Citation Nr: 1547270 Decision Date: 11/09/15 Archive Date: 11/13/15 DOCKET NO. 12-13 242 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Rory D. Mortimer, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Parke, Associate Counsel INTRODUCTION The Veteran had active duty from March 1967 to October 1968 with additional service in the Navy Reserve. This appeal is before the Board of Veterans' Appeals (Board) on appeal from July 2009 and August 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in support of these claims during a videoconference hearing held at the RO before the undersigned Veterans Law Judge (VLJ) in July 2015. This appeal was processed entirely electronically using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. The issue of entitlement to service connection for posttraumatic stress disorder has been raised by the record in a May 2012 VA Form 9, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). FINDINGS OF FACT 1. With resolution of the doubt in his favor, the Veteran's bilateral hearing loss was caused by military service. 2. With resolution of the doubt in his favor, the Veteran's tinnitus was caused by military service. 3. The Veteran's low back disorder was not caused by his active military service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for bilateral hearing loss are met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102 , 3.303, 3.307, 3.309(a) (2015). 2. The criteria to establish service connection for tinnitus are met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102 , 3.303, 3.307, 3.309(a) (2015). 3. The criteria to establish service connection for a low back disorder are not met or approximated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102 , 3.303, 3.307, 3.309(a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2015), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2014) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided all required notice in letters sent in April 2009 and March 2010. All available relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible. The evidence of record includes the Veteran's Report of Separation Form (DD Form 214), service treatment records, service personnel records, VA medical records, private medical records, and lay statements from the Veteran. VA's duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Appropriate VA medical inquiry was accomplished, and the VA medical examination reports and VA medical opinions are factually informed, medically competent, and responsive to the issues under consideration. Monzingo v Shinseki, 26 Vet. App. 97 (2012); Barr v. Nicholson, 21 Vet. App. 303 (2007). Regarding the Veteran's videoconference hearing before the Board, 38 C.F.R. § 3.103(c)(2) requires that a VLJ fully explain the issues and suggest the submission of evidence that may have been overlooked and that may be potentially advantageous to the claimant's position. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the Veteran's hearing all parties agreed as to the issues on appeal. The parties also generally discussed evidence contained in the record and the sources of treatment the Veteran had received for the disabilities he is claiming. There is no indication there is any outstanding, obtainable evidence pertinent to this claim. The duties under Bryant have been met. To the extent there were any shortcomings, the Veteran was not prejudiced because of the lack of any further obtainable pertinent evidence. Moreover, in his hearing testimony he evidenced his actual knowledge of the type of evidence and information needed to substantiate this claim. Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate the claim). Consistent with Bryant, the presiding VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). All necessary assistance has been provided to the Veteran. The Veteran has not identified any outstanding evidence that could be obtained to substantiate the claim. The Board is unaware of any such evidence. Service Connection The Veteran alleges that his bilateral hearing loss and tinnitus were caused by noise exposure during his active military service. The Veteran also alleges that he injured his back when he fell from a catwalk on a ship during his active military service. Service connection is granted for disabilities resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In order for a disorder to be service connected, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 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 facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet.App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet.App. 303 (2007) (concerning varicose veins); see also Charles v. Principi, 16 Vet.App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet.App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet.App. 456 (2007) (concerning rheumatic fever). Bilateral Hearing Loss and Tinnitus The Veteran credibly testified that he experienced acoustic trauma while on active military service through qualifying on two different firearms, chipping paint from a ship, and when a weapon was accidentally discharged in an enclosed space while he was present. The Veteran alleges that he didn't have hearing protection during any of these incidents. The Veteran was afforded a May 2011 VA contract audiological examination. The examination showed that the Veteran has hearing loss for VA purposes. The examiner opined that the Veteran's hearing loss was due to his military service. The Veteran reported bilateral constant tinnitus at his May 2011 VA contract audiological examination. The examiner stated that the Veteran's tinnitus was at least as likely as not a symptom associated with his hearing loss and acoustic trauma. Given that the Veteran's account of his hearing loss and tinnitus occurring during active military service has been consistent and that further medical development would not likely determine with any degree of precision when his bilateral hearing loss and tinnitus developed, the Board affords the benefit of the doubt to the Veteran and grants the claims. Low Back Condition The Veteran alleges that while serving on the U.S.S. Samuel Gompers he was caught in a cable, pulled off the catwalk where he was standing, and fell fifteen feet to the deck below. He alleges that he was taken to the ship's hospital, where his finger was treated. He contends that he was told by Dr. C.S., who performed his back surgery in 1996, that he must have "experienced a terrific fall at some point in [his] life to cause the damage that had calcified [his] vertebrae to a splinter the size of [his] little finger." The Veteran has submitted an April 2010 "buddy statement" from a fellow service member, T.S. who states that in approximately August 1967 he witnessed the Veteran fall from a fifteen foot high catwalk to the deck below while aboard the Samuel Gompers. He contends that the Veteran was taken to a hospital and the Veteran complained of back pain after the fall. The Veteran's service treatment records do not show any treatment for a finger injury or a back injury. There are no complaints of back pain in the Veteran's service treatment records. The Veteran was provided with a medical examination in August 1965, where his spine examination was marked as normal and a 1/4 inch scar was healed on his left hand. Medical examinations dated in November 1966 and October 1968 are consistent with the earlier report. The Veteran completed a report of medical history in connection with his July 1971 medical examination. The Veteran reported that he had no recurrent back pain and that he had no other illness or injury other than those he had noted. The Veteran only noted childhood ailments in his report of medical history. The Veteran did not report any fall in his July 1971 report of medical history. The Veteran's spine examination was normal during his July 1971 medical examination. The Veteran has submitted private treatment records from 1995 and 1996 from Dr. C.S. and Munson Medical Center. The Veteran's January 1995 record shows that the Veteran complained of two months or so of pain in his lower back. In February 1996, the Veteran had a herniated lumbar disc at L4-L5 and a diskectomy was performed. The Veteran was afforded a VA medical examination in June 2011. The Veteran was diagnosed with spondylosis with degenerative disc disease at L4-L5 and L5-S1. There was no compression fracture or spondylolisthesis. The examiner opined that the Veteran's back symptoms were related to some trauma. However, the examiner stated that without supporting documentation to corroborate the Veteran's claim, he was unable to provide an opinion as to whether the Veteran's current condition was related to his military service. The Veteran's service treatment records and particularly his July 1971 medical examination and report of medical history are highly probative both as to the Veteran's subjective reports and their resulting objective findings. They were generated with a view towards ascertaining the Veteran's then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). The June 2011 VA medical examiner opined that the Veteran's back symptoms were related to some trauma. This is consistent with what the Veteran testified that he was told by Dr. C.S. However, beyond the Veteran's testimony and the statement of T.S., there is no evidence that this incident occurred. Such a fall as alleged by the Veteran would have undoubtedly been recorded in his service medical records. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred) (Lance, J., concurring); AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing and applying the rule that the absence of a notation in a record may be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred, although holding that a veteran's failure to report an in-service sexual assault to military authorities may not be considered as relevant evidence tending to prove that a sexual assault did not occur because military sexual trauma is not a fact that is normally reported); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011)(the absence of a notation in a record may only be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred). The Veteran did not seek treatment for his low back condition until 1996, twenty-eight years after he left active military service. While the Veteran is competent to report symptoms, he is not competent to opine on a complex question of the etiology of a low back condition. The Veteran testified that he was treated for an injury to his finger but that he did not initially complain about his back. However, his service treatment records do not show any treatment for his finger. Additionally, his entrance medical examination shows that he had a healed scar to his left hand when he entered military service, and to that extent, the credibility of his account of the in-service incident is also diminished. Service connection is denied. In arriving at this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. Service connection for a low back disorder is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs