Citation Nr: 1339685 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 11-03 689 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for cold injury residuals to the right foot, also claimed as frost bite. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active service from January 1975 to January 1976. This appeal comes to the Board of Veterans' Appeals (Board) from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In October 2012 the Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ) via video conference. A transcript of that hearing is associated with the claims file. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. The issue of entitlement to cold injury residuals of the right foot 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 FACTS 1. The evidence does not establish the Veteran currently has a hearing loss disability for VA purposes. 2. The evidence does not establish the Veteran's currently diagnosed tinnitus either began during or was otherwise caused by his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2013). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran is seeking service connection for bilateral hearing loss and tinnitus. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as sensioneural hearing loss, become manifest to a degree of 10 percent or more within one year after the date of separation from 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 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. As a threshold matter the Veteran testified that during his active service he worked in aircraft supply and was routinely exposed to very loud noises, including aircraft noise. The Board does not doubt that the Veteran was exposed to very loud noises during his active service. However, exposure to acoustic trauma during service alone is not sufficient to establish service connection, rather the evidence must establish the Veteran currently has hearing loss and tinnitus due to his acoustic trauma during service. Service treatment records were reviewed but fail to describe any complaints of hearing difficulty or symptoms of tinnitus during the Veteran's active service. In January 1976 audiometric testing was conducted in conjunction with the Veteran's separation physical. The relevant results are summarized in the chart below, with pure tone threshold recorded in decibels. HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 20 15 10 LEFT 10 10 15 10 10 Under VA regulations hearing impairment constitutes a disability for VA purposes when 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. The Court of Appeals for Veterans Claims (Court) has held that the "the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss." Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Therefore the results of this audiometric testing reflect the Veteran had normal hearing at his separation from active service. The claims file does not include any medical records reflecting the Veteran sought medical treatment for hearing loss or tinnitus at any point following active service. At his October 2012 hearing the Veteran did not provide a date these conditions began but instead testified he "always had" hearing loss and tinnitus. In April 2010 the Veteran was provided with a VA examination. The examiner reviewed the Veteran's claims file, including his work supplying aircraft equipment during active service. Regarding his claim for hearing loss, the Veteran reported his condition onset in 1977. Audiometric testing was conducted, and the relevant results are summarized in the chart below, with pure tone threshold recorded in decibels. HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 20 25 35 LEFT 20 25 25 25 30 The examiner also performed Maryland CNC word discrimination testing and the Veteran scored 98 percent in his right ear and 96 percent in his left ear. It is important for the Veteran to understand that the examiner opined the Veteran's had normal hearing bilaterally, providing evidence against this claim. Although the results from this audiometric testing reflect the Veteran had some degree of hearing loss, they do not reflect the Veteran had a "hearing loss disability" for VA purposes. None of the auditory thresholds at any of the frequencies was 40 decibels or greater, and the auditory threshold was only greater than 26 decibels for one frequency in each ear. Additionally the Veteran scored higher than 94 percent in each ear on the Maryland CNC speech recognition testing. Accordingly the Veteran's hearing loss does not meet the criteria for a hearing loss disability under VA regulations. 38 C.F.R. § 3.385. Regarding his claim for tinnitus in his April 2010 VA examination the Veteran reported hearing a ringing in his ears which lasted for "seconds" "a few days a month" in both ears. The Veteran stated he first noticed these noises in 2005, many years after service, providing evidence against his own claim. The examiner opined the Veteran's tinnitus was not related to his military noise exposure. He explained that the Veteran reported his symptoms onset in 2005, approximately 29 years after his separation from active service. Based on the foregoing the medical evidence does not establish the Veteran had a disabling hearing loss for VA purposes at any point during the period on appeal. Id. Because the evidence does not establish the Veteran currently has a hearing disability on which benefits could be granted, the criteria for service connection have not been met and his claim for service connection for bilateral hearing loss is denied. Although the evidence does establish the Veteran currently has tinnitus the evidence does not establish his tinnitus began during or was otherwise caused by his military service. No complaint of ringing in his ears or any other symptom of tinnitus was noted in service. Although in his hearing the Veteran reported he 'always had' ringing in his ears at his VA examination the Veteran reported the ringing in his ears began in 2005, nearly thirty years after his separation from military service. Therefore the evidence does not establish the Veteran's tinnitus began during or shortly after his active service. Finally, the VA examiner opined the Veteran's tinnitus was not otherwise related to his active service. The claims file does not include any additional evidence suggesting his tinnitus was related to his military service. Therefore no nexus is established and the Veteran's claim for service connection for tinnitus is denied. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in January 2010, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that 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). Service treatment records have been obtained, as have some private treatment records. The Board acknowledges the record includes some suggestion additional private records and social security records exist, as discussed below. However the claims file does not include any suggestion these additional records are related to the Veteran's hearing loss or tinnitus. During his hearing testimony the Veteran only indicated he received private treatment and social security benefits for his right foot condition. Moreover he specifically denied receiving any treatment for his hearing loss or tinnitus. See hearing transcript page 4. Accordingly the Board finds no additional duty to assist is required regarding the claims for hearing loss and tinnitus. The Veteran was also provided with a hearing before the undersigned VLJ via videoconference in October 2012. In Bryant v. Shinseki, the Court held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. 23 Vet. App. 488 (2010). They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the Board personal hearing, the VLJ fully explained the issues on appeal. The Veteran was assisted at the hearing by an accredited representative from the Texas Veterans Commission, and the VLJ and the representative asked questions regarding the nature and etiology of the Veteran's claimed hearing loss, tinnitus, and right foot condition specifically regarding any relation to his active service. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. The Veteran was also provided with a VA examination, the report of which has been associated with the claims file. The Board finds the VA examination was thorough and adequate and provides a sound basis upon which to base a decision with regard to the Veteran's claims. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disabilities. Furthermore, neither the Veteran nor his representative has voiced any issue with the adequacy of the examination. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Service connection for bilateral hearing loss and tinnitus is denied. REMAND The Veteran is also seeking service connection for residuals of a cold injury to his right foot. The Board finds remand is required for further development of this claim. The claims file includes an October 2012 letter from a private physician indicating the Veteran received treatment at the Quentin Mease Medicine Clinic in Houston, Texas, including treatment for his right foot. However treatment records from this clinic are not included in the claims file. Accordingly such records should be obtained on remand. During his October 2012 hearing the Veteran testified he receives social security disability and in conjunction with his application the social security doctor assessed his foot was frostbitten. Accordingly these records would be highly probative to the appeal at hand and should be obtained on remand. Finally, the Veteran has not yet been provided with a VA examination regarding his claim for service connection for his right foot. However the October 2012 letter from his private physician establishes the Veteran has a current right foot condition which may be related to his military service. Accordingly a VA examination should be provided upon remand. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. After obtaining the necessary authorization from the Veteran obtain records of all private medical treatment he received for his right foot condition, specifically including records from the Quentin Mease Medicine Clinic in Houston, Texas. All actions to obtain the requested records should be fully documented in the claims file, including any negative response. 2. Obtain any records from the Social Security Administration (SSA), to include any award of disability benefits and any underlying records used in reaching the determination. All efforts to obtain SSA records should be fully documented, and a negative response must be provided if records are not available. 3. After obtaining the above medical records and associating them with the claims file, provide the Veteran with a VA examination regarding his right foot condition. The examiner review the Veteran's full claims file and a complete rationale should be provided for any opinion expressed. Consistent with the factual and medical evidence the examiner should answer the following questions: a) Does the Veteran have any current right foot condition, to include residuals of a cold injury? b) For any indentified condition is it at least as likely as not (50 percent or greater) that the Veteran's current right foot condition either began during, or was otherwise caused by, his active service? 4. After completing all of the foregoing readjudicate the appeal in light of all the additional evidence added to the record. If the claims remain denied provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran 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. 2013). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs