Citation Nr: 1648463	
Decision Date: 12/29/16    Archive Date: 01/06/17

DOCKET NO.  10-31 849	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service connection for hypertension.

4.  Entitlement to service connection for obstructive sleep apnea.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Michael T. Osborne, Counsel


INTRODUCTION

The Veteran had active service from December 1975 to January 1977.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in  Columbia, South Carolina, which determined that new and material evidence had not been received sufficient to reopen the Veteran's previously denied claims of service connection for bilateral hearing loss and for tinnitus.  A Travel Board hearing was held at the RO in July 2013 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record.

In October 2013, the Board reopened the Veteran's previously denied claims of service connection for bilateral hearing loss and for tinnitus and remanded this matter to the Agency of Original Jurisdiction (AOJ) for additional development.  A review of the claims file shows that there has been substantial compliance with the Board's remand directives.  The Board directed that the AOJ attempt to obtain the Veteran's Social Security Administration (SSA) records, his updated treatment records, and schedule him for appropriate examination to determine the nature and etiology of his bilateral hearing loss and tinnitus.  The identified records subsequently were associated with the Veteran's claims files and the requested examination occurred in December 2014.  See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

The Board notes that, in April 2013, the AOJ denied the Veteran's claims of service connection for hypertension and for obstructive sleep apnea.  The Veteran disagreed with this decision in April 2014.

The Board next notes that, in November 2015, the AOJ granted a claim of service connection for posttraumatic stress disorder (PTSD) (which was characterized as unspecified anxiety disorder (also claimed as PTSD)), assigning a 50 percent rating effective December 10, 2008.  Accordingly, an issue relating to PTSD is no longer in appellate status.  See Grantham v. Brown, 114 F .3d 1156 (1997).

The Veteran appointed his current service representative to represent him before VA by filing a completed VA Form 21-22 in January 2016.

This appeal was processed using the Virtual VA (VVA) and Virtual Benefits Management System (VBMS) paperless claims processing systems.  Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records.

The issues of entitlement to service connection for hypertension and for obstructive sleep apnea are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.  VA will notify the Veteran if further action is required.


FINDING OF FACT

The record evidence shows that the Veteran's current bilateral hearing loss and tinnitus are not related to active service.



CONCLUSIONS OF LAW

1.  Bilateral hearing loss was not incurred in or aggravated by active service nor may sensorineural hearing loss be presumed to have been incurred in service.  38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2016).

2.  Tinnitus was not incurred in or aggravated by active service nor may it be so presumed.  38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2016); Fountain v. McDonald, 27 Vet. App. 258 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act (VCAA) must be examined.  The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his or her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim.

In a letter issued in December 2008, VA notified the Veteran of the information and evidence needed to substantiate and complete his claims, including what part of that evidence he was to provide and what part VA would attempt to obtain for him.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  This letter informed the Veteran to submit medical evidence showing that his claimed disabilities are related to active service.  The Veteran also was informed of when and where to send the evidence.  After consideration of the contents of this letter, the Board finds that VA has satisfied substantially the requirement that the Veteran be advised to submit any additional information in support of his claims.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).

As will be explained below in greater detail, the evidence does not support granting service connection for bilateral hearing loss and for tinnitus.  Because the Veteran was fully informed of the evidence needed to substantiate these claims, any failure of the AOJ to notify the Veteran under the VCAA cannot be considered prejudicial.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  The Veteran also has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

With respect to the timing of the notice, the Board points out that the Court has held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a Veteran before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits.  See Pelegrini, 18 Vet. App. at 112.  Here, all relevant notice was issued prior to the currently appealed rating decision; thus, this notice was timely.  And any defect in the timing or content of the notice provided to the Veteran and his service representative has not affected the fairness of the adjudication.  See Mayfield, 444 F.3d at 1328.

The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the Board.  Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities.  38 U.S.C.A. § 5103A(c)(2).  All records pertaining to the conditions at issue are presumptively relevant.  See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010).  In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA also must seek those records even if they do not appear potentially relevant based upon the available information.  Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)).  It appears that all known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise.  The Veteran's electronic paperless claims files in VVA and in VBMS have been reviewed.  The Veteran's complete Social Security Administration (SSA) records also have been obtained and associated with the claims file.

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  In March 2016, the Federal Circuit ruled in Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott, 789 F.3d at 1375.  Because the Veteran has not raised a potential Bryant problem in this appeal, no further discussion of Bryant is necessary.

The Veteran has been provided with VA examinations which address the contended causal relationship between the claimed disability and active service.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  Given that the pertinent medical history was noted by the examiners, these examination reports set forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations.  Thus, the Board finds the examinations of record are adequate for rating purposes and additional examination is not necessary regarding the claims adjudicated in this decision.  See also 38 C.F.R. §§ 3.326, 3.327, 4.2.  In summary, VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA.

Service Connection Claims

The Veteran contends that he incurred bilateral hearing loss and tinnitus during active service.  He specifically contends that he was exposed to hazardous levels of noise during active service, causing or contributing to his current bilateral hearing loss and tinnitus.


Laws and Regulations

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection also may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  Certain chronic diseases, including sensorineural hearing loss (as an organic disease of the nervous system), are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).  The Court has added tinnitus (as an organic disease of the nervous system) to the list of disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a).  See Fountain v. McDonald, 27 Vet. App. 258 (2015).

Establishing service connection generally requires (1) medical evidence of a presently existing 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 present disability.  Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)); Hickson v. West, 12 Vet. App. 247, 253 (1999).

Clinically, the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  See Hensley v. Brown, 5 Vet. App. 155, 157 (1993).   For compensation purposes, however, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater or where the auditory thresholds for at least three of these frequencies are 26 dB or greater or when speech recognition scores are less than 94 percent.  38 C.F.R. § 3.385.

If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim.  See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent.  If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology.  See Savage, 10 Vet. App. at 495-498.

In Walker, the Federal Circuit overruled Savage and limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also Fountain v. McDonald, 27 Vet. App. 258 (2015) (adding tinnitus as an "organic disease of the nervous system" to the list of disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a)).  Because sensorineural hearing loss (as an organic disease of the nervous system) and tinnitus are considered "chronic" disabilities under 38 C.F.R. § 3.309(a), the theory of continuity of symptomatology remains valid in adjudicating the Veteran's claims.

It is VA policy to administer the laws and regulations governing disability claims under a broad interpretation and consistent with the facts shown in every case.  When a reasonable doubt arises regarding service origin, the degree of disability, or any other point, after careful consideration of all procurable and assembled data, such doubt will be resolved in favor of the claimant.  Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not prove or disprove the claim satisfactorily.  It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility.  See 38 C.F.R. § 3.102.

Factual Background and Analysis

The Board finds that the preponderance of the evidence is against granting the Veteran's claims of service connection for bilateral hearing loss and for tinnitus.  The Veteran contends that in-service exposure to hazardous noise levels caused or contributed to his current bilateral hearing loss and tinnitus.  The record evidence does not support his assertions regarding an etiological link between any current bilateral hearing loss, tinnitus, and active service.  It shows instead that, although the Veteran currently experiences bilateral hearing loss and tinnitus, neither of these disabilities is related to active service or any incident of service.  For example, the Veteran's available service treatment records show that, at his enlistment physical examination in November 1975, prior to his entry on to active service in December 1975, his pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
5
5
25
20
LEFT
5
5
15
30
15

The Veteran denied any pre-service history of hearing loss.

At his separation physical examination in November 1976, prior to his separation from service in January 1977, the Veteran's pure tone thresholds, in decibels, were as follows:




HERTZ



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

The post-service evidence also does not support granting the Veteran's claims of service connection for bilateral hearing loss and for tinnitus.  Despite the Veteran's assertions to the contrary, this evidence shows that, although he currently experiences bilateral hearing loss and tinnitus, neither of these disabilities is related to active service.  The Board notes initially that, because it previously found the July 2011 VA audiology examination to be inadequate for VA adjudication purposes in the October 2013 remand, that examination was not relied upon in adjudicating the Veteran's currently appealed claims and will not be discussed further.

The Veteran testified at his July 2013 Board hearing that he was exposed to significant in-service acoustic trauma from shells and mortar fire during infantry training on firing ranges.  See Board hearing transcript dated July 10, 2013, at pp. 3.  He also testified that he had been wearing hearing aids for 2 years.  Id., at pp. 4-5.

On VA hearing loss and tinnitus Disability Benefits Questionnaire (DBQ) in December 2014, the Veteran's pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
35
50
60
65
LEFT
25
30
55
60
60

The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records.  This examiner stated that she could not obtain the Veteran's speech discrimination scores for either ear.  The Veteran stated that the functional impact of his bilateral hearing loss was that he had to look at people when they were talking to him and he talked loud.  He also stated that the functional impact of his tinnitus was that he left his television on so he could not hearing the ringing in his ears.  He reported that he had been assigned to a combat battalion during training exercise and had been exposed to significant in-service acoustic trauma as a result of this experience.  The VA examiner opined that it was less likely than not that the Veteran's bilateral sensorineural hearing loss and tinnitus were related to active service.  In her lengthy rationale, she stated that, although the Veteran's MOS of medical specialist suggested a low probability of in-service noise exposure, his last duty assignment was "consistent with" at least moderate in-service noise exposure.  She also stated that a comparison of the Veteran's in-service audiograms indicated that there had been no noise injury (or significant threshold shift) in the Veteran's hearing during service.  She cited an Institute of Medicine study which concluded that there was insufficient evidence to determine whether permanent noise-induced hearing loss can develop years after the end of the noise exposure.  She also stated that, given the Veteran's short time on active service, it was unlikely that this led him to develop noise-induced hearing loss.  With respect to tinnitus, her rationale was that there was no evidence of a verifiable noise injury (or significant threshold shift) which could have caused him to experience tinnitus as a result of active service.  The diagnoses were bilateral sensorineural hearing loss and tinnitus.

The Veteran's SSA records indicate that he is in receipt of Supplemental Security Income as a result of hypertension, right arm pain, neck pain, and "speech problems with spasms."

The Veteran has contended that in-service exposure to significant (or hazardous) acoustic trauma caused or contributed to his current bilateral hearing loss and tinnitus.  The record evidence does not support his assertions concerning in-service incurrence of bilateral hearing loss and tinnitus or an etiological link between any current bilateral hearing loss or tinnitus and active service.  The Veteran's service treatment records do not show that he experienced impaired hearing for VA adjudication purposes during active service based on a review of the audiograms obtained at his enlistment and separation physical examination.  See 38 C.F.R. § 3.385.  Although the post-service evidence demonstrates that the Veteran experiences both bilateral hearing loss and tinnitus, as seen on the December 2014 VA hearing loss and tinnitus DBQ, the December 2014 VA audiologist opined that it was less likely than not that either of these disabilities were related to active service.  This opinion was fully supported.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions").  The Veteran also has not identified or submitted any evidence, to include a medical nexus, demonstrating his entitlement to service connection for bilateral hearing loss and for tinnitus.  In summary, the Board finds that service connection for bilateral hearing loss and for tinnitus is not warranted.

The Board finally notes that service connection for bilateral sensorineural hearing loss and tinnitus is not warranted on a presumptive basis as a chronic disease.  See 38 C.F.R. §§ 3.307, 3.309; see also Fountain, 27 Vet. App. at 258.  The Veteran does not contend, and the evidence does not indicate, that he experienced either bilateral sensorineural hearing loss or tinnitus during active service or within the first post-service year (i.e., by January 1978) such that service connection is warranted for either of these disabilities on a presumptive basis as a chronic disease.  Id.  As noted above, the Veteran's service treatment records do not show the presence of impaired hearing for VA purposes during active service or at his separation physical examination.  See also 38 C.F.R. § 3.385.  As also noted above, the Veteran testified before the Board that he did not report any in-service hearing problems because he was not aware that he had any hearing problems during service and he did not seek treatment for either bilateral hearing loss or tinnitus initially until several years after service separation.  The Veteran further testified that he did not seek treatment for any hearing problems until several years after his service separation.  Accordingly, the Board finds that service connection for bilateral sensorineural hearing loss and for tinnitus is not warranted on a presumptive basis.

In this decision, the Board has considered all lay and medical evidence as it pertains to the issue.  38 U.S.C.A. § 7104(a) ("decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) (VA "shall consider all information and lay and medical evidence of record in a case"); 38 C.F.R. § 3.303(a) (service connection claims "must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence").  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown,6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  A Veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses.  Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). 

The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr, 21 Vet. App. at 303 ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms").  In determining whether statements submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment.  Caluza v. Brown, 7 Vet. App. 498 (1995).  

As part of the current VA disability compensation claims, in recent statements and sworn testimony, the Veteran has asserted that his symptoms of bilateral hearing loss and tinnitus have been continuous since service.  He asserts that he continued to experience symptoms relating to bilateral hearing loss (difficulty hearing) and tinnitus (ringing in the ears) after he was discharged from service.  In this case, after a review of all the lay and medical evidence, the Board finds that the weight of the evidence demonstrates that the Veteran did not experience continuous symptoms of bilateral hearing loss and tinnitus after service separation.  Further, the Board concludes that his assertion of continued symptomatology since active service, while competent, is not credible.  

The Board finds that the Veteran's more recently-reported history of continued symptoms of bilateral hearing loss and tinnitus since active service is inconsistent with the other lay and medical evidence of record.  Indeed, while he now asserts that his disorders began in service, in the more contemporaneous medical history he gave at the service separation examination, he denied any relevant history or complaints of symptoms.  Specifically, the service separation examination report reflects that the Veteran was examined and his hearing was not found to be impaired.  His in-service history of symptoms at the time of service separation is more contemporaneous to service so it is of more probative value than the more recent assertions made many years after service separation.  See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the Veteran wrote during treatment than to his subsequent assertion years later).  

The post-service medical evidence does not reflect complaints or treatment related to bilateral hearing loss and tinnitus for many years following active service.  The Veteran himself testified before the Board that he was not aware that he had any hearing problems during active service.  See Board hearing transcript dated July 10, 2013, at pp. 3-4.  As noted elsewhere, he also testified that he did not seek treatment for any hearing problems until several years after his service separation.  Id.; see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (finding lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where Veteran failed to account for lengthy time period between service and initial symptoms of disability).

The Board notes that the Veteran sought treatment for a myriad of medical complaints since discharge from service, including PTSD.  Significantly, during that treatment, when he specifically complained of other problems, he never reported complaints related to bilateral hearing loss or tinnitus.  Rucker, 10 Vet. App. at 67 (holding that lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care).

He did not claim that symptoms of his disorders began in (or soon after) service until he filed his current VA disability compensation claims.  Such statements made for VA disability compensation purposes are of lesser probative value than his previous more contemporaneous in-service histories.  See Pond v. West, 12 Vet. App. 341 (1999) (finding that, although Board must take into consideration the Veteran's statements, it may consider whether self-interest may be a factor in making such statements).  These inconsistencies in the record weigh against the Veteran's credibility as to the assertion of continuity of symptomatology since service.  See Madden, 125 F.3d at 1481 (finding Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board's finding that a Veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service).  

The Board has weighed the Veteran's statements as to continuity of symptomatology and finds his current recollections and statements made in connection with a claim for VA compensation benefits to be of lesser probative value than his previous more contemporaneous in-service history and findings at service separation, the absence of complaints or treatment for years after service, his previous statements made for treatment purposes, and the record evidence showing no etiological link between bilateral hearing loss, tinnitus, and active service.  For these reasons, the Board finds that the weight of the lay and medical evidence is against a finding of continuity of symptoms since service separation.


ORDER

Entitlement to service connection for bilateral hearing loss is denied.

Entitlement to service connection for tinnitus is denied.


REMAND

The Veteran also contends that he incurred hypertension and obstructive sleep apnea during active service.  As noted in the Introduction, the AOJ denied the Veteran's claims of service connection for hypertension and for obstructive sleep apnea in an April 2013 rating decision.  The Veteran disagreed with this decision in April 2014.  To date, however, the AOJ has not issued a Statement of the Case (SOC) on these claims.  Where a claimant files a notice of disagreement and the AOJ has not issued an SOC, the issue must be remanded to the AOJ for an SOC.  See Manlincon v. West, 12 Vet. App. 238, 240-241 (1999).  Thus, the Board finds that, on remand, the AOJ should issue an SOC to the Veteran and his service representative on the claims of service connection for hypertension and for obstructive sleep apnea.

Accordingly, the case is REMANDED for the following action:

Issue a Statement of the Case (SOC) to the Veteran and his representative on the issues of entitlement to service connection for hypertension and for obstructive sleep apnea.  A copy of any SOC should be associated with the claims file.  These claims should be returned to the Board for further appellate consideration only if the Veteran perfects a timely appeal. 

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).



______________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs