Citation Nr: 1415526 Decision Date: 04/09/14 Archive Date: 04/15/14 DOCKET NO. 09-29 319 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tuberculosis. 4. Entitlement to service connection for a bilateral knee disability. 5. Entitlement to service connection for seasonal allergies, variously claimed as hay fever. 6. Entitlement to service connection for asthma. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Stanley, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1985 to April 1986 and from February 1989 to April 2008. This matter is before the Board of Veterans' Appeals (Board) on appeal from January 2009 and March 2010 rating decisions by the Montgomery, Alabama Department of Veterans Affairs (VA) Regional Office (RO). The issues of service connection for left ear hearing loss, a bilateral knee disability, seasonal allergies, and asthma are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if action on his part is required. FINDINGS OF FACT 1. It is reasonably shown that the Veteran's tinnitus became manifest in service and has persisted. 2. The Veteran is not shown to have a right ear hearing loss disability. 3. The Veteran is not shown to have (or during the pendency of this claim to have had) a diagnosis of tuberculosis or residual pathology. CONCLUSIONS OF LAW 1. Service connection for tinnitus is warranted. 38 U.S.C.A. § 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. Service connection for a right ear hearing loss disability is not warranted. 38 U.S.C.A. §§ 1110, 1131, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2013). 3. Service connection for tuberculosis is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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. See 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 claim. Under the VCAA, VA must inform the claimant of any information and 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. See Pelegrini v. Principi 18 Vet. App. 112, 120-21 (2004). 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 (2006). A July 2008 and February 2009 (prior to the initial adjudication of the claims) letter, notified the Veteran of the evidence needed to substantiate his claims; informed him that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was responsible for providing private records or any necessary releases [for private records] and enough information to enable VA to request them; and informed him of how ratings and effective dates are assigned. The Veteran's service treatment records (STRs) and VA treatment records have been secured. He was afforded VA examinations in August 2008. The Board finds that the examination reports are adequate for rating purposes, as they reflect familiarity with the record and include the findings needed to adjudicate these claims. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). VA's duty to assist as to the issues decided is met. Legal Criteria, Factual Background and Analysis Service connection may be granted for disability due to a disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after separation, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection, there must be evidence of a present disability; evidence of an in-service incurrence or aggravation of a disease or injury; and 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, 1167 (Fed. Cir. 2004). A threshold matter that must be addressed in a claim seeking service connection is whether the Veteran has the disability for which service connection is sought. Without proof of a present disability there is no "valid claim" of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The United States Court of Appeals for Veterans Claims (Court) has held 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 at any time during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). 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). The Board has reviewed all evidence in the claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence as deemed appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claims. Tinnitus The Veteran claims he has tinnitus that had its onset in service. It is not in dispute that he has tinnitus; the medical evidence of record documents his complaints of such, and tinnitus is a disability capable of lay observation (by the person experiencing it). See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Furthermore, based on the Veteran's occupational specialty in service (avionic electrical technician), it may readily be conceded that he was exposed to hazardous noise levels in service. The Board finds that the competent evidence of record reasonably supports the Veteran's allegation that his tinnitus became manifest in service, and has persisted since. While there are no complaints of, or treatment for, tinnitus noted in his STRs, the Board observes that ringing or buzzing in the ears, while annoying, might not be a complaint that is readily reported. Following service, the Veteran has consistently reported that he has experienced tinnitus for many years. A July 2008 VA treatment record shows he sought treatment for hearing loss and tinnitus. An August 2008 VA treatment record indicates he reported experiencing tinnitus for 10 years (well within his period of service) and that it occasionally wakes him up and makes it difficult for him to hear in noisy environments. While he did not report tinnitus during the August 2008 VA examination, the Board finds his statements and testimony credible and competent evidence to establish that his tinnitus began in service and has been present since. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Resolving remaining reasonable doubt in the Veteran's favor, as required (see 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102), the Board finds that it is shown that the Veteran's tinnitus became manifest in service and has persisted since. The requirements for establishing service connection for tinnitus are met. Service connection for tinnitus is warranted. Right Ear Hearing Loss The Veteran contends he suffered bilateral hearing loss due to acoustic trauma in service related to his duties as an avionic electrical technician. 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 of 500, 1000, 2000, 3000, and 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 scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. A July 2008 VA treatment record indicates that the Veteran's hearing was within normal limits bilaterally, but that his speech discrimination score was 100 percent in the right ear and 84 percent in the left ear. It is unclear if the examiner used the Maryland CNC Test as required by VA regulations and puretone thresholds were not noted. On VA audiological examination in August 2008, puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 10 15 LEFT 15 10 10 20 15 The puretone threshold average was 11 decibels for the right ear and 14 for the left. A Maryland CNC speech discrimination test revealed speech recognition ability of 96 percent in the right ear and 92 percent in the left ear. Such findings reflect the Veteran's right ear hearing acuity was normal (i.e., no right ear hearing loss disability). The threshold question that must be addressed here, as in any claim seeking service connection, is whether the Veteran indeed has (during the pendency of this claim had) the disability for which service connection is sought, i.e., a right ear hearing loss disability. Hearing loss disability is defined by regulation (38 C.F.R. § 3.385, outlined above), and is established by audiometry specified by regulation (38 C.F.R. § 4.85). There is no objective evidence in the record that shows or suggests that the Veteran has a right ear hearing loss disability as defined by 38 C.F.R. § 3.385. As the Veteran is not shown to have a right ear hearing loss disability, he has not presented a valid claim of service connection for such disability. See 38 U.S.C.A. § 1110; also see Brammer, 3 Vet. App. at 225. Accordingly, the appeal as to right ear hearing loss must be denied. Tuberculosis In addition to the general criteria for addressing claims of service connection outlined above, presumptive service connection is afforded for tuberculosis, which becomes manifest to a compensable degree within three years following the date of separation from active service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Pulmonary tuberculosis must be established by competent medical evidence and X-ray examination within three years following a veteran's service. 38 C.F.R. §§ 3.307(a)(3), 3.371(a), 3.374(c). The Veteran's STRs note a positive PPD (purified protein derivative) test in October 2001(he has indicated he tested positive on other occasions in service). The STRs also show treatment for upper respiratory infections on multiple occasions and for pneumonia. A June 2008 VA treatment record notes a positive PPD test with a normal chest X-ray and no evidence of pulmonary tuberculosis (PTB), and notes previous exposure to TB during service. The Veteran was placed on an Isoniazid (INH) regimen. A July 2008 VA hematology consult indicates that there was no need for further work up. On August 2008 VA examination, the Veteran reported past positive PPD tests and exposure to TB in the tribal areas of Alaska. The examiner noted the previous exposure to tuberculosis and the past positive PPD tests, but found insufficient evidence to warrant an acute diagnosis for a respiratory disease. A March 2009 VA treatment record shows the Veteran had a previous positive PPD test and had been given a prophylaxis for tuberculosis. The threshold question that must be addressed here (as in any claim seeking service connection) is whether or not the Veteran has the disability for which service connection is sought. He seeks service connection for tuberculosis, noting that he had a positive PPD test while still on active duty and has had positive PPD tests post-service. A positive PPD test is merely that, a test finding. See Dorland's 31st Ed. (2007) at 2006. It is not a disability entity for which VA compensation benefits are payable. A diagnosis of tuberculosis is established by further/follow-up studies. Here, such diagnosis has not been made. Regarding the Veteran's self-reports that he has (or had) tuberculosis that was manifested within three years of her separation from service, he has not provided any evidence of such other than citing to a positive PPD test and preventative treatment; he has not reported a specific diagnosis of tuberculosis itself. The Board notes that tuberculosis is a disease that is diagnosed based on diagnostic studies, and is beyond the scope of lay observation. See Jandreau, v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As a diagnosis of tuberculosis is not shown, the chronic disease presumptions afforded under 38 U.S.C.A. § 1112 do not apply. In summary, the Veteran is not shown to have a diagnosis of tuberculosis. His Veteran's positive PPD tests both in service and following her discharge from service are merely test results (reflecting exposure to tuberculosis) which assist in a diagnosis of tuberculosis, but of themselves do not establish the presence of such disease. It is not shown that follow-up studies ever confirmed a diagnosis of tuberculosis. Hence, he has not met the threshold requirement in a claim of service connection, and service connection for tuberculosis is not warranted. In the absence of proof of a present disability, there can be no valid claim [of service connection]. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). ORDER Service connection for tinnitus is granted. The appeal seeking service connection for right ear hearing loss is denied. The appeal seeking service connection for tuberculosis is denied. REMAND Regarding left ear hearing loss, on August 2008 VA examination, speech recognition (using the Maryland CNC word list) was 92 percent in the left ear. A July 2008 VA treatment record shows a speech recognition score of 84 percent in the left ear. Accordingly, there is evidence the Veteran has a left ear hearing loss disability. Furthermore, it is reasonably shown by the record that his occupation in service would have exposed him to hazardous levels of noise. Thus, a medical opinion is needed to determine whether his current left ear hearing loss disability is related to service/noise trauma therein. On the August 2008 VA examination, within months following separation from service, the Veteran reported popping and cracking of his knees and pain in the lower knee on bending forward or squatting. He reported the onset was in 1998. The diagnosis was bilateral chrondomalacia patella, but the examiner did not opine as to whether the Veteran's current knee disability is related to his service. Another examination to secure such opinion is necessary. The Veteran also contends that while he was stationed in Alaska, and following exposure to chemical fire extinguishers in service, he acquired a respiratory disability and had an inhaler prescribed for emergencies. His STRs corroborate this event and document he received treatment for colds, upper respiratory infections, and allergies during service. While a history of seasonal allergies was noted when the Veteran was examined for induction, there is no medical opinion in the record as to whether the pre-existing allergies were aggravated (i.e. increased in severity) during service. Such opinion is necessary. Additionally, on August 2008 VA examination, the Veteran reported recently having asthma diagnosed at UAB (University of Alabama - Birmingham). A review of the record found no records in evidence pertaining to such diagnosis, or that the RO attempted to secure such records. As any such records are likely to contain pertinent information, they must be sought. Accordingly, the case is REMANDED for the following: 1. The RO should obtain for the record copies of updated complete clinical records of all VA evaluations and treatment the Veteran has received for respiratory and knee disabilities. Furthermore, the Veteran should be asked to identify all private providers who have evaluated and/or treated him for a respiratory disability or for his knees (records of which are not already in the record), and to provide releases for VA to secure records of all such private evaluations and treatment. In particular, he must identify (and provide releases for records of) the private provider he mentioned at the 2008 VA examination (who diagnosed asthma). The RO should secure for the record the complete clinical records of such treatment from all sources identified. If a private provider does not respond to VA's request for records sought, the Veteran should be so notified, and advised that it is ultimately his responsibility to ensure that private records are received. 2. After the above development is completed, the RO should arrange for an audiological evaluation of the Veteran to determine the likely etiology of his left ear hearing loss. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination. Based on review of the record, and examination of the Veteran, the examiner should provide an opinion that responds to the following: What is the most likely etiology for the Veteran's left ear hearing loss disability? Specifically, is it at least as likely as not (a 50 percent or greater probability) that the hearing loss is related to his service, to include as due to acknowledged exposure to noise as an avionic electrical technician. If the hearing loss is determined to be unrelated to service, please identify the etiological factors for such disability that are considered more likely. The examiner must explain the rationale for all opinions, citing to factual data and/or medical literature as deemed appropriate. 3. The RO should also arrange for an orthopedic examination of the Veteran to determine the nature and likely etiology of his knee disabilities. The examiner must review the Veteran's claims file in conjunction with the examination. Following examination of the Veteran and review of his pertinent medical history, the examiner should provide an opinion that responds to the following: a. Identify (by medical diagnosis) each right and left knee disability found. b. As to each knee disability entity diagnosed, indicate whether it is at least as likely as not (a 50 percent or greater probability) that such is related to the Veteran's active service? The explanation of rationale should include comment on the significance (if any) of the knee complaints noted within months following service. The examiner must explain a rationale for all opinions, citing to supporting factual data as deemed appropriate. 4. The RO should further arrange for the Veteran to be examined by an appropriate physician to determine the nature and likely etiology of his seasonal allergies and asthma. The entire record must be reviewed in conjunction with the examination. Based on review of the record and examination of the Veteran, the examiner should provide an opinion that responds to the following: a) Please identify (by medical diagnosis) each respiratory disability entity found. Specifically, does the Veteran have asthma? b) Is it at least as likely as not (a 50 percent or greater probability), that the Veteran's pre-existing seasonal allergy/hay fever disability increased in severity during service? Please comment on the significance of the notations in his STRs. c) As to each respiratory disability (other than seasonal allergies/hay fever) diagnosed, please indicate whether such is at least as likely as not (a 50 percent or greater probability) related to the Veteran's active service/respiratory complaints noted therein? The examiner must explain the rationale for all opinion(s), citing to supporting factual data and/or medical texts/treatises as appropriate. 5. The RO should then review the record and readjudicate the Veteran's claims remaining on appeal. If any remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs