Citation Nr: 1647203 Decision Date: 12/19/16 Archive Date: 12/30/16 DOCKET NO. 14-28 698 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial compensable evaluation for limitation of extension of the left forearm, claimed as a left forearm injury, associated with residuals of extensive laceration of left arm and forearm status post motor vehicle accident. 2. Entitlement to an initial evaluation in excess of 10 percent for left wrist residual weakness and limited range of motion, claimed as a left wrist injury, associated with residuals of extensive laceration of left arm and forearm status post motor vehicle accident. 3. Entitlement to an initial evaluation in excess of 10 percent for limitation of flexion of the left forearm, associated with residuals of extensive laceration of left arm and forearm status post motor vehicle accident 4. Entitlement to an initial compensable evaluation for bilateral tinea pedis, claimed as a bilateral foot rash. 5. Entitlement to service connection for bilateral hearing loss. 6. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD J. Saikh, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1961 to December 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas (hereinafter referred to as the Agency of Original Jurisdiction (AOJ)). The July 2012 rating decision, in relevant part, granted service connection and assigned ratings for a left wrist injury, a left forearm injury, and a bilateral foot condition. The rating decision denied service connection for bilateral hearing loss and tinnitus. In a June 2014 decision, the AOJ granted "service connection" for limitation of flexion of the left forearm and advised the Veteran that this issue was not on appeal. However, the Board considers the assignment of a separate rating for different planes of motion of the left forearm part and parcel of the initial rating for the left forearm. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2016). The issues of entitlement to increased evaluations for a left wrist injury, a left forearm injury, and a bilateral foot rash, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran does not currently have a bilateral hearing loss disability for VA purposes. 2. The evidence does not show a current tinnitus disability which manifested in service or within one year from service, or is otherwise shown to be related to active service. CONCLUSIONS OF LAW 1. A bilateral hearing loss disability was not incurred in or aggravated during service, nor may an organic disease of the nervous system be presumed to have been incurred in or aggravated during service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2016). 2. Tinnitus was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2015); 38 C.F.R. § 3.159 (2016). VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the duty to notify was fully satisfied by an October 2010 letter sent to the Veteran prior to adjudication by the AOJ. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate any claim. 38 U.S.C.A. § 5103A; 38 C.F.R. §3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his/her claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claim. Service treatment records, post-service VA medical records, and lay statements have been associated with the record and have been reviewed by both the AOJ and the Board in connection with the claim. VA provided the Veteran with an audiological examination in February 2012. In May 2012, VA issued an addendum opinion based upon the examination. The addendum opinion contained findings which included consideration of the Veteran's service treatment records, lay contentions, and medical history. The Board finds that this opinion was adequate and additional VA examinations are not warranted. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). These examination reports are supplemented by clinic records. The Veteran has not identified any other outstanding records that are pertinent to the issue herein decided. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements as to the claim decided herein. There is no additional evidence which needs to be obtained. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including organic diseases of the nervous system, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). In order for the presumption to apply, the evidence must indicate that the disability became manifest to a compensable (10 percent) degree within one year of separation from service. See 38 C.F.R. § 3.307. VA considers sensorineural hearing loss an organic disease of the nervous system, which is listed as a chronic disease under 38 C.F.R. § 3.309(a). See Veteran Benefit Administration (VBA) Adjudication Manual, M-21, Part. IV.ii.2.B.2.b. Additionally, in Fountain v. McDonald, 27 Vet. App. 258 (2015), the Court determined that tinnitus is an "organic disease of the nervous system" subject to presumptive service connection where there is evidence of acoustic trauma and nerve damage. As an alternative to the nexus requirement, service connection for these chronic disabilities may be established through a showing of "continuity of symptomatology" since service. 38 C.F.R. § 3.303(b). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The threshold for normal hearing is from 0 to 20 decibels, and pure tone thresholds above 20 decibels may demonstrate hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993); McKinney v. McDonald, 28 Vet. App. 15, 24-5 (2016). However, hearing loss does not equate as being a "disability" for VA purposes. McKinney, 28 Vet. App. at 24-5. Specifically, hearing loss does not constitute a disability if it does not meet the threshold requirements for 38 C.F.R. § 3.385. Palczewski v. Nicholson, 21 Vet. App. 174, 179-80 (2007). 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, or 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. Tinnitus is a medical term referring to symptoms of noise in the ears, such as ringing, buzzing, roaring or clicking. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1714 (28th ed. 1994). In adopting the current rating criteria for tinnitus under Diagnostic Code 6260, VA described tinnitus as follows: Tinnitus is classified either as subjective tinnitus (over 95% of cases) or objective tinnitus. In subjective or "true" tinnitus, the sound is audible only to the patient. In the much rarer objective tinnitus (sometimes called extrinsic tinnitus or "pseudo-tinnitus"), the sound is audible to other people, either simply by listening or with a stethoscope. 67 Fed. Reg. 59033-01 (Sept. 19, 2002). Thus, tinnitus is a rare type of disability that, in the vast majority of cases, may be established on the basis of lay evidence alone. See Charles v. Principi, 16 Vet. App. 370 (2002). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. 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(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). 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). Analysis Bilateral Hearing Loss The Veteran contends that he currently y has a bilateral hearing loss disability which resulted from his service. Service treatment records reveal that the Veteran was not administered an audiology exam at the time he entered service because the audiogram machine was inoperable. The earliest audiogram from the Veteran's service treatment records is from May 1965. Prior to October 31, 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). In order to facilitate data comparison, where applicable, the ASA standards have been converted to ISO-ANSI standards. In this regard, the ASA pure tone thresholds, in decibels, as noted in audiogram below are represented by the digit not contained in parentheses, while the converted ISO-ANSI pure tone thresholds are contained in the parentheses. HERTZ 500 1000 2000 3000 4000 RIGHT -5 (10) 0 (10) -10 (0) 5 (15) 20 (25) LEFT -5 (10) -5 (5) 0 (10) 5 (15) 10 (15) A subsequent audiogram from April 1969, revealed the following pure tone thresholds (in decibels): HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 15 25 25 LEFT 15 10 15 20 25 In December 1971, the Veteran's audiogram revealed the following pure tone thresholds (in decibels): HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 35 35 LEFT 20 10 5 30 25 In September 1977, the Veteran's audiogram revealed the following pure tone thresholds (in decibels): HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 10 10 20 LEFT 15 10 5 20 25 The last record of an audiogram from service, taken in July 1979, revealed the following pure tone thresholds (in decibels): HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 10 15 LEFT 0 5 0 5 20 Following the Veteran's separation from service, there was no record of any complaints or difficulties with the Veteran's hearing until the Veteran submitted his claim in September 2010. The Veteran was afforded a VA examination in February 2012. The audiogram from that examination revealed the following pure tone thresholds (in decibels): HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 20 25 30 LEFT 10 20 15 25 30 The test results from the audiogram were found to be valid for rating purposes. Speech audiometry revealed speech recognition ability of 96 percent in the right ear, and 100 percent in the left ear, with the results being appropriate to use in evaluating the Veteran's hearing. The Veteran was diagnosed with sensorineural hearing loss for both ears. The examiner found that the Veteran's hearing was within normal limits from 250 to 3000 Hz, and that there was sloping to mild sensorineural hearing loss from 4000 to 8000 Hz. Tympanograms suggested normal middle ear function. In the addendum opinion from May 2012, the examiner noted that the Veteran's hearing was within normal limits during service, and that current pure tone threshold results do not meet the criteria for hearing loss disability. After reviewing the evidence of record, the Board finds that the Veteran does not have a hearing loss disability per VA standards. As such, entitlement to service connection for bilateral hearing loss is unwarranted. In order to fulfill the requirements for service connection, the Veteran must have a current disability. See 38 C.F.R. § 3.303(a). Under VA laws and regulations, the Veteran does not currently exhibit a hearing loss disability. See 38 C.F.R. § 3.385. None of the Veteran's audiograms show any pure tone thresholds of 40 decibels for any of the relevant frequencies, nor are there three thresholds which have a value of 26 decibels or higher. Similarly, the Veteran's speech recognition ability for each ear is higher than 94 percent. Thus, the Veteran has no hearing loss disability and would not be entitled to service connection for bilateral hearing loss. While the February 2012 VA examination did note that there was mild sensorineural hearing loss from 4000 to 8000 Hz, the examiner specifically noted that such impaired hearing did not rise to the level of a disability for VA purposes. The May 2012 addendum opinion took into account the Veteran's service audiograms, and likewise found that the Veteran's hearing loss did not rise to the level of a disability. As this examination and opinion, considered collectively, reflects a thorough review of the Veteran's symptoms, lay statements, and medical history, the Board finds them extremely probative in this matter. See Nieves-Rodriguez, 22 Vet. App. at 301. The Board notes that the Veteran is competent to testify as to symptoms of hearing loss and the date of its onset, as such facts are within his personal observation. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (lay witnesses are competent to testify to features or symptoms of an injury or illness); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran's report of decreased hearing acuity is credible and consistent with the evidence of record. However, with regard to the issue of whether his decreased hearing acuity rises to the level of hearing loss disability per VA standards (38 C.F.R. § 3.385), the Board places greater probative value on the audiometric and word list testing which provides an objective, accurate measurement of hearing acuity. In sum, the evidence deemed most probative by the Board demonstrates that the Veteran did not have a bilateral hearing loss disability. Accordingly, after weighing all the evidence, the Board finds the preponderance of the evidence is against the claim discussed above, and the benefit-of-the-doubt standard of proof does not apply. See 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Tinnitus The Veteran also contends that he has tinnitus which is a result of his service. Besides the Veteran's claim for service connection, the record does not show any complaints of tinnitus or related symptoms. Service treatment records also show no record or complaint of tinnitus. The February 2012 VA examination also noted that the Veteran had no past or current complaints of tinnitus, and the May 2012 addendum opinion further noted that there were no documented complaints of tinnitus in the Veteran's medical records. As discussed above, tinnitus is a unique disability perceptible in most cases only to the claimant. The record reflects that the Veteran claims to manifest tinnitus, but specifically denied this disability to a VA examiner and, thus, did not report any continuity since service. To the extent that the Veteran claims current tinnitus disability, the Board places greater probative value on the assessment of the VA examiner who, upon interview of the Veteran and his symptoms, found that the Veteran did not describe tinnitus. The Board emphasizes that "the duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Accordingly, besides the Veteran's own assertion that he should be entitled to service connection for tinnitus, the lay and medical evidence does not credibly show that the Veteran actually has tinnitus. As such, service connection is unwarranted at this time. ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. REMAND The Veteran contends that the severity of his left wrist and left forearm injuries exceeds the current ratings assigned under Diagnostic Codes (DCs) 5215 and 5207, respectively, and that his tinea pedis, claimed as a foot rash, exceeds the evaluation assigned under DC 7806. The Veteran submitted an X-ray report from August 2014 which shows swelling around his left wrist, and that fragments of wire surround the soft tissues of his left wrist and left forearm. The Veteran's representative also submitted a brief indicating that the Veteran should be entitled to new VA examinations, as the ones completed in 2012 do not accurately reflect the current severity of the Veteran's service-connected disabilities. In light of the above, the Veteran should be afforded new examinations to assess the severity of his left wrist, left forearm, and tinea pedis disabilities. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain any outstanding, relevant treatment records, including private treatment records, and associate them with the claims file. 2. Associate with the claims folder records of the Veteran's VA treatment since July 2012. 3. Thereafter, the Veteran should be afforded VA examinations to address the current severity of his left wrist and left forearm injuries. In addition to the necessary findings, the VA examinations must include: (1) Range of motion testing for both wrists and both forearms in the following areas: active motion, passive motion, weight-bearing, and nonweight-bearing; (2) If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so; (3) The examiner should then note any functional limitations caused by the left wrist and left forearm disabilities; and (4) identify whether the Veteran has any residual nerve injury involving the left forearm or wrist (see STRs discussing possible nerve injury to the left posterior interosseus nerve versus the smaller nerve branches). 4. The Veteran should then be afforded a VA examination to address the current severity of his tinea pedis, claimed as a bilateral foot rash. 5. After completing the actions detailed above, readjudicate the claims remaining on appeal. If the claims remains denied, a supplemental statement of the case (SSOC) must be provided to the Veteran and his representative. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs