Citation Nr: 1604978	
Decision Date: 02/09/16    Archive Date: 02/18/16

DOCKET NO.  08-24 356	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.   Entitlement to service connection for a left wrist disability.

2.  Entitlement to service connection for a bilateral hearing loss disability.

3.  Entitlement to service connection for tinnitus.

4.  Entitlement to service connection for a respiratory disability, to include chronic obstructive pulmonary disease (COPD).


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

J. Henriquez, Counsel


INTRODUCTION

The Veteran had active duty service from May 1969 to July 1971 and from February to August 1974 with additional service in the Army National Guard.

This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  Jurisdiction of the case was subsequently transferred to the RO in St. Petersburg, Florida.

In August 2009 and August 2014, the Board remanded the claims for further development.

The issues of entitlement to service connection for esophageal cancer and for lung cancer, both claimed as due to exposure to contaminated water at Camp Lejeune, have been raised by the record in a June 2015 statement, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2015). 

The issue of entitlement to a respiratory disability, to include COPD, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  No left wrist disability resulting from service is shown.

2.  No hearing loss disability of either ear has been present during the pendency of this claim.  

3.  The Veteran has tinnitus that is likely attributable to noise exposure during military service.


CONCLUSIONS OF LAW

1.  The criteria for service connection for a left wrist disability have not been met.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015).

2.  The criteria for service connection for a bilateral hearing loss disability have not been met.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.385 (2015).

3.  The criteria for service connection for tinnitus have been met.  38 U.S.C.A. 
§ 1110 (West 2014); 38 C.F.R. § 3.303 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision, the Board grants entitlement to service connection for tinnitus which constitutes a complete grant of the claim.  Therefore, no discussion of VA's duty to notify or assist is necessary with respect to this claim.

With respect to the claims for service connection for a left wrist disability and for a bilateral hearing loss disability, the requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met.  There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in January 2007, prior to the initial adjudication of the claims, of the information and evidence needed to substantiate and complete the claims, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. 

VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, to include obtaining private and VA treatment records.  The Veteran underwent a VA examination with respect to his claim for service connection for bilateral hearing loss but not for his claim for a left elbow disability.  In this instance, although the Veteran reported injuring his left wrist in service, there is no evidence of a left wrist disability in any of the post-service treatment records thus, a VA examination is not required under the provisions of McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).    

 Accordingly, the Board will address the merits of the Veteran's claims.

Service Connection

A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service.  38 U.S.C.A. § 1110. 

Generally, to provide service connection, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

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).

In a service connection claim, the threshold question is whether the Veteran actually has the disability for which service connection is sought.  In the absence of proof of present (at any time during the pendency of the claim, see McClain v. Nicholson, 21 Vet. App. 319, 323 (2007)) disability, there can be no valid claim of service connection.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The requirement of a current disability may be met by evidence of symptomatology at the time of filing or at any point during the pendency of the claim.  McClain, 21 Vet. App. at 323.

Left Wrist Disability

The Veteran is seeking service connection for a left wrist disability.  He claims that he injured his left wrist in service while playing ball.  

The service treatment records do not show any complaints or treatment pertaining to the left wrist.

Post-service, private and VA treatment records of record fail to show any treatment or a diagnosis of a left wrist disability.

In this case, there is no evidence of record to show that the Veteran has a left wrist disability.  The Veteran has identified private and VA treatment records which have been obtained but they make no reference to any symptoms or complaints with respect to the left wrist.  It is the Veteran's general evidentiary burden to establish all elements of the claim, including evidence of a current disability.  38 U.S.C.A. 
§ 5107(a); Fagan v. Shinseki, 573 F.3d. 1282, 1286 (Fed. Cir. 2009).  In this instance, the Veteran has not provided any medical evidence showing treatment or diagnosis of any left wrist disability since separation.  Nor has he provided any lay statements regarding symptomatology or any functional limitations.  Without any evidence of a current disability, the claim must fail.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

Bilateral Hearing Loss Disability

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 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz 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.

The Veteran is seeking service connection for bilateral hearing loss.  He contends that he was exposed to excessive noise during active duty in the Marine Corp as a machine gunner.  The record supports the Veteran's job duties during service.  Thus, the Board concedes that the Veteran was exposed to acoustic trauma.     

The Veteran underwent a VA audiology consultation in July 2006.  On audiological evaluation, pure tone thresholds, in decibels, were as follows:


HERTZ

500
1000
2000
3000
4000
RIGHT
10
10
10
10
10
LEFT
15
5
10
10
20

Speech audiometry revealed speech recognition ability of 100 percent in the both ears.  The examiner commented that the Veteran had normal hearing in both ears.

In April 2008, the Veteran underwent a VA audiology examination.  On audiological evaluation, pure tone thresholds, in decibels, were as follows:


HERTZ

500
1000
2000
3000
4000
RIGHT
15
5
10
15
15
LEFT
15
15
15
15
30

Speech audiometry revealed speech recognition ability of 98 in the right ear and of 96 in the left ear.  The examiner commented that the Veteran had clinically normal hearing in the right ear and left ear hearing loss which was not disabling pursuant to 38 C.F.R. § 3.385.

As noted above, the Veteran served as machine gunner during his service and had considerable noise exposure from various military weapons.  Even conceding that the Veteran was exposed to artillery noise during service, there is no evidence showing that the Veteran has had sufficient hearing loss in either ear to qualify as a disability for VA compensation purposes.  Therefore, the Board concludes that the preponderance of the evidence establishes that a bilateral hearing loss disability has not been present at any time during the pendency of this claim.  Accordingly, service connection for bilateral hearing loss cannot be established at the present time as there is no disability under 38 C.F.R. § 3.385.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

Tinnitus

The Veteran contends that his tinnitus began in service due to noise exposure from weapons fire while serving as a machine gunner.  An April 2008 VA examiner offered the opinion that the Veteran's tinnitus, if present, was not the result of his military service.  However, the Veteran is considered competent to provide evidence regarding symptoms he has experienced, such as ringing in the ears for many years.  His statements as to noise exposure are consistent with the circumstances of his service and the Board finds such statements credible.  The Board further notes that certain conditions, such as organic disease of the nervous system (to include tinnitus) are chronic diseases under 38 C.F.R. § 3.309(a).  Pursuant to Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), service connection solely on the basis of evidence of continuity of symptomatology is permissible for chronic diseases.  Thus, even in the absence of a favorable nexus opinion, an award of service connection for tinnitus is appropriate here. 

In sum, the evidence is at least in equipoise and Veteran is entitled to the benefit of the doubt and the grant of service connection.  38 U.S.C.A. § 5108(b).


ORDER

Service connection for a left wrist disability is denied.

Service connection for a bilateral hearing loss disability is denied.

Service connection for tinnitus is granted.


REMAND

With respect to the Veteran's claim of entitlement to service connection for a respiratory disability, the medical evidence of record reflects diagnoses of COPD and asthma.  See May 2006 VA outpatient treatment records and a December 2014 VA examination report.  However, there is no medical opinion as to the etiology of such disabilities. Therefore, a remand is required in order to obtain an opinion as to the etiology of these disabilities.

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any respiratory disability, to include COPD and asthma.  Any and all studies, tests, and evaluations deemed necessary by the examiner(s) should be performed.  The appropriate examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. 

The examiner should provide diagnoses for all current disabilities.  The examiner should then state an opinion as to whether it is at least as likely as not (50 percent or better probability) that any current respiratory disability, to include COPD and asthma, is/are causally or etiologically related to his military service.  

A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  Because it is important "that each disability be viewed in relation to its history [,]"38 C.F.R. § 4.1 (2015), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 

2.  The RO must then readjudicate the claim and, thereafter, if the claim on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case.  After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.
  
The appellant has the right to submit additional evidence and argument on the matter or 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 2014).





______________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs