Citation Nr: 1624909	
Decision Date: 06/21/16    Archive Date: 07/11/16

DOCKET NO.  11-16 264	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


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 right shoulder disorder.



REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

D. Van Wambeke, Counsel


INTRODUCTION

The Veteran served on active duty in the Army Reserve from January 2003 to August 2003 and in the Army from November 2006 to May 2007, along with additional reserve service. 

These matters come to the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which denied the claims.  

The claims were remanded by the Board in June 2015 in order to schedule the Veteran for her requested videoconference hearing.  The hearing was scheduled   for January 2016, but the Veteran subsequently withdrew the request.

The current record before the Board consists entirely of electronic files known as Virtual VA and the Veterans Benefits Management System (VBMS).  


FINDINGS OF FACT

1.  The Veteran does not have a current hearing loss disability for VA purposes. 

2.  The Veteran has not reported continuous symptoms of tinnitus since service or since her discharge from service, and the probative evidence of record does not establish that her current tinnitus is related to service.  

3.  There is no competent and credible evidence of a right shoulder injury or disability during service.  



CONCLUSIONS OF LAW

1.  The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.385 (2015).

2.  The criteria for service connection for tinnitus have not been met.  38 U.S.C.A. §§ 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015).

3.  The criteria for service connection for a right shoulder disability have not been met.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act

Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015).

The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain.  38 C.F.R. § 3.159(b) (2015).  Compliant VCAA notice was provided in November 2009.  

In addition, the Board finds that the duty to assist a claimant has been satisfied.  The Veteran's service personnel and treatment records are on file, as are various post-service medical records, to include available private treatment records.  A VA audiological examination has been conducted and an opinion obtained.  

The Board acknowledges that no medical examination or opinion was obtained in regards to the claim for service connection for a right shoulder disorder.  However, no examination or opinion is needed because there is no competent and credible evidence of an in-service right shoulder injury or disability.  See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible, a VA examination is not required).

The Board also notes that actions requested in the prior remand have been undertaken.  VA obtained the Veteran's current address and the requested Board videoconference hearing was scheduled.  Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary.  See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)).  

After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  

Service Connection

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R.  § 3.303.  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)).  Regulations also provide that 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).

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).  

Service connection for certain chronic diseases, to include organic diseases of the nervous system and arthritis may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service.  38 C.F.R. § 3.307(a).  

The Board has reviewed all the evidence in the record.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim.      See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake      v. Gober, 14 Vet. App. 122, 128-30 (2000).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA.  VA shall consider all information and medical and lay evidence of record.  Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the 
claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Hearing Loss and Tinnitus

For claims for service connection for hearing loss or impairment, VA has specifically defined what is meant by a "disability" for the purposes of service connection.  38 C.F.R. § 3.385.  "[I]mpaired 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, or 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 threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  See Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

The Veteran essentially contends that she developed bilateral hearing loss and tinnitus during or as a result of her active service.  In her original claim for service connection, she reported tinnitus began in approximately June 2000 and that she had bilateral hearing loss and tinnitus as a result of exposure to acoustic trauma during service.  In a VA Form 9 received in April 2011, the Veteran noted that    she constantly had ringing in her ears.  In a January 2016 VA Form 21-4138, the Veteran indicated that she was assigned to maintenance units while on active duty and part of her duties required her to obtain and maintain operator licenses for military vehicles, which exposed her to loud noise without hearing protection.  

Service treatment records show that the Veteran was routinely exposed to noise, but are devoid of reference to complaint of, or treatment for, problems with hearing acuity or ringing of the ears/tinnitus.  At the time of a March 2005 Army Reserve retention examination and a March 2007 Army active duty separation examination, the Veteran denied ear, nose or throat trouble, hearing loss or wearing a hearing aid, and clinical evaluation of her ears was normal at these times.  See reports of medical history and medical examination.  

The available post-service medical evidence includes VA and private treatment records and a VA audiological examination.  

The Veteran underwent a VA audiological examination in September 2010.  The examiner noted that her hearing was normal on the initial entrance examination in April 2000 as well as on a March 2007 separation examination.  The Veteran reported that during service, she had worked as a supply specialist in a warehouse and worked next to a noisy shop area and that she also had to do weapons qualification for deployment.  While in the Reserve, the Veteran worked at a Tyson meat packing plant where she regularly worked around semi-trucks in a confined area.  In regards to the tinnitus, the Veteran recalled having a buzzing noise in her ears about three years into service, in 2003 or early 2004.  It was noted to be constant.  

On the authorized audiological evaluation conducted in September 2010, pure tone thresholds, in decibels, were as follows: 




HERTZ



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

Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 94 percent in the left ear.  

The September 2010 VA examiner determined that the Veteran had normal bilateral hearing sensitivity and that she did not incur a permanent hearing loss as a result of acoustic trauma during military service.  In regards to the tinnitus, the examiner provided an opinion that because there was no associated hearing loss at separation from the military, it is not as likely as not that the current tinnitus was from military noise exposure.  

The preponderance of the evidence is against a finding of service connection for bilateral hearing loss.  The Board notes that the results of audiometric testing do not reflect a bilateral hearing loss disability for VA purposes.  See 38 C.F.R. § 3.385.   A current disability is the cornerstone of a claim for VA disability compensation  and in the absence of proof of a present disability, there can be no valid claim.  See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992).  The VA examination reveals the Veteran's hearing is within normal limits for VA purposes and thus, a disabling hearing loss is not shown.  Without evidence of a current bilateral hearing loss disability for VA purposes, service connection is not warranted and the claim must be denied.  See 38 C.F.R. §§ 3.303, 3.385.  

The preponderance of the evidence is also against a finding of service connection for tinnitus.  The Veteran is competent to report that she was exposed to acoustic trauma in service and that she experienced tinnitus in service.  However, she        has been inconsistent in her reports of onset of tinnitus.  On her application, she indicated the condition began in 2000; during her VA examination she stated it occurred three to four years into her service, maybe in 2003 or early 2004.  Such statements suggest she has not differentiated between active duty and reserve service.  Moreover, the Veteran denied ear, nose or throat trouble at the time of       a March 2005 Reserve retention examination and at the time of her March 2007 separation examination.  None of the post-service evidence of record, to include   the statements submitted by the Veteran in support of her claim, reference that she has had continuous symptoms of tinnitus since service, or within one year of her May 2007 discharge from service.  In addition to the foregoing, the examiner who conducted the September 2010 VA examination provided an opinion that it is not  as likely as not that the Veteran's current tinnitus was from military noise exposure because there was no associated hearing loss at separation from the military.  This opinion, which stands uncontroverted in the record, is afforded high probative value.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion).  

In the absence of evidence that the Veteran has had continuous symptoms of tinnitus since active service, service connection is not warranted on a direct basis.  See 38 C.F.R. § 3.303.  In the absence of evidence that the Veteran exhibited tinnitus within one year of her May 2007 discharge from service, service connection is also not warranted on a presumptive basis.  See 38 C.F.R. §§ 3.307, 3.309.  

In reaching the above conclusion, 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 in the instant appeal.  See 38 U.S.C.A. § 5107(b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed.     Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).  

Right Shoulder

The Veteran essentially contends that she developed a right shoulder disorder during her active service.  In her original claim for service connection, she reported her right shoulder condition began in approximately February 2003.  In a March 2010 VA Form 21-4138, she reported that she injured her shoulder in an accident during a drill weekend in approximately April 2006.  In a November 2010 VA Form 21-4138, the Veteran indicated that her shoulder started coming out of the socket when she was 18 or 19, and every year it came out more and more.  In a VA Form 9 received in April 2011, the Veteran noted that she never had any problems with her shoulder until she joined the Army Reserve.  In a January 2016 VA Form 21-4138, the Veteran indicated that she was required to move and carry heavy equipment while on active duty, which damaged her right shoulder, and that she  did not seek medical treatment due to peer pressure.  

Service treatment records are devoid of complaint of or treatment for, problems with the right shoulder.  On a July 2003 post-deployment questionnaire, the Veteran denied joint pain or stiffness or tingling in the hands.  She stated her health was excellent.  On Reports of Medical History at the time of a March 2005 Army Reserve retention examination and a March 2007 Army active duty separation examination, the Veteran denied painful shoulder; arthritis, rheumatism or bursitis; numbness or tingling; swollen or painful joints; or bone or joint deformity.  Clinical evaluation of her upper extremities was normal at these times.  

The available post-service medical evidence includes VA and private treatment records.  The Veteran was seen at the emergency room in May 2006, which the Board notes was approximately 31/2 years prior to when she filed her claim and approximately 6 months before her second period of active duty service.  At this time, it was noted that she had been the passenger in the rear of a car that was involved in a rollover accident.  It was reported that she had impacted her right shoulder with her own weight against the inside of the compartment of the vehicle and dislocated it, clinically inferiorly and possibly anteriorly.  It was noted that she had had injury to her shoulder before, but did not go into detail.  The impression was right clinical shoulder inferior/anterior dislocation with vague history of old dislocation with pain.  

In an October 2009 VA treatment report, the Veteran complained that her right shoulder felt unstable.  She reported that she first started noticing right shoulder instability when she was shooting a basketball while in high school.  She stated   she had no real injury, trauma, or fall and had no treatment.  She stated that in 2005 she suffered what sounded to the clinician like a complete dislocation after a motor vehicle accident.  She told the clinician that she had not been to physical therapy   or subsequently seen a physician for the problem.  She stated that she had a recent dislocation where she was reaching overhead to place a blanket on a shelf and felt her right shoulder go out.  Examination showed full range of motion, full rotator cuff strength, negative cross chest test, negative impingement sign, but mildly positive apprehension test.  The assessment was right shoulder instability.

Upon review of the record, the Board finds that service connection for a right shoulder disability is not warranted.  The Veteran has been diagnosed with right shoulder instability, and has a history of right shoulder dislocation following a motor vehicle accident in 2006.  Accordingly, the Board finds there is a current disability for purposes of continuing the service-connection analysis.

However, the Board finds that there is no competent and credible evidence of an    in-service event to support the claim.  During the course of the claim, the Veteran's report of onset or injury to the right shoulder has varied.  On her initial claim, she stated the right shoulder problems began approximately February 1, 2003 (i.e. during active duty).  On her March 2010 notice of disagreement, she stated the injury occurred in a motor vehicle accident in approximately April 2006 during a reserve drill weekend.  During an informal conference with a Decision Review Officer, however, after being advised of what constitutes active and inactive       duty training periods, she indicated that the accident did not occur during a drill weekend.  In a November 2010 statement she stated her shoulder started coming out of socket when she was 18 or 19 years old (close in time to basic training in 2000) and that every year it comes out more frequently.  In April 2011 she stated she never had problems with her shoulder until she joined the reserves.  However, during October 2009 VA treatment, the Veteran reported that she first started noticing right shoulder instability when she was shooting a basketball while in high school.  She stated she had no real injury, trauma, or fall and had no treatment until the motor vehicle accident.  Additionally, the Veteran denied impaired use of the arms, swollen or painful joints, bone or joint deformity, painful shoulder, and arthritis, rheumatism or bursitis on the report of medical history prepared for separation in 2007. 

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown,    7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

Here, her reports of onset of right shoulder problems ranged from high school, to around the time of basic training in 2000, to a month after entering active duty in 2003, to the 2006 motor vehicle accident.  The first medical evidence of record mentioning the right shoulder was the treatment at the time of the motor vehicle accident in 2006.  During that treatment, she provided a vague history of prior problems, but made no mention of military service as part of that history.  Her service treatment records reveal no complaints or findings concerning her right shoulder, which would be likely if she had repeated dislocations as suggested by  her statements.  See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing  the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present).  Moreover, while she has indicated that she did not seek treatment in service due to peer pressure, it is unclear why she would not have reported a history of shoulder problems on the separation report of medical history, at which time she did mention symptoms described as pertaining to "a common cold" occurring in January 2007, dental cavities, and an adverse reaction to a yeast medication in March 2004.  

In sum, the Board finds the Veteran's report of an in-service injury or in-service onset of a right shoulder disability is not reliable or persuasive, due to the varying accounts as to the onset of shoulder problems, the denial of shoulder problems on the report of medical history in 2007, and the lack of any complaints or findings of a right shoulder disability in service treatment records.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records, the significant time delay between the affiants' observations and the date on which the statements were written, and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence).  Rather, the evidence shows a right shoulder dislocation in conjunction with a motor vehicle accident while not on military duty.  

In the absence of competent and credible evidence of an in-service right shoulder condition or injury, the claim for service connection must be denied.

In reaching the above conclusion, 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 in the instant appeal.  See 38 U.S.C.A. § 5107(b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed.      Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).


ORDER

Service connection for bilateral hearing loss is denied.

Service connection for tinnitus is denied.

Service connection for a right shoulder disorder is denied.



____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs