Citation Nr: 1343131 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 10-37 151 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for residuals of right elbow injury. 4. Entitlement to service connection for residuals of back injury. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from October 1959 to January 1962. These matters came to the Board of Veterans' Appeals (Board) from a June 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a RO hearing in August 2009 and at a Board hearing in January 2012; the transcripts are of record. These matters were remanded in February 2013. In a May 2013 rating decision, the Appeals Management Center (AMC) granted entitlement to service connection for status post pilonidal cyst, assigning a 10 percent disability rating, effective October 3, 2006. The grant constitutes a full award of the benefit sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The issues of entitlement to service connection for residuals of left elbow injury and residuals of back injury are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC in Washington, DC. VA will notify the Veteran if any further action is required on his part. FINDINGS OF FACT 1. Bilateral hearing loss was not manifested during the Veteran's period of active service, did not manifest within a year of separation from service, and is not otherwise the result of a disease or injury during active service. 2. Tinnitus was not manifested during the Veteran's period of active service, did not manifest within a year of separation from service and is not otherwise the result of a disease or injury during active service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in or aggravated by active service; nor may it be presumed. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. Tinnitus was not incurred in or aggravated by active service; nor may it be presumed. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 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). The Veteran has recently alleged that he never received a VCAA notice letter. The record shows, however, that he was sent a letter in January 2007 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal, and the type of information and evidence needed to establish a disability rating and effective date. The Veteran acknowledged receipt of this letter in a statement he submitted to the RO in February 2007. 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, to include substantial compliance with the Board remand (see D'Aries v. Peake, 22 Vet. App. 97, 105 (2008)), and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The remand was for the purpose of obtaining another VA examination and opinion. The Veteran was afforded a VA examination in March 2013 which will be discussed below. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The claims file contains the Veteran's service and post-service treatment records, and lay statements and testimony of the Veteran. The Board otherwise concludes that no available outstanding evidence has been identified pertaining to the hearing loss and tinnitus claims. 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 these claims. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims. 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). Criteria & Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); 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 v. Gober, 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 adjudicating this claim, the Board must assess the Veteran's competence and credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368- 69 (2005). In Barr v. Nicholson, 21 Vet. App. 303 (2007) (overruled on other grounds), the Court emphasized that lay testimony is competent if it pertains to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge. See also 38 C.F.R. § 3.159(a)(2) (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, for veteran's who have served 90 days or more on or after December 31, 1946, certain chronic diseases, such as sensorineural hearing loss or tinnitus, as an organic disease of the nervous system), are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestation of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). The second and third Caluza elements may also be satisfied under 38 C.F.R. § 3.303(b) (1998), by the submission of (a) evidence that a condition was "noted" during service or during an applicable presumption period; (b) evidence showing post-service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1998). (overruled on other grounds). 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(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Hearing loss is considered to be a disability for VA purposes when the 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 these frequencies are 26 decibels or greater; or when speech recognition thresholds using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. VA audiometric readings prior to June 30, 1966, and service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standards Organization (ISO) units. The Veteran testified that he initially experienced tinnitus during service but was told by a physician that it would go away. Board T. at 11-12. He also testified that his ringing of the ears would go away at times and then would start back up again. Board T. at 27. The Veteran asserts that following service he sought private treatment for hearing loss; however, the records are unavailable as the physician is deceased. The Veteran's spouse testified that she and the Veteran married 6 months after his separation from service and she noticed a difference in his hearing in late January 1962. Board T. at 28. An October 1959 Report of Medical Examination conducted for induction purposes showed a whispered voice test to be 15/15. A November 1961 examination report conducted for separation purposes reflects normal audiometric results. The ears were clinically evaluated as normal. On a Report of Medical History, the Veteran checked the 'No' boxes for 'ear, nose, or throat trouble' and 'running ears.' In his claim received in October 20006, the Veteran reported that he had received no treatment for hearing loss or tinnitus. In September 2006 the Veteran established treatment at a VA clinic. His medical history was recorded, but there was no mention of hearing loss or tinnitus. It was noted that he was a retired fire fighter. In February 2007, the Veteran underwent VA audiological evaluation after referral from the primary care clinic. He reported a history of hearing loss and tinnitus since 1961, after exposure to noise, including an explosion on his left side. Mild to moderate sensorineural hearing loss was diagnosed. Hearing aids were ordered. In his January 2008 notice of disagreement, the Veteran contended that he had severe hearing loss. He reported noise exposure consisting of the noise from driving armored personnel carriers (APCs), and that he had an ear infection in 1961. In June 2010, the Veteran underwent a VA audiological examination. The examiner opined that due to the lack of documentation of an "OSHA-defined STS [standard threshold shift]" during service, his current hearing loss and tinnitus were not related to service. In March 2013, the Veteran underwent a VA audiological examination. Upon audiological testing, the examiner diagnosed sensorineural hearing loss in both ears and recurrent tinnitus. The examiner opined that the Veteran's hearing loss and tinnitus were not likely a result of service. The examiner noted that both the induction and separation examinations document hearing within normal limits. The examiner stated that comparison of induction and separation exams indicate no significant change in hearing sensitivity and documentation of an OSHA-defined STS during military service cannot be established from this audiometric data. The examiner stated that the documentation of hearing within normal limits at induction, documentation of hearing within normal limits at separation, and the lack of documentation of an OSHA-defined STS during military service indicate that it is not at least as likely as not that the Veteran's current hearing loss and tinnitus are related to military service. The examiner stated that the Veteran's self report of medical history at separation dated in November 1961 is negative for ear, nose or throat trouble. With regard to ASA versus ISO hearing thresholds, the examiner indicated that the November 1961 separation audiogram does not specify ASA or ISO but is likely ASA because it was performed in 1961. The examiner stated that conversion to ISO thresholds showed readings well within normal limits and 500 and 6000 Hertz are not considered in determinations of OSHA-defined threshold shifts. The examiner commented that the audiometric data does not document or suggest that an OSHA-defined threshold shift occurred during military service. The examiner also noted that hearing sensitivity at separation exam is documented to be 15 to 20 decibels below the confines of normal limits and Veteran's self report of medical history at separation in November 1961 is negative for ear, nose, or throat trouble. The examiner commented further that service records showed normal hearing with no significant changes in hearing thresholds in either ear. The examiner cited to the Institute of Medicine (2006) noting that it stated there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. The IOM panel concluded that based on their current understanding of auditory physiology a prolonged delay in the onset of noise-induced hearing loss was "unlikely." Based on the objective evidence (audiograms), the examiner stated that there is no evidence on which to conclude that the Veteran's current hearing loss was caused by or a result of his military service, including noise exposure. With regard to tinnitus, the examiner stated that there is no evidence in the record that the Veteran complained of or was treated for tinnitus. The examiner noted that tinnitus is commonly associated with hearing loss. Thus, it is reasonable to conclude that the tinnitus is a symptom of the hearing loss. Having determined that it is less likely as not that the Veteran's current hearing loss was caused by or the result of military service, it follows that tinnitus was not caused by or the result of military service. Because there was no objective evidence of noise injury, there was no basis on which to conclude that the claimed tinnitus was associated with such injuries. In the absence of an objectively verifiable noise injury (audiograms), the association between claimed tinnitus and noise exposure was speculative. In order to give an opinion that tinnitus was related to noise exposure, the examiner explained that he would have to accept the scientifically unsubstantiated theory that tinnitus occurred as a result of some latent, undiagnosed noise injury. Indeed, such an opinion would directly contradict the objective evidence in the record. Based on the examiner's review of the evidence available in the record, the examiner opined that tinnitus is less likely as not related to the Veteran's military service to include noise exposure. The examiner acknowledged that the Veteran's military occupational specialty carries a high probability of hazardous noise exposure. The examiner acknowledged that the Veteran's and spouse's testimony contend that tinnitus and hearing loss began in service and were caused by hazardous noise exposure. The examiner explained, however, that VA directives mandate that examiners must be able to support their opinions with evidence contained in Veteran's claims file. The examiner stated that there was no audiometric data or documented complaints in the Veteran's service treatment records to support the contention that the tinnitus and hearing loss were caused by or incurred during military service, nor was there sufficient permanent hearing loss or tinnitus directly attributable to noise exposure which would develop long after noise exposure. Analysis The record establishes that the Veteran had noise exposure in service and has current hearing loss disability and tinnitus. The outcome of the appeals turns on whether the hearing loss and tinnitus are related to the noise exposure or other disease or injury in service. At the time of separation from active service in January 1962, the Veteran's hearing was within normal limits and he did not report any problems with his ears. Moreover, objective hearing loss is not shown until 2007, thus approximately 45 years after separation from service. The Veteran and his wife have provided competent testimony as to a continuity of symptoms dating back to service. Their testimony is contradicted by the fact that the Veteran did not report hearing loss or tinnitus at the time of his separation from service, testing did not show hearing loss at that time, and the Veteran did not report any history of hearing loss or tinnitus when he initially sought treatment at VA in September 2006. The Veteran has also provided a variable history since filing his claims. On his claim form he reported no treatment for hearing loss or tinnitus, but he subsequently testified that he had received treatment, the records of which were no longer available. The Veteran has argued, essentially, that he did not report tinnitus earlier, because he was not tested for, or asked about that disability; however, it does not seem credible that the Veteran would have reported other conditions, but not a disabling ringing in his ears, even if he wasn't specifically prompted to report the complaint. At his separation physical and in September 2006, the Veteran reported specific medical history but omitted any mention of hearing loss or tinnitus. Given the contradictions in the record, the reports of continuity of symptomatology are not deemed credible. Moreover, as detailed, the March 2013 VA examiner provided a negative opinion. The opinion was supported by a thorough analysis in consideration of the lay evidence and objective evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295. 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examiner did not comment on the continuity of symptomatology, but the reports of continuity have not been found credible. The March 2013 VA examiner's opinion is the most probative evidence. As the most probative evidence is against the claim, reasonable doubt does not arise and the claim is denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. REMAND The Veteran asserts that in or about April 1960 he was washing vehicles and slipped and fell on his right elbow, incurring a dimple about the size of a quarter. He also asserts that he fell on his tailbone, injuring his back. Service treatment records confirm a scar on the right elbow. In March 2013, the Veteran underwent VA examinations pertaining to the elbow and back. With regard to the right elbow, the examiner diagnosed mild spurring right olecranon and opined that his condition was less likely than not due to service as there is no mention of a fall in military service and post-discharge a history of working uneventfully for 28 years as a fireman. With regard to the back, the examiner diagnosed degenerative disc disease/degenerative joint disease lumbar spine and opined that this condition was less likely than not due to service as there is no mention of a fall in military service. The examiner did not appear to give any consideration to the lay contentions of the Veteran and his spouse. Thus, addendum opinions are necessary. Accordingly, the case is REMANDED for the following actions: 1. Return the claims folder and a copy of this remand to the March 2013 VA examiner (or another examiner if the March 2013 VA examiner is unavailable) for an opinion pertaining to whether the Veteran's right elbow and back disabilities are related to the reported fall and scarring in service. The examiner should offer an opinion as to the following: a) whether it is at least as likely as not (a 50 percent or higher degree of probability) that a disability of the right elbow, to include mild spurring right olecranon, had its onset during the Veteran period of service or is otherwise related to his period of service; b) whether it is at least as likely as not (a 50 percent or higher degree of probability) that a disability of the back, to include degenerative disc disease/degenerative joint disease lumbar spine, had its clinical onset during his period of service or is otherwise related to his period of service. The examiner must provide appropriate reasons and rationale for these opinions. The examiner is advised that the Veteran is competent to report his symptoms and history; and that his spouse is competent to report her observations dating back to 1962; and that their reports must be considered in formulating the requested opinions. If the examiner rejects the reports of the Veteran and his spouse, the examiner must provide reasons for doing so; the mere absence of supporting clinical evidence is an insufficient reason; by itself for rejecting their reports. If any requested opinions cannot be provided without resort to speculation, the examiner should explain why this is so; and whether the inability to provide the necessary opinion is due to the limits of medical and scientific knowledge or is due to the absence of specific evidence. If deemed necessary, another VA examination should be scheduled. 2. If either of the benefits sought on appeal remain denied, issue a supplemental statement of the case; then return the case the Board, if otherwise in order. The Veteran and his representative have 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. 2012). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs