated.  If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative.  After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

The appellant has the right to submit additional evidence and argument on the matter 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).



____________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs