Citation Nr: 1340591	
Decision Date: 12/09/13    Archive Date: 12/20/13

DOCKET NO.  12-23 715	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service connection for hemorrhoids.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

M. Peters, Associate Counsel


INTRODUCTION

The Veteran had active duty service from December 1955 to December 1958.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for bilateral hearing loss, tinnitus and hemorrhoids.  The Veteran timely appealed that decision.  (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002)).

As an initial matter, the RO certified these issues as claims to reopen upon receipt of new and material evidence, based on the fact that the July 2010 rating decision became final.  The Board notes that that rating decision was not final, as the Veteran asked for reconsideration of those claims in a July 2010 statement, noting that he was not informed of the VA examination that he apparently failed to report to.  The Veteran was subsequently denied-after undergoing a VA audiological examination-in a September 2010 rating decision.  Consequently, the Veteran's December 2010 notice of disagreement was received, noting that he wished to appeal his claims for bilateral hearing loss, tinnitus and hemorrhoids.  The Board construes this as a notice of disagreement with the July 2010 rating decision, as it was received within one year of that decision and such was not final given that the Veteran indicated that he wished reconsideration as he had not been notified of his VA examination.  The Board has therefore not characterized the above claims as claims to reopen, but rather as initial service connection claims.  

The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in June 2013; a transcript of that hearing is associated with the claims file.

The issues of service connection for bilateral hearing loss and hemorrhoids 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

The Veteran specifically denied the presence of any current tinnitus (ringing of the ears), and the medical evidence of record does not demonstrate the presence of any tinnitus or ringing of the ears, throughout the appeal period.


CONCLUSION OF LAW

The criteria establishing service connection for tinnitus have not been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).  

Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.  VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

Here, the Veteran was sent letters in September 2009 and August 2010 that provided information as to what evidence was required to substantiate the claim of service connection for tinnitus herein decided and of the division of responsibilities between VA and a claimant in developing an appeal.  Those letters also explained what type of information and evidence was needed to establish a disability rating and effective date.  Accordingly, no further development is required with respect to the duty to notify.

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination.  Moreover, his statements in support of the claim are of record, including testimony provided at a June 2013 hearing before the undersigned.  The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified.  The Board has also perused the medical records 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 herein decided.  

For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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).

Analysis

The Board has reviewed all of the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. 

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  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, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).  

In relevant part, 38 U.S.C.A. 1154(a) (West 2002) 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, 1316 (Fed. Cir. 2009). 

"[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) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").  

"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)).  Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). 

For the showing of 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 opposed to merely isolated findings or a diagnosis including the word "chronic."  When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b). 

However, 38 C.F.R. § 3.303(b) only applies to the list of chronic diseases/disabilities recognized by VA as being chronic and those chronic diseases/disabilities are listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that 38 C.F.R. § 3.303(b) only applies to the listed chronic disabilities in 38 C.F.R. § 3.309(a)).

Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2013). 

Turning to the evidence, the Board notes that the Veteran's service treatment records were involved in the 1973 fire, though such were salvageable during that incident.  The original copies of the Veteran's service treatment records were determined by the National Personnel Records Center (NPRC) to be too brittle and moldy to be sent, so instead the NPRC sent copies of the Veteran's service treatment records as noted in December 2009 PIES response.  The copies of the Veteran's service treatment records have been associated with the claims file.  

Those service treatment records document no complaints of, treatment for, or diagnosis of any ringing in the ears or tinnitus, including on his September 1958 separation examination.  

The Board has reviewed all of the VA and private treatment records currently associated with the claims file.  While those records demonstrate evidence of hearing loss, the Veteran does not receive any treatment for nor did he complain of tinnitus/ringing in his ears throughout those records.  Specifically, the Board notes that Drs. L.'s and Dr. B.'s records, which include a November 2011 audiological referral note from Dr. G.P.T., all relate to bilateral hearing loss and treatment for such.  All of those records are silent for complaints of ringing in the ears and/or tinnitus.

The Veteran underwent a VA audiological examination in August 2010, at which time the Veteran stated that he was not claiming tinnitus and that he did not have a current complaint of tinnitus.  However, in both his notice of disagreement and substantive appeal, VA Form 9, the Veteran disputed the fact that tinnitus was ever discussed during his VA audiological examination.

Regardless, during his June 2013 hearing, the Veteran specifically indicated that he suffered from ringing in his ears during military service, especially when he was exposed to tank fire.  He further testified, however, that he did not have any current ringing in his ears.  When asked to clarify if he meant that he presently, at the hearing, did not have ringing in his ears, but rather whether he experienced ringing in his ears "every week or so often, or anything like that?"  The Veteran responded "No."

Based on the foregoing evidence, the Board finds that service connection for tinnitus must be denied.  The evidence of record demonstrates that the Veteran does not have a current diagnosis or any present complaints of ringing in his ears or tinnitus.  The Veteran's private and VA audiological records address only bilateral hearing loss and are void of any complaints of ringing in his ears or tinnitus.  While the Veteran stated that he had ringing in his ears during service, particularly during and after exposure to tank fire, the Veteran specifically denied the presence of any tinnitus or ringing in his ears in his June 2013 hearing, and the implication of his testimony is that he does not currently suffer from that type of symptomatology, even though such is diagnosable by lay observation.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (noting that conditions like the presence of a dislocated shoulder or varicose veins were capable of lay diagnosis due to the ability to observe those conditions compared to rheumatic fever, which was not capable of lay diagnosis).

Thus, while the Board acknowledges that the Veteran stated that tinnitus was not discussed during his August 2010 examination, the Board has determined that a remand in order to afford him another VA examination on that issue would serve no purpose, particularly in light of the Veteran's testimony in June 2013 that he did not suffer from ringing in his ears.  Thus, the Board finds that the VA examination as to his tinnitus in August 2010 is adequate at this time and a remand for another VA examination with respect to his tinnitus is not needed and would only serve to delay adjudicate of that issue.

In summary, the Veteran's most recent treatment records do not document any complaints of, treatment for, or diagnosis of either ringing in his ears or tinnitus.  In fact, the Veteran specifically denied the presence of any ringing in his ears or tinnitus throughout the appeal period during his June 2013 hearing before the undersigned.  See McClain v. Nicholson, 21 Vet. App. 319 (2007) (the requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim . . . even though the disability resolves prior to the Secretary's adjudication of the claim.").  

Accordingly, the Board must deny service connection for tinnitus at this time on the evidence of record.  See 38 C.F.R. §§ 3.102, 3.303; Brammer v. Derwinski, 3 Vet. App. 223 (1995) (Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability). 

In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).


ORDER

Service connection for tinnitus is denied.



REMAND

The Veteran underwent a VA examination of his bilateral hearing loss in August 2010, at which time it was noted that he met the requirements for a hearing loss disability under 38 C.F.R. § 3.385, per his audiological testing results.  The examiner, however, opined that based on the Veteran's whisper test results during service it would be mere speculation to opine as to whether his hearing loss was caused by or the result of military service, to include noise exposure therein.  The Board finds this opinion to be inadequate and therefore that issue must be remanded at this time.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). 

As an aside matter, the Board notes that the Veteran has claimed he was exposed to tank, mortar and small arms fire during his military service.  Review of the Veteran's Form DD-214 demonstrates that he earned the Sharpshooter (Rifle) decoration and that his military occupational specialty was "heavy weapons infantry."  Accordingly, the Board finds that exposure to such noise is conceded in this case as such exposure would be consistent with the types, places and circumstances of his service.  See 38 U.S.C.A. § 1154(b) (West 2002).

With regards to the Board's hemorrhoids claim, the Veteran is noted as having treatment in 2005 for internal hemorrhoids; he stated in his hearing that he continues to have treatment every 4 months for that condition-though review of his most recent private and VA treatment records does not document any hemorrhoids treatment since that time.

Regardless, the Veteran's service treatment records document that in January 1958, he sought treatment for rectal bleeding and stated to the doctor at that time that he believed he had hemorrhoids.  No actual diagnosis of such appears to have been made at that time.  The Veteran testified in his June 2013 hearing that he continued to have similar problems after discharge from service and that shortly after service he sought treatment for his hemorrhoids and started taking suppositories.  He testified that his symptoms have been intermittent but continuous since service.  

Based on the foregoing evidence, the Board finds that the low threshold that triggers VA's duty to provide a medical examination has been met with regards to his hemorrhoids claim.  Thus, on remand, the Veteran should be afforded a VA examination of his claimed hemorrhoids condition in order to determine whether such is related to service.  See 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet App. 79, 81 (2006).

Ongoing private and VA treatment records should also be obtained.  See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). 

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  Expedited handling is requested.)

1.  Obtain any relevant VA treatment records from the Tuskegee VA Medical Center, or any other VA medical facility that may have treated the Veteran, since February 2012 and associate those documents with the claims file.

2.  Ask the Veteran to identify any private treatment that he may have had for his bilateral hearing loss and hemorrhoids, which is not already of record, to include any ongoing treatment with Drs. L. or B.  After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file.  If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf.

3.  Schedule the Veteran for a VA audiological examination to determine the nature and etiology of his bilateral hearing loss.  The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination.  All tests deemed necessary should be conducted and the results reported in detail.  

After audiological examination, the examiner should indicate whether the Veteran's bilateral hearing loss is more likely, less likely, or at least as likely as not (50 percent or greater probability) is caused by or otherwise related to military service, to include exposure to tank, mortar and small arms fire noise therein.  

The examiner should take as conclusive fact that the Veteran was exposed to tank, mortar and small arms fire during his period of service.

The examiner should specifically discuss the August 2010 examination findings, the normal whisper tests (which are noted as being not very reliable by the August 2010 examiner) on enlistment and separation from service in 1955 and 1958, respectively, as well as the Veteran's lay evidence with regards to symptomatology during service and continuity of symptomatology after discharge from service.

All opinions must be accompanied by a rationale.  If the examiner determines that the questions cannot be resolved without resorting to speculation, then an explanation as to why this is so must be provided.  

4.  Schedule the Veteran for a VA examination in order to determine the nature and etiology of any hemorrhoid disorder found.  The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination.  All tests deemed necessary should be conducted and the result reported in detail.

After review of the claims file and examination of the Veteran, the examiner should identify any hemorrhoid disorder found.  The examiner should then opine as to whether the Veteran's hemorrhoids more likely, less likely, or at least as likely as not (50 percent or greater probability) began in or is otherwise related to military service.  

The examiner must discuss the noted January 1958 record that documents complaints of rectal bleeding and the notation that the Veteran believed that he had hemorrhoids at that time.  The examiner should additionally discuss the Veteran's lay statements that he had continued problems after discharge from service and that shortly after service he sought treatment and used suppositories.  The examiner should also discuss the Veteran's lay statements with respect to continuity of symptomatology since January 1958.

All opinions must be accompanied by a rationale.  If the examiner determines that the questions cannot be resolved without resorting to speculation, then an explanation as to why this is so must be provided.  


5.  Following any additional indicated development, the RO/AMC should review the claims file and readjudicate the Veteran's claims of service connection for bilateral hearing loss and hemorrhoids.  If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board.

The appellant 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.  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).




______________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs