Citation Nr: 1342882 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 12-22 013 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for iritis. ATTORNEY FOR THE BOARD T. Casey, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1993 to December 1995. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Pittsburgh, Pennsylvania, Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The Veteran is not shown to have (or at any time during the pendency of the instant claim to have had) a hearing loss disability of either ear by VA standards. 2. Tinnitus was not manifested in service, and a preponderance of the evidence is against a finding that the Veteran's tinnitus is related to his service. 3. The Veteran is not shown to have (or at any time during the pendency of the instant claim to have had) iritis. CONCLUSION OF LAW 1. Service connection for bilateral hearing loss is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2013). 2. Service connection for tinnitus is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 3. Service connection for iritis is not warranted. 38 U.S.C.A. §§ 1110, 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) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claims. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claims prior to the initial adjudication of the claims. An October 2010 letter explained the evidence necessary to substantiate the claims, the evidence VA was responsible for providing, and the evidence he was responsible for providing. He was also advised of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record, and has not alleged that notice was less than adequate. The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured. The RO arranged for VA audiological and eye examinations in September 2011. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide these matters, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis Service connection may be granted for disability resulting from personal injury suffered or disease contracted during active military service, or for aggravation of a pre-existing injury suffered, or disease contracted, during such service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases (including sensorineural hearing loss (SNHL), as an organic disease of the nervous system), may be service-connected on a presumptive basis if manifested to a compensable degree within a specified period of time postservice (one year for SNHL). 38 U.S.C.A. §§ 1112; 38 C.F.R. §§ 3.307, 3.309. In order to establish service connection for a disability there must be (1) evidence of a present disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Hearing loss Impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least 3 of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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 Veteran's DD 214 shows that his military occupational specialty was chemical operation specialist. He contends that he was told that he had a hearing problem before he was discharged, and that there should be a record of such in the STRs. His STRs, including only one in-service audiological evaluation, are silent for complaints, findings, or diagnosis of hearing loss or tinnitus. They do not include a reports of a service discharge examination. On February 2014 audiometry (to obtain a baseline prior to duty in a hazardous noise environment) , puretone thresholds, in decibels, were: Hertz 500 1000 2000 3000 4000 6000 Right 0 0 0 0 0 5 Left 5 0 10 0 5 10 The only postservice audiometry of record was on September 2011 VA audiological evaluation scheduled in connection with the instant claim, when puretone thresholds, in decibels, were: Hertz 500 1000 2000 3000 4000 Right 10 15 15 20 20 Left 15 15 20 20 25 Speech recognition (Maryland CNC) was 98 percent in the right ear and 96 percent in the left ear. The diagnoses were normal hearing sensitivity and subjective tinnitus. The Veteran reported a history of noise exposure in service due to his duties and from generators, with inconsistent use of hearing protection. He also reported postservice occupational noise exposure as a trucker. The record, as it stands currently, does not show that the Veteran has had a hearing loss disability in either ear in service or at any time thereafter. While him may be competent to observe that he has difficulty hearing, he is not competent to establish by his observation that he has a hearing loss disability because under governing regulation (38 C.F.R. § 3.385) that requires audiometric testing. On September 2011 VA audiological examination, audiometry showed that the Veteran does not have a hearing loss disability as defined by the regulation outlined above. In the absence of any competent evidence showing that the Veteran has a hearing loss disability, he has not presented a valid claim of service connection for such disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, the appeal in this matter must be denied. Tinnitus It is not in dispute that the Veteran has tinnitus. HIs complaint of tinnitus was noted on September 2011 VA audiological examination,. Tinnitus is a disability that is eminently capable of observation by the person experiencing it, and generally is not capable of objective verification. The Board finds no reason to question the Veteran's reports that he has tinnitus; and it may reasonably be conceded that he has such disability. It may also reasonably be conceded that the Veteran had some degree of exposure to noise trauma in service; he reported noise exposure related to his duties, and the sole audiometry in service was identified as being for a baseline prior to service in a noisy environment. What he must still show to establish service connection for tinnitus is that it is related to his service/noise trauma therein. The Veteran is competent to observe he has tinnitus. However, findings of competency and credibility are two distinct matters. After a careful review of the evidence, the Board finds that the Veteran's statements that his tinnitus had its onset in service and persisted since are not credible. In his September 2010 claim, the Veteran alleged that tinnitus began in 1994 and that he has been treated for such disability by the VA Pittsburgh Healthcare System from 1994 to present. He also contends that prior to service discharge he was told he had a hearing problem (which should be noted in the STRs). However, there is no report of tinnitus in his STRs, and evidence overall weighs against a finding that he has had tinnitus since service. His allegation that he received VA treatment for tinnitus since 1994 is implausible on its face. He was discharged from service in December 1995; so the allegation asserts a year of VA treatment for tinnitus while he was still in service. Furthermore, when the RO asked the Veteran to identify any specific postservice treatment for tinnitus, he did not respond. Finally, there is no documented report of tinnitus by the Veteran prior to his filing of the instant claim (which suggests that the allegation is compensation-driven, and self-serving). In light of all of the foregoing, the allegation that his tinnitus began in service in 1994 and has been treated since is not credible. Accordingly, service connection for tinnitus on the basis that it became manifest in service and persisted is not warranted. Whether a disability such as tinnitus is/is not related to remote etiological factors in service in the absence of continuity of symptoms is a medical question, beyond the capability of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The only competent (medical) evidence of record that directly addresses the matter of a nexus between the Veteran's current tinnitus and his service is the report of the September 2011 VA examiner, who opined that the Veteran's tinnitus is less likely than not related to noise exposure in service, citing to the fact that tinnitus was not noted in service, and that a diagnosis of a hearing loss disability (which generally accompanies a diagnosis of tinnitus ) was not shown. As this opinion is against the Veteran's claim, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for tinnitus, and the appeal in this matter must be denied. Iritis The Veteran asserts that he has iritis in his left eye that had its onset in service. His STRs show treatment for iritis in March 1995, and that the Veteran reported at that time that iritis was previously diagnosed in November 1993. On September 2011 VA eye examination, it was noted that the Veteran was treated for iritis in service. The Veteran reported that he has had "several" recurrences of iritis in the same eye since separation from service. Iris examination of the left eye showed old Busacca nodules at the pupillary margin. The examiner determined the Veteran's iritis is currently "quiescent." The threshold matter that must be addressed is whether the Veteran has a current diagnosis of iritis. No treatment or examination record since service shows that he has had any eye disability (and specifically iritis). Regarding his report to the September 2011 VA examiner that he has had several recurrences of iritis since separation, it is noteworthy that the Veteran was asked by the RO to identify any postservice treatment. He did not respond, and the Board is unable to find that a chronic iritis disability was indeed shown postservice. In the absence of any competent evidence showing that the Veteran has, or during the pendency of the appeal has had, iritis, he has not presented a valid claim of service connection for such disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, service connection for iritis is not warranted. [The Board observes that evidence of a chronic iritis would be a basis for reopening the claim.] ORDER The appeal seeking service connection for bilateral hearing loss is denied. The appeal seeking service connection for tinnitus is denied. The appeal seeking service connection for iritis is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs