Citation Nr: 1507448 Decision Date: 02/20/15 Archive Date: 02/26/15 DOCKET NO. 12-09 280 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for Parkinson's disease. 2. Entitlement to service connection for a bilateral hearing loss disability. 3. Entitlement to a disability rating in excess of 10 percent for coronary artery disease (CAD). ATTORNEY FOR THE BOARD J.A. Flynn, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to September 1970, including service in the Republic of Vietnam (Vietnam) during the Vietnam War. This matter comes on appeal before the Board of Veterans' Appeals (Board) from two rating decisions of the VA RO in Nashville, Tennessee. A March 2011 rating decision, in part, denied service connection for a bilateral hearing loss disability. A March 2012 rating decision denied service connection for Parkinson's disease and granted service connection for CAD, assigning an initial 10 percent evaluation effective August 31, 2010. The Veteran timely disagreed with each of these decisions. The issue of entitlement to a disability rating in excess of 10 percent for CAD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The weight of the competent and credible evidence of record is against a finding that the Veteran has ever been diagnosed with Parkinson's disease. 2. The weight of the competent and credible evidence of record is against a finding that a bilateral hearing loss disability began during the Veteran's military service, was caused by his service, had an onset within a year of his service, or has been continuous since service. CONCLUSIONS OF LAW 1. Parkinson's disease was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309 (2014). 2. A bilateral hearing loss disability was not incurred in or aggravated by service, and it may not be presumed to have been. 38 U.S.C.A. §§ 1110, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.385 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has certain notice and assistance obligations to claimants. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). In the instant case, the Veteran has been provided with all appropriate notification, and he has not otherwise alleged or demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. With respect to the duty to assist, VA has done everything reasonably possible to assist the Veteran with respect to this claim for benefits. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service treatment records, VA treatment records, and private treatment records have been obtained, to the extent available. The Veteran has not been afforded with a VA examination addressing his claimed Parkinson's disease. No such examination is required. The Federal Circuit Court of Appeals has recognized that there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the Secretary's obligation under 38 U.S.C.A. § 5103A(d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability. See McLendon v. Nicholson, 20 Vet. App.79, 81 (2006). With respect to the Veteran's claim of entitlement to service connection for Parkinson's disease, the evidence does not indicate that the Veteran has been diagnosed with such disability at any time. Instead, the only suggestion that the Veteran may have Parkinson's disease is the Veteran's own lay testimony, and the Veteran's lay statements are insufficient to trigger VA's duty to provide an examination with an opinion. See Waters, 601 F.3d 1274. Without competent evidence indicating that the Veteran has indeed been diagnosed with Parkinson's disease, a VA examination addressing this claim is unwarranted. The Veteran was provided with an audiological examination in December 2010. The Board finds that the examiner reviewed the Veteran's claims file and past medical history, recorded his current complaints, conducted an appropriate evaluation, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. The Veteran has not questioned the adequacy of this examination. The Board, therefore, finds the December 2010 examination to be adequate for the purpose of rendering a decision as to the issue on appeal. 38 C.F.R. § 4.2 (2014); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran declined the opportunity to present testimony before the Board. The Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file, and it is not contended otherwise. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Thus, the duties to notify and assist have been met, and the Board will proceed to a decision. Service Connection for Parkinson's Disease The Veteran contends that he is entitled to service connection for Parkinson's disease as a result of the in-service exposure to herbicides. In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). This principle has been repeatedly reaffirmed by the Federal Circuit, which has stated that "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 Fed. Cir. 2000). The Court has held that the requirement for service connection 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. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). With regard to a current Parkinson's disease disability, the evidence of record does not show that the Veteran has never been diagnosed with or treated for Parkinson's disease. While the Board acknowledges that the Veteran may complain of symptoms such as pain, VA does not generally grant service connection for symptoms of pain alone, without an identified basis for those symptoms. In other words, VA needs to identify a disability, not symptoms of a disability. The Veteran filed a claim seeking service connection for Parkinson's disease in 2011, but he did not explain when such a disease had ever been diagnosed. He suggested that relevant treatment records were at the VAMC in Nashville, but no diagnosis of Parkinson's is found in the hundreds of pages of VA treatment records that were reviewed. The Veteran's private treatment records were reviewed, but they too fail to show a diagnosis of Parkinson's having been rendered. The Veteran's representative similarly failed to identify any diagnosis of Parkinson's having been rendered. With respect to the Veteran's lay statements regarding symptoms such as pain, the Board has no reason to doubt that the Veteran currently experiences such symptoms. The Veteran is competent to testify as to such. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran, as a layperson, is not competent to report that any symptoms that he currently experiences constitute Parkinson's disease or otherwise rise to the level of a "disability" for VA purposes. Thus, while the Veteran may experience certain symptoms, his statements are not sufficient to establish a current Parkinson's disability at this time. In sum, the Board concludes that the preponderance of the evidence is against granting service connection for Parkinson's disease. As the preponderance of the evidence is against the claim, the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection for a Bilateral Hearing Loss Disability The Veteran contends that he is entitled to service connection for a bilateral hearing loss disability as a result of his in-service experiences. In order to establish service connection, there must be 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 current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). As an organic disease of the nervous system, hearing loss is a chronic disease and service connection may thus be established based on a continuity of symptomatology. 38 C.F.R. § 3.309(a) (2014); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Furthermore, service incurrence will be presumed for certain chronic diseases, including hearing loss, if manifest to a compensable degree within the year after active service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309 (2014). With regard to the presence of a current disability, the Veteran has been diagnosed with a bilateral hearing loss disability for VA purposes. See 38 C.F.R. § 3.385 (2014). Thus, a current disability is shown. With regard to an in-service event or injury, the Veteran has alleged that he was exposed to loud noise in service. The Veteran's service separation document indicates that he served in Vietnam as a combat engineer, and his related civilian occupation was a "blaster." The second Hickson element, evidence of an in-service event, disease, or injury, is accordingly met. With a current disability and an in-service event, disease, or injury of record, the remaining issue is whether there is a nexus, or connection, between the Veteran's in-service experiences and his current bilateral hearing loss disability. Turning to a review of the evidence of record, the Veteran underwent a VA examination in December 2010. The examiner noted that the Veteran's hearing thresholds were normal at all frequencies at the Veteran's entrance into service in September 1967. The examiner further noted that the Veteran's hearing thresholds were within the normal range at the Veteran's July 1970 separation examination. Additionally, the examiner noted that the audiometric testing conducted at the July 1970 separation examination showed no significant shifts at any frequency from the Veteran's entrance examination. The examiner noted the Veteran's contention that his hearing loss had an onset in 1969. The examiner noted that after service, the Veteran was a truck driver for 29 years, and the Veteran remembered hearing loud exhaust-related sounds on his left side. The Veteran did not wear hearing protection while driving trucks. Upon consideration of this evidence, the examiner concluded that it was less than likely that the Veteran's bilateral hearing loss disability resulted from his military noise exposure, taking note specifically of the lack of a significant threshold shift between service entrance and service separation. To the extent that the Veteran believes that his bilateral hearing loss disability is related to his service, the Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge and experiences through his senses. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). VA provided the Veteran with an examination based in part on the competency of those observations. Lay persons are also competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, as to the etiology of a bilateral hearing loss disability, the issue of causation of such a medical condition is a medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, although the Board has carefully considered the lay contentions of record suggesting that the Veteran's bilateral hearing loss disability is related to his service, the Board ultimately affords the objective medical evidence of record, which weighs against finding such a connection, with greater probative weight than the lay opinions, as such evidence was provided by a medical professional and concerned the functioning of the Veteran's nervous system, something that is not readily perceivable by the use of a person's senses. The Board has also considered whether the Veteran has presented a continuity of symptomatology associated with his bilateral hearing loss disability, and it finds that he has not done so. At the time of the Veteran's December 2010 VA examination, which occurred approximately 30 years after the Veteran's separation from service, the Veteran indicated that he had not previously sought treatment for hearing loss. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition now raised). While the Board acknowledges the Veteran's current contentions that he experienced symptoms associated with hearing loss consistently since service, the Board finds this contention to lack credibility given that the Veteran failed to mention these symptoms at any time for more than 30 years following service. Furthermore, at the time of the Veteran's December 2010 VA examination, the Veteran stated that his hearing loss had not affected his job as a truck driver. While neither the Veteran's failure to seek treatment for some 30 years following service, nor his own admission that his hearing loss had not interfered with his truck driving for 25 years are not dispositive facts on their own, they are factors that weigh against the Veteran's claim. Additionally, audiometric testing at separation did not show that the Veteran had a hearing loss disability. Thus, the Board finds that the weight of the evidence does not support a finding of continuous symptoms since active duty. The medical nexus element thus cannot be met via a continuity of symptomatology. Furthermore, the Board finds that a bilateral hearing loss disability was not shown within one year following separation from service, or for many years after service. Therefore, presumptive service connection is not warranted. The Board concludes that the preponderance of the evidence is against granting service connection for a bilateral hearing loss disability. As the preponderance of the evidence is against the claim, the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for Parkinson's disease is denied. Service connection for a bilateral hearing loss disability is denied. REMAND While a new VA examination is not warranted based solely upon the passage of time, VA's duty to assist includes providing a new medical examination when a veteran asserts or provides evidence that a disability has worsened and the available evidence is too old for an adequate evaluation of the current disability. Palczewski v. Nicholson, 21 Vet. App. 174 (2007); Weggenmann v. Brown, 5 Vet. App. 281 (1993); Caffrey v. Brown, 6 Vet. App. 377 (1994). The Veteran last received an examination addressing his CAD in August 2011, approximately three and a half years ago. Since that time, the Veteran has contended, for example in February 2014, that the symptoms associated with his CAD have worsened. Accordingly, the Veteran should be provided with an examination addressing the current severity and manifestations of his CAD. Accordingly, the case is REMANDED for the following actions: 1. Ensure that all treatment records of which VA has notice have been obtained and associated with the claims file. 2. Then, schedule the Veteran for a VA examination to determine the current severity of the Veteran's CAD. 3. Then, readjudicate the Veteran's claim. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. The Veteran has the right to submit additional evidence and argument on the matter that 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 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 2014). ______________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs