Citation Nr: 1638480 Decision Date: 09/29/16 Archive Date: 10/13/16 DOCKET NO. 11-18 430 ) 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 recurrent tinnitus. 3. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service in the U.S. Navy from June 1967 to March 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a VA Decision Review Officer (DRO) in October 2012. A transcript of the hearing is of record. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, bilateral hearing loss for VA purposes is etiologically related to active service. 2. Resolving all doubt in the Veteran's favor, recurrent tinnitus is etiologically related to active service. 3. The Veteran has not been diagnosed with a chronic lumbar spine disability at any point during the appeal period. CONCLUSIONS OF LAW 1. Bilateral hearing loss was incurred in active service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.385 (2015). 2. Recurrent tinnitus was incurred in active service. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309(a) (2015). 3. A low back disability was not incurred in or aggravated by active duty service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 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) (2015). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has been provided notice letters throughout the appeal that address all notice elements required. There has been no allegation of notice error in this case. See Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A ; 38 C.F.R. § 3.159 (2015). Service treatment records are associated with claims file. All post-service treatment records identified by the Veteran have also been obtained. To the extent the Veteran has suggested additional private treatment records may be outstanding, the Board notes that he has neither provided the necessary authorization forms to allow VA to obtain these records nor submitted the records on his own, despite multiple requests to do so. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (2015). A VA examination was not provided in conjunction with the Veteran's claim of service connection for a lumbar spine disability. See 38 C.F.R. § 3.159(c)(4) (2015); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). As discussed in further detail below, there is nothing in the record, other than the Veteran's own lay statements, that he currently suffers from a low back disability that is etiologically related to his active service. See Waters v. Shinseki, 601 F.3d 1274, 1279 (Fed. Cir. 2010) (the Veteran's conclusory lay statement alone is insufficient to trigger VA's duty to provide an examination with an opinion). The elements of McLendon have not been satisfied; therefore, VA is not required to provide the Veteran with a VA examination in conjunction with this claim. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C.A. § 7104 (West 2014). The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. Generally, to establish service connection, a claimant 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). Bilateral Hearing Loss & Recurrent Tinnitus The Veteran asserts he is entitled to service connection for bilateral hearing loss and recurrent tinnitus as directly related to his period of active service. Specifically, he contends that he was exposed to significant acoustic trauma from working extended periods around steam turbines without hearing protection and currently suffers from hearing loss due to this acoustic trauma. Initially, upon review of the Veteran's service records, the Board finds evidence supports the Veteran's assertion of in-service acoustic trauma. 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 at 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, and 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 (2015). Both private and VA audiological testing indicates the Veteran currently suffers from bilateral hearing loss for VA purposes. See 38 C.F.R. § 3.385. Further, tinnitus is the type of disorder associated with symptoms capable of lay observation (e.g., ringing or buzzing in the ears). See Charles v. Principi, 16 Vet. App. 370 (2002). Therefore, the Veteran's credible statements regarding such symptomatology is sufficient to establish a current diagnosis of recurrent tinnitus. The Veteran's service treatment records do not reveal complaints or a diagnosis of either hearing loss or tinnitus and, based on a lack of any such evidence, an August 2009 VA examination report indicates the VA examiner could not render an etiological opinion without resorting to speculation. In July 2010, the Veteran submitted a medical opinion from a private otolaryngologist. In this opinion, Dr. T.C. acknowledged the Veteran's significant post-service noise exposure as a railroad conductor, but opined that the Veteran's bilateral hearing loss and tinnitus are likely "about 20%" due to his military acoustic trauma exposure. Furthermore, with regard to tinnitus, the Veteran testified at the October 2012 DRO hearing that he began to notice ringing in his ears during service, and these symptoms have persisted since. See DRO hearing transcript at 9. In the instant case, the Board acknowledges the Veteran's admittedly significant post-service occupational acoustic trauma experienced while working for years as a railroad conductor. However, it is reasonable to interpret the July 2010 private medical opinion that at least some of the Veteran's current bilateral hearing loss and tinnitus may be attributed to his active service. "A Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in "relative equipoise, the law dictates that the Veteran prevails." Id. As such, resolving all doubt in the Veteran's favor, the Board finds that service connection for bilateral hearing loss and recurrent tinnitus is warranted. Low Back Disability The Veteran also asserts that he suffers from a low back disability as a result of an in-service spinal tap procedure. In this regard, he has stated that he has suffered from low back pain off and on since this procedure, and was at some point diagnosed with a slipped disc. Initially, the Board notes that the Veteran's service treatment records are absent a diagnosis of a chronic low back disability during service. The report of a March 1971 Report of Medical Examination, conducted at service discharge, indicates a normal clinical examination of the spine and musculoskeletal system. Furthermore, there is no competent evidence to support a finding that the Veteran has been diagnosed with a lumbar spine disability at any point during the appeal period. In this regard, while the Veteran testified that he sought treatment for and was diagnosed with a low back disability approximately 20 years ago, he has not submitted any such records and has not provided the necessary releases to allow VA to obtain these records. In any event, the Board notes the Veteran himself testified that he has not sought treatment for a low back condition in the last 20 years. See DRO hearing transcript at 20-21. The Board acknowledges the Veteran's complaints of low back pain, and that he is competent to report such symptomatology. However, pain is not, in and of itself, a disability for the purposes of service connection. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (holding that pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted), appeal dismissed, 259 F.3d 1356 (Fed. Cir. 2001). The Veteran is not shown to have the medical expertise required to competently diagnose himself with a chronic low back disability. See Davidson v. Shinseki, 581 F.3d 1313 (2009). To prevail on the issue of service connection, there must be medical evidence of a current disability at some point during the pendency of the claim. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992) (in the absence of proof of a present disability, there can be no valid claim for service connection as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability). The Board concludes that the preponderance of the evidence is against the claim for service connection for a low back disability. The benefit of the doubt rule therefore does not apply, and service connection for a low back disability is not warranted. See 38 U.S.C.A. § 5107 (West 2014). ORDER Service connection for bilateral hearing loss is granted. Service connection for recurrent tinnitus is granted. Service connection for a low back disability is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs