Citation Nr: 1338767 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 06-18 065 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disabilities. 2. Entitlement to service connection for headaches. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from August 1972 to August 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The case was previously before the Board in October 2009 and July 2011, when it was remanded for additional development. The record before the Board consists of the Veteran's paper claims files and an electronic record known as Virtual VA. The issue of entitlement to service connection for headaches is addressed in the REMAND that follows the ORDER section of this decision. FINDING OF FACT No hearing loss disability of either ear was present until more than one year following the Veteran's discharge from service, and no current hearing loss disability is related to service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss disability are not met. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in letters sent in May 2004 and May 2007. Although the Veteran was not provided all required notice until after the initial adjudication of the claim, the Board finds that there is no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the receipt of all pertinent evidence, the originating agency readjudicated the claim. There is no indication or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). In addition, the duty to assist the Veteran has been satisfied in this case. VA has obtained the Veteran's service treatment records, VA treatment records, private medical treatment records, and records from the Social Security Administration (SSA). Neither the Veteran nor his representative has identified any outstanding, existing evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. The Veteran was provided a VA audiology examination in July 2010 to determine the etiology of his hearing loss. The examination report reflects that the examiner reviewed the Veteran's pertinent history, commented on specific evidence contained in the record, provided an opinion concerning the etiology of the Veteran's hearing loss and properly supported the opinion. Therefore, the Board has found the examination report and opinion to be adequate for adjudication purposes.. Accordingly, the Board will address the merits of the claim. II. Legal Criteria Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Where a Veteran served for at least 90 days during a period of war and manifests organic disease of the nervous system to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. III. Factual Background and Analysis The Veteran claims entitlement to service connection for hearing loss. His DD 214 confirms that he served in the Army from August 1972 to August 1974 as a field artillery crewman. He did not serve in combat; he served overseas in Germany. Based on the Veteran's documented military occupational specialty, the Board acknowledges that he was exposed to the noise associated with artillery weapons fire during service. Service treatment records do not reveal any complaint or diagnosis of hearing loss. Entry examination of the Veteran was conducted in April 1972; audiology testing was conducted and revealed normal hearing. Clinical evaluation of his ears and ear drums was negative for any abnormality on entry examination. In July 1974, separation examination of the Veteran was conducted. On the report of medical history he denied having any ear trouble or hearing loss. Clinical evaluation of the ears and ear drums again revealed normal findings. Audiology evaluation was conducted and pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 10 5 / 25 LEFT 10 5 20 / 30 In July 2004, a VA internal medical examination of the Veteran was conducted. Examination of the ears did not reveal any abnormalities. A large volume of VA medical treatment records dating from 1997 to the present have been obtained. Only a few records reveal complaints of hearing loss. A December 2005 VA audiology note reveals that evaluation was conducted for intermittent right ear popping and ringing along with subjective bilateral hearing loss. The Veteran reported a positive history of noise exposure/acoustic trauma, in service. Bilateral sensorineural hearing loss was found. Later treatment records documenting the Veteran's hearing loss is of record. A February 2009 primary care note indicates that the Veteran reported that his hearing loss had existed since his military service in the 1970s. He did not report a history of post-service occupational noise exposure. In July 2010, the Veteran was afforded a VA examination in response to his claim. The examiner printed the December 2005 audiology test results. The pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 30 55 55 LEFT 10 25 25 55 55 Speech audiometry revealed speech recognition ability of 80 percent in the right ear and 60 percent in the left ear. In July 2010 a VA audiology examination of the Veteran was conducted. The examiner reviewed the evidence of record with attention to the Veteran's service treatment records and the audiology reports contained therein. The examiner acknowledged that the Veteran's military specialty was as a field artillery crewman and that noise exposure during service was conceded. The examiner also indicated that the service treatment records showed normal hearing on entrance examination and slightly decreased hearing on separation examination. The examiner also printed the audiology test data from the December 2005 VA audiology note. The Veteran reported bilateral hearing loss and tinnitus and reported his military noise exposure history. He also reported a 10 year history of post-service noise exposure in the construction business, including the use of jackhammers during work; he stated that he used ear plugs "at times" during this work. Specifically, the history of tinnitus was reported to date back to the 1980s and he associated it with symptoms of migraine headaches which began at that time. He indicated that tinnitus symptoms resolved after a few months in the 1980s, but that right ear tinnitus symptoms had begun again in the last year. On audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 55 50 60 / / LEFT 60 55 70 / / Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 76percent in the left ear. Testing above the 2000 Hertz level could not be accurately conducted. The examiner stated that "the pure tone thresholds demonstrated a non-organic hearing loss and should not be used to assess disability. The pure tone averages were in poor agreement with the speech reception thresholds. The pure tone testing was discontinued due to the significant non-organic overlay." Clinical examination revealed essentially normal findings with respect to the Veteran's ears and acoustic reflexes. The examiner indicated that the "the Veteran was unable or unwilling to perform in behavioral testing with sufficient reliability to determine true auditory thresholds." The examiner's medical opinion was that the Veteran's current hearing loss was not caused or aggravated by noise exposure during active military duty. The examiner compared the entrance and separation examination audiogram data and noted that there were no significant changes in the right ear. There was a 20 decibel change in the left ear at the 2000 and 4000 Htz levels, but that the results did not reveal the presence of a hearing loss disability under VA regulations. The examiner also referred to a medial study which indicated that delayed onset of noise-induced hearing loss following noise exposure is extremely unlikely. The Veteran did experience acoustic trauma in the form of exposure to artillery weapons fire during active duty. The Veteran appears to have a current hearing loss disability under the criteria of 38 C.F.R. § 3.385, as evidenced by the December 2005 VA audiology results. However, there is no credible evidence linking the Veteran's current hearing loss to service. To the extent that the Veteran has reported having symptoms of hearing loss dating from service to the present, those reports lack credibility. He has in the past omitted pertinent facts, such as his history of post-service occupational noise exposure; he has failed to cooperate in accurately taking the audiology tests. Furthermore, a December 1997 VA psychiatric treatment note reveals that he reported serving in combat in Vietnam with all the attendant trappings such as booby traps in the jungle and hearing helicopter. Simply put, this is untrue. The evidence clearly establishes that the Veteran served in Germany and never served in Vietnam or in combat. All of these facts weigh heavily against the credibility of any accounts reported by the Veteran. The medical opinion of the VA examiner is that the Veteran's current hearing loss is not related to service or the noise exposure experienced therein. The examiner indicated that delayed onset of noise-induced hearing loss was unlikely and that any changes in the Veteran's hearing thresholds since those noted on the separation examination were not caused by the military noise exposure. In essence, the evidence of a link between the claimed hearing loss disability and service is limited to the Veteran's own statements which are not credible. Accordingly, the Board must conclude that service connection is not warranted for bilateral hearing loss disability. In reaching this decision the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. ORDER Service connection for bilateral hearing loss disability is denied. REMAND The Veteran's original claim for service connection in April 2004 merely indicated that the disability was "headaches." In July 2004, a VA examination of the Veteran was conducted. The examiner diagnosed tension headaches. No etiology opinion was expressed by the examining physician. The December 2004 rating decision denied service connection for migraine headaches reasoning, among other things, that there was no current diagnosis of migraine headaches. In his April 2005 notice of disagreement, the Veteran referred to having migraine headaches, as he also did in the May 2006 VA Form 9. Review of the medical evidence of record reveals that the Veteran has at times reported having migraine headaches while receiving evaluation or treatment for other disorders. At other times, a history of headaches is denied when medical history is being taken in conjunction with other treatment. In any event, the Board has determined that the July 2004 VA examination is not adequate for adjudication purposes because the examiner failed to provide an opinion addressing the etiology of the Veteran's tension headaches. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim. 2. Then, the Veteran should be afforded a VA examination by a physician with sufficient expertise determine the etiology of any headache disorder(s) present during the period of the claim. The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files must be made available to and reviewed by the examiner. Following the examination and the review of the Veteran's pertinent history, the examiner should state an opinion with respect to each, if any, headache disorder present during the period of the claim as to whether there is a 50 percent or better probability that the disorder is related to the Veteran's active service. The rationale for each opinion expressed must also be provided. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent, must be associated with the record if the Veteran fails to report for an examination. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause may have adverse effects on his claim. 4. The RO or the AMC should also undertake any other development it determines to be warranted. 5. Then, the RO or the AMC should readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the RO or the AMC should issue a supplemental statement of the case to the Veteran and his representative and afford them the requisite opportunity to respond. The case should then be returned to the Board, if in order, for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs