Citation Nr: 1340294 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 10-20 563 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for a tinnitus. 3. Entitlement to an increased evaluation for chronic cervical strain with herniated disc C2-C3 status-post surgical fusion with associated pain and numbness of the upper extremities, evaluated as 20 percent disabling prior to March 6, 2009; 30 percent from March 6, 2009, to March 17, 2009; 100 percent from March 18, 2009, to June 30, 2009; and 30 percent thereafter. 4. Entitlement to an increased evaluation for anxiety disorder with posttraumatic stress disorder (PTSD) features, initially evaluated as 30 percent disabling prior to January 14, 2010, and 50 percent thereafter. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 5, 1983, to August 12, 1983, November 1990 to June 1991, and August 8, 1992, to August 22, 1992. This case comes before the Board of Veterans' Appeals (the Board) on appeal from various rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In a January 2009 rating decision, the RO denied service connection for a bilateral hearing loss disability and tinnitus, and continued a 20 percent disability evaluation for the cervical spine disability. Then in a September 2009 rating decision, the RO granted service connection for an anxiety disorder with PTSD features and assigned a 30 percent evaluation effective April 8, 2009. Additionally, in that rating decision, the RO addressed the cervical spine assigning a 30 percent evaluation effective March 6, 2009; a temporary 100 percent evaluation from March 18, 2009, to June 30, 2009; and a 30 percent evaluation thereafter. Subsequently, in an April 2010 rating decision, the RO, in part, increased the disability evaluation for the anxiety disorder with PTSD features to 50 percent disabling effective January 14, 2010. Since the RO did not assign the maximum disability ratings possible (outside of the temporary 100 percent evaluation for the cervical spine disability), the appeals for higher disability evaluations remain before the Board. AB v. Brown, 6 Vet. App. 35 (1993) (noting that where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit does not abrogate the pending appeal). Additionally, in the April 2010 rating decision, the RO granted a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). Neither the Veteran nor his representative have expressed disagreement with the effective date assigned. Therefore, this issue is not before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009), (holding that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record). In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The Board has reviewed the documents in both the paper claims file and the electronic claims file. The issues of increased evaluations for chronic cervical strain with herniated disc C2-C3 status-post surgical fusion with associated pain and numbness of the upper extremities, and anxiety disorder with PTSD features are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran does not have a bilateral hearing loss disability for VA compensation purposes. 2. Tinnitus is not related to active service. CONCLUSIONS OF LAW 1. A bilateral hearing loss disability was not incurred in or aggravated by active service, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013). 2. Tinnitus was not incurred in or aggravated by active service,. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In correspondence dated in July 2008, prior to the January 2009 rating decision, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2013). Specifically, the RO notified the Veteran of information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The July 2008 letter also notified the Veteran of the process by which initial disability ratings and effective dates are established as set forth in Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013). All identified and available treatment records have been secured. As the Board will discuss in detail in the analysis below, the Veteran was provided a VA audiological examination in November 2008 and an addendum report was also rendered in April 2009. A review of the VA examination reports reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate evaluation of the Veteran, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. The Board concludes that the examination reports of record are adequate for purposes of rendering a decision in the instant appeal. See 38 CF.R. § 4.2 (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c) (4) (2013); Barr, 21 Vet. App. at 312 The Veteran has declined to present testimony before a Veterans Law Judge. Thus, the duties to notify and assist have been met. Bilateral Hearing Loss Disability The Veteran essentially contends that he has a current bilateral hearing loss disability related to acoustic trauma during service. In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; 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 (2013). Sensorineural hearing loss disability may be presumed to have been incurred in service if shown to have manifested to a compensable degree within one year after the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). However, this presumption does not apply as discussed below. In order to show 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2013). A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With respect to Hickson element (1), current disability, the Veteran was afforded a VA audiological examination in November 2008, the report of which noted the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 LEFT 10 10 5 10 15 RIGHT 10 5 10 10 10 Speech recognition was 96 percent bilaterally. The examiner noted that both ears were well within normal limits from 250 hertz to 8k hertz, and were not affected by his periods of service. The Board finds that based on the evidence of record that the Veteran does not currently have a bilateral hearing loss disability for VA compensation purposes. The only relevant evidence of record is the November 2008 VA examination report and as outlined above there is no indication that the Veteran has auditory thresholds of 40 decibels or greater or 26 decibels or greater for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz; or speech recognition scores less than 94 percent. 38 C.F.R. § 3.385 (2013). Although a January 2010 VA general examination report showed a diagnosis of hearing loss, that diagnosis was based solely on the Veteran's complaints. No audiological evaluations were conducted, and there were no other notations related to hearing loss other than the Veteran's subjective reports. Therefore, the Board affords the January 2010 VA examination report little probative weight and finds that the objective evidence of record reflects that the Veteran does not have hearing loss for VA compensation purposes as demonstrated by the comprehensive November 2008 audiological evaluation. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, service connection for a bilateral hearing loss disability is not warranted. The Veteran, as a lay person, is competent to note what he experiences, including decreased hearing acuity. See Layno v. Brown, 6 Vet. App. 465, 467-69 (1994) (finding that the Veteran as a lay person is competent to report information of which he has personal knowledge, i.e., information that he can gather through his senses). Furthermore, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, in this case, the question as to whether the specific degree of the Veteran's hearing loss meets the criteria for hearing loss for VA compensation purposes is a complex medical question unlike testimony as to his experiencing the symptoms of decreased hearing generally. Likewise, it is different from a separated shoulder, varicose veins, or flat feet, which are capable of direct lay observation. See Jandreau, 492 F.3d at 1376 (noting that a lay witness is capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308-09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (discussing that unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. at 405 (finding that a lay person is competent to testify to pain and visible flatness of his feet). That is, appropriate expertise is required to determine whether the Veteran's hearing acuity is impaired to the level of a hearing loss disability under VA regulations. In the present case, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render audiological findings. See 38 C.F.R. § 3.159 (a)(1) (2013) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he experiences, he is not competent to ascertain his level of hearing loss as such is not readily subject to lay observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). In this circumstance, the Board gives more weight to the November 2008 VA audiological testing results rendered by a trained medical professional. While the Board does not doubt that the Veteran perceives less than normal hearing, it is bound by the laws in effect, which require hearing loss to be of a particular severity before it is considered a disability for compensation purposes. That level of severity has not been reached in this case. As such, the preponderance of the evidence is against the Veteran's claim; therefore, the benefit of the doubt provision does not apply. Service connection for a bilateral hearing loss disability is not warranted. Tinnitus The Veteran essentially contends that he has tinnitus related to service. The record shows complaints and diagnoses of tinnitus throughout the record. Hickson element (1) is accordingly met. With respect to element (2), in-service disease or injury, the Board will separately discuss disease and injury. Service treatment records are negative for any complaints or findings of tinnitus. Therefore, Hickson element (2) is not met with respect to disease. Turning to in-service injury, the Board observes that the Veteran has asserted that he sustained acoustic trauma during service in Dessert Strom from November 1990 to June 1991. He has indicated that he was exposed to weapons fire, and tank and vehicle noise. The Board notes that the Veteran is competent to give evidence about what he experienced, and acoustic trauma and tinnitus are subject to lay observation. See e.g., Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). The Board finds that the Veteran was exposed to hazardous noise during service. Therefore, Hickson element (2) is satisfied. With respect to crucial Hickson element (3), nexus, the only pertinent medical evidence in this case is an April 2009 VA addendum opinion. Following evaluation and interview of the Veteran in November 2008, the VA examiner reviewed the claims folder and rendered the addendum report in April 2009. In so doing, the examiner opined that the Veteran's tinnitus was not caused by or the result of his periods of active duty. The examiner noted that there were no reports, complaints, annotation, or diagnoses of tinnitus in the service treatment records. Notably, the examiner indicated that the Veteran denied having ear, nose, or throat problems at service discharge. The Board finds the VA examination report to be highly probative, as it was based on a thorough review of the Veteran's medical records. The opinion is also supported by rationale supported by the record. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.). Furthermore, the opinion was obtained from a licensed medical professional rather than a lay person. To the extent that the Veteran has offered lay statements as to his belief that his tinnitus started in service, and is consequently related to his noise exposure in service, there is no dispute that the Veteran is competent to report events that occurred in service, and to describe symptoms of tinnitus because this requires only personal knowledge as it comes to him through his senses. See Layno v. Brown, supra at 470. However, while competent, the Board finds that the testimony is not credible. As detailed in the examination report, there were no complaints of tinnitus during service. The Board is cognizant that lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, this is not a case in which the Veteran's service treatment records are merely silent on the matter under consideration. Rather, the record reflects that he denied any symptomatology at separation in 1991, the period of service which he reported he experienced symptoms. Furthermore, the Board has considered the multi-year gap between discharge from active duty service (in 1991 from Dessert Storm, and in 1992 from his last period of active service) and initial documented evidence of complaints when the Veteran filed for service connection in 2008, 16 years after separation from his period of active service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (indicating that "evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the [V]eteran's health and medical treatment during and after military service, as evidence of whether a pre-existing condition was aggravated by military service"). The Board finds the Veteran's denial of symptoms at discharge, which were made prior to the filing of a compensation claim, to be far more credible than statements offered by the Veteran after filing such a claim. There is simply no evidence, other than statements from the Veteran, to support the assertion that he has had tinnitus since service. See e.g. Madden v. Gober, 125 F.3d 1477, 1481 (1997) (finding that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Pond v. West, 12 Vet. App. 341 (1999) (noting that although Board must take into consideration a Veteran's statements, it may consider whether self-interest may be a factor in making such statements). In short, the Board finds that the VA examiner's opinion ultimately outweighs the Veteran's contentions as to etiology. See id.; see also Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that the Veteran suffered a particular illness (bronchial asthma) was not competent evidence because matter required medical expertise). Therefore, Hickson element (3), nexus, has not been satisfied, and the claim fails on this basis. In summary, tinnitus was not noted until many years after service, and no medical professional has ever otherwise linked the Veteran's current tinnitus to service, and in fact, there is medical evidence to the contrary. In light of the evidence, the Board concludes that the preponderance of the evidence is against the claim, and that service connection for tinnitus is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claims must be denied. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). ORDER Service connection for a bilateral hearing loss disability is denied. Service connection for a tinnitus is denied. REMAND VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion only when it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A (d) (West 2002); 38 C.F.R. § 3.159(c) (4) (2013). See also Robinette v. Brown, 8 Vet. App. 69, 76 (1995). The Veteran was last evaluated for his service-connected cervical spine disorder in January 2010 in conjunction with his TDIU claim. VA treatment records chronicle the Veteran's complaints of right upper extremity numbness which were noted on his last comprehensive VA examination for his spine in July 2009. A December 2011 VA treatment record showed that some neurological testing was undertaken. However, the Veteran has not been provided a recent comprehensive orthopedic and neurological evaluation for his cervical spine disorder. In light of the evidence that tends to indicate an increase in symptoms, the Board finds that a contemporaneous VA medical examination is warranted to determine the current severity of the Veteran's cervical spine disorder. Additionally, as to the claim for an anxiety disorder with PTSD features, the Veteran was last afforded an examination in January 2010. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95 (April 7, 1995). However, in a May 2010 statement, the Veteran's wife indicated that the Veteran's psychiatric disorder was worsening. She noted that his symptoms included neglect of personal hygiene and not taking his medication without reminders. Accordingly, the Board finds that a contemporaneous VA medical examination is warranted to determine the current severity of the Veteran's psychiatric disorder. In addition, the record reflects that the Veteran has continued to receive on-going treatment at the VA Medical Center. As this matter is being returned for additional development, all ongoing and outstanding VA medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (noting that VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following actions: 1. Obtain all outstanding VA treatment records. All efforts to obtain the additional evidence must be documented in the claims folder. If the search for such records has negative results, documentation to that effect should be included in the claims files. 2. Schedule the Veteran for an examination in order to determine the current level of severity of his chronic cervical strain with herniated disc C2-C3 status-post surgical fusion with associated pain and numbness of the upper extremities. The claims folder and a copy of this Remand must be made available to the examiner who should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination. All indicated studies, including range of motion studies, must be performed. The examiner must also specifically report at what point any pain begins. The extent of any incoordination, weakened movement, and excess fatigability on use (to include repetitive use and flare ups) should also be described by the examiner. If feasible, the examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner should indicate whether the Veteran's cervical spine disorder is so severe so as to result in incapacitating episodes (i.e., episodes in which his adverse symptomatology required bed rest ordered by a physician). If so, the examiner should comment on the duration and frequency of such incapacitating episodes. The examiner should comment on the presence and extent of any neurological abnormality associated with the cervical spine disorder, to include radiculopathy to the upper extremities. The supporting rationale for all opinions expressed must be provided. 3. Schedule the Veteran for a psychiatric examination in order to determine the severity of his service-connected anxiety disorder with PTSD features. The examiner should describe the Veteran's symptoms and note the impact, if any, of the Veteran's disorder on his social and industrial functioning. A report of the examination should be prepared and associated with the Veteran's VA claims folder. 4. Thereafter, readjudicate the Veteran's claims for increased evaluations for chronic cervical strain with herniated disc C2-C3 status-post surgical fusion with associated pain and numbness of the upper extremities, to include consideration of whether separate neurological evaluations are warranted; and anxiety disorder with PTSD features. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs