Citation Nr: 1529589 Decision Date: 07/10/15 Archive Date: 07/16/15 DOCKET NO. 13-09 307 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to an evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. M. Georgiev, Associate Counsel INTRODUCTION The Veteran had active service from September 1967 to September 1969. This case comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Chicago, Illinois Regional Office (RO), specifically, a rating decision dated March 2012 which denied service connection for tinnitus, and a rating decision dated February 2012 which denied service connection for a bilateral hearing loss disability and assigned an initial rating for PTSD. The Veteran had a videoconference hearing before the undersigned Veterans Law Judge in February 2014. A transcript of that proceeding has been associated with the claims file. In March 2015, the Board requested a Veterans Health Administration (VHA) expert opinion. Also in March 2015, the VHA expert provided a medical opinion. The Veteran was afforded 60 days to respond to the VHA expert opinion, and in April 2015 the Veteran indicated by a submitted statement that he had no further argument and/or evidence to submit. The issue of increased rating for PTSD has been raised by the record, (see February 2015 Veteran's statement), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this issue, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). The Board has reviewed the Veteran's paper claims file, Virtual VA, and VBMS electronic claims file to ensure a total review of the evidence. FINDINGS OF FACT 1. The Veteran notified VA in a December 2014 statement that he wished to withdraw his appeal for an increased rating for PTSD. 2. The preponderance of the evidence is against finding that the Veteran has a bilateral hearing loss disability that is etiologically related to a disease, injury, or event which occurred in service. 3. The preponderance of the evidence is against finding that the Veteran has a tinnitus disability that is etiologically related to a disease, injury, or event which occurred in service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for entitlement to an increased rating for PTSD by the appellant have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2014). 2. Service connection for a bilateral hearing loss disability is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2014). 3. Service connection for a tinnitus disability is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but is not required to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants with their claims for VA benefits upon receipt of a complete or substantially complete application. In this case, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2014); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran 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 Veteran is expected to provide. In regard to the remaining claims, a VCAA letter dated September 2010 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b)(1) (2014); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-21. The letter also explained to the Veteran how disability ratings and effective dates are determined. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA treatment records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2014). The Veteran was provided a VA examination for his claimed bilateral hearing loss and tinnitus in October 2011, and a VHA in March 2015. The examiners took into account the Veteran's reported history, his current symptoms, and review of the available private and VA treatment records. Therefore, the Board finds the examination reports to be thorough and complete and sufficient upon which to base a decision with regards to this claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As noted above, the Veteran also was afforded a hearing before the undersigned Veterans Law Judge (VLJ) during which he presented oral argument and witness testimony in support of his claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issue on appeal during the hearing and asked the Veteran targeted questions aimed at fully developing the Veteran's claim. Further, the Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, the Veteran's representative presented argument, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Withdrawal of Increased Rating for PTSD Claim By a statement received December 2014, prior to the promulgation of a decision in the appeal, the Veteran informed VA that he wished to withdraw his appeal for an increased rating for PTSD. The Board notes that in February 2015, the Veteran submitted an additional statement indicating his wish that the appeal be continued and his withdrawal be cancelled. The Veteran further submitted new evidence on the issue of PTSD which has not been considered by the RO. Because the Veteran clearly expressed a desire to withdraw the claim and his attempt to reinstate his appeal feel well after the period within one year of notice of the rating decision or within 60 days of the Statement of the Case (February 2013), the Board finds that the claim for increased rating for PTSD no longer remains on appeal. See generally 38 C.F.R. § 20.204 (2014). Accordingly, the Board finds that the attempt to reinstate the appeal is best construed as a new claim for benefits. Therefore, as noted above, the claim for entitlement to increased rating for PTSD is referred to the RO for appropriate action. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2014). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2014). Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204. In the present case, the appellant withdrew his appeal and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeals for entitlement to increased rating for PTSD and it is dismissed. Legal Criteria Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Alternatively, service connection may be established either by showing that a chronic disability or disease was incurred during service and later manifestations of such chronic disability or disease are not due to intercurrent cause(s) or that a disorder or disease was incurred during service and there is evidence of continuity of symptomatology which supports a finding of chronicity since service. 38 C.F.R. § 3.303(b). When a chronic disease becomes manifest to a degree of 10 percent within one year of a veteran's discharge from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the veteran's period of service. 38 U.S.C.A. § 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2014). In adjudicating these claims, the Board must assess the competency and credibility of the veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses' personal knowledge. Barr v. Nicholson, 21 Vet. App. 303 (2007), Layno v. Brown, 6 Vet. App. 465 (1994). Hearing Loss Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post- service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet App 155, 159 (1993). In this case, VA examinations conducted have established that the Veteran suffers from a current bilateral hearing loss disability-bilateral sensorineural hearing loss-as described in 38 C.F.R. § 3.385. Thus, the main inquiry before the Board is whether the Veteran's bilateral hearing loss is more likely than not incurred in or caused by his military service; the Board must conclude it is not, as there is no medically sound basis for attributing his hearing loss to service. The Veteran's entrance exams into military service do not reflect hearing loss by VA standards, both as stated and when converted from ASA to ISO-ANSI standards (Prior to November 1967, service department audiometric results were reported in standards set forth by the American Standards Association (ASA); since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI)). The Veteran's exit exam also does not reflect hearing loss by VA standards. In September 1967, the Veteran reported ear, nose, or throat trouble, but denied hearing loss. The Veteran appeared for a videoconference hearing before the Board in February 2014. He testified that in service he was exposed daily to weapons fire and other extreme sounds without hearing protection, causing long-term detriment to his hearing which continues to present. After his military service, the Veteran worked many years for Caterpillar Tractor Company, where he testified he was exposed to noise but consistently used hearing protection. He testified that his family has complained about him needing the radio and television volume turned up louder than normal "every day." The Veteran was first diagnosed with hearing loss in 2010 by a VA doctor, who also prescribed hearing aids. The Veteran appeared for a VA examination in October 2011 and the VA examiner completed reports and an addendum dated October 2011 and March 2012. The examiner diagnosed the Veteran with sensorineural hearing loss, but indicated that it was less likely than not related to his active service as it was diagnosed 40 years after separation. In February 2015, the Board requested a VHA to opine as to whether the Veteran's hearing loss is etiologically related to his service. Upon review of the claims file and citation of pertinent scientific research, the VHA specialist indicated his agreement with the VA examiner's opinion. The VHA specialist opined that the Veteran's bilateral hearing loss is less than likely as not caused by or the result of his military service. The specialist explained that the hearing is bilaterally within normal limits using calibrated audiometries prior to, during and/or shortly following active military service without evidence of any significant auditory threshold shift during military service, and without conclusive evidence of acoustic trauma. There is no in-service evidence of bilateral auditory system damage. The specialist indicated that he found no evidence of noise injury in the Veteran's case. The Veteran has stated that he suffers from hearing loss due to in-service noise exposure. While the Board acknowledges the Veteran's statements, crucially, lay persons are not competent to opine as to medical etiology or render medical opinions as to hearing loss. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999). Rather, it is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation. Jones v. Brown, 7 Vet. App. 134, 137 (1994); Degmetich v. Brown, 104 F.3d 1328 (1997). As a layperson, the Veteran is not competent to render a medical opinion linking the Veteran's hearing loss with his service. The Board notes that a layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). The Veteran has stated that he has suffered from hearing loss since his military service. However, while the Board weighs the Veteran's statements, the Board weighs the VA examiner's opinion and the VHA opinion that the Veteran's current hearing loss is not linked with his service more heavily, as they were rendered by medical professionals and as such are competent medical evidence. The Board most heavily weighs the October 2011 and March 2012 VA examiner's opinion and March 2015 specialist's VHA opinion, both which contain extensive rationale and constitute competent medical evidence. Both opinions found, upon consideration of the record and Veteran's reports, as well as examination of the Veteran, the Veteran's current hearing loss less likely to be related to his service. In light of the foregoing, the Board concludes that the claim of entitlement to service connection for bilateral hearing loss disability must be denied, upon weighing the October 2011 and March 2012 VA examiner's opinion and March 2015 VHA examiner's report most heavily, as competent medical evidence of record establishing a negative nexus. While the Board has considered the Veteran's lay assertions, the Board ultimately finds them to be outweighed by the conclusions of the VA health care specialists, who considered his report, but also considered the results of contemporaneous objective testing. Furthermore, although the Veteran now asserts an onset in service and continuity thereafter, the Board must find those assertions not credible in light of his denial of hearing difficulty at separation. The preponderance of the evidence is against the Veteran's claim and the doctrine of reasonable doubt is not applicable in the instant appeal. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102. Tinnitus The Board must also conclude that the Veteran's claimed tinnitus was incurred in or aggravated by his military service, as there is no medically sound basis for attributing the tinnitus to service. The Veteran's STRs contain no mention of or complaints of tinnitus. Again, the Veteran's entrance and exit exams do not reflect hearing loss by VA standards. In September 1967, the Veteran reported ear, nose, or throat trouble, but denied hearing loss. A VA treatment record reflects that the Veteran first reported tinnitus in February 2010, several decades after service. During the February 2014 hearing, the Veteran testified that in service he was exposed daily to weapons fire and other extreme sounds without hearing protection, causing long-term detriment to his hearing which continues to present. The Veteran further testified that he has had tinnitus/ ringing in his ears since Vietnam, and that his tinnitus probably started in Vietnam. After his military service, the Veteran worked many years for Caterpillar Tractor Company, where he testified he was exposed to noise but consistently used hearing protection. The Veteran appeared for a VA examination in October 2011 and the VA examiner completed reports and an addendum dated October 2011 and March 2012. The examiner diagnosed the Veteran with sensorineural hearing loss, but indicated that it was less likely than not related to his active service. The examiner also noted that the Veteran's tinnitus was at least as likely as not a symptom associated with his hearing loss. The March 2015 VHA specialist indicated the Veteran's tinnitus is less than likely as not caused by or a result of his service. Again, the specialist noted no STR evidence of tinnitus, no sign of in-service acoustic trauma and/or auditory damage, and no evidence of noise injury. The specialist explained that current tinnitus, if any, can be secondary to a wide variety of physical, medical, psychological and pharmaceutical concerns. The specialist found no medical evidence to relate the Veteran's tinnitus disability to his service. The Board acknowledges and weighs the Veteran's statements that he has suffered from tinnitus since service and as related to service, and notes that the Veteran is competent as a layperson to testify to suffering from tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). The Board has considered the case of Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (lay evidence of medical symptoms does not need be accompanied by contemporaneous medical records). Further, the Board notes that a layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, in this case, the Board gives most weight to the 2011 and March 2015 reports, competent medical evidence rendered by medical professionals, that both opine that the Veteran's tinnitus is less likely than not etiologically related to his service. These opinions were rendered by health care providers with the training and experience necessary to render medical opinion on the causes and etiology of hearing related disability. Further, the record reflects the Veteran first complained of tinnitus decades after service; as such, there is no objective evidence of continuity of symptomatology. To the extent that the Veteran asserts an onset in service and continuity thereafter, the Board must find those assertions not credible in light of his denial of hearing difficulty at separation. In sum, the Board concludes that the preponderance of the evidence of record is against the Veteran's claim for service connection for a tinnitus disability, as the record weighs the tinnitus's etiological link to service. The benefit-of-the-doubt doctrine enunciated in 38 U.S.C.A. § 5107(b) is not applicable, as there is no approximate balance of evidence. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for a bilateral hearing loss disability is denied. Service connection for a tinnitus disability is denied. The appeal for entitlement to an increased rating for PTSD is dismissed. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs