Citation Nr: 1801245 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 15-44 953 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for cold weather injury of the left ear. 4. Entitlement to service connection for cold weather injury of the right ear. 5. Entitlement to service connection for cold weather injury of the left hand. 6. Entitlement to service connection for cold weather injury of the right hand. 7. Entitlement to service connection for cold weather injury of the left foot. 8. Entitlement to service connection for cold weather injury of the right foot. REPRESENTATION Veteran represented by: AMVETS ATTORNEY FOR THE BOARD J. Cheng, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from July 1952 to July 1954, and from November 1955 to October 1957, including service in the Republic of Korea. This case comes before the Board of Veterans' Appeals (Board) on appeal from December 2013 and April 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran's hearing loss did not originate during active service or within a year of service discharge, and is not otherwise etiologically related to service. 2. The Veteran's tinnitus did not originate during active service or within a year of service discharge, and is not otherwise etiologically related to service. 3. The Veteran currently does not have any residuals of cold weather injuries of the hands, feet, and ears. CONCLUSIONS OF LAW 1. The criteria for the establishment of service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1154, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385, 3.655 (2017). 2. The criteria for the establishment of service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1154, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385, 3.655 (2017). 3. The criteria for service connection for cold weather injury of the hands, feet, and ears are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA provided the Veteran with 38 U.S.C. § 5103 (a)-compliant notice on October 3, 2013, October 28, 2013, and March 3, 2014. Some of the Veteran's service treatment records (STRs) were destroyed in a fire at the National Personnel Records Center (NPRC). Where a Veteran's service treatment records have been destroyed or lost, there is a duty to advise him to obtain other forms of evidence. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). In October 2013, the Records Management Center stated that the Veteran's records were fire related and that there were no STRs or SGOs. The October 3, 2013 VCAA letter informed the Veteran that his military records may have been destroyed in the July 1973 fire at the National Archives and Records Administration and requested the Veteran to complete the enclosed NA Form 13055 to obtain alternate record sources of in-service treatment. A December 2013 notification letter informed the Veteran of his missing records and re-requested the Veteran to complete the NA Form 13055 and informed him that further searches for his missing records cannot be made if the form is not completed. The record does not include a completed copy of the requested NA Form 13055. Incomplete STRs from July 1954 through October 1957 were subsequently associated with the claims file. Thus, the Board concludes that VA's heightened duty to assist has been satisfied. The Board also has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O'Hare, 1 Vet. App. 365; Pruitt v. Derwinski, 2 Vet. App. 83 (1992). The analysis herein has been undertaken with this heightened duty in mind. The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claim, including with respect to VA examinations of the Veteran. In a December 2017 appellate brief in support of the claims, the Veteran, through his representative, specifically stated there was no additional evidence or argument to add and the Veteran has not identified any deficiency in VA's notice or assistance duties. Given the above, the Board finds that no further notice or assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Service Connection Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for a disease first 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). Service connection requires competent evidence showing, (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In this case, sensorineural hearing loss is listed among the "chronic diseases" under 38 C.F.R. § 3.309(a), as it is considered an organic disease of the nervous system. Therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as an organic disease of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures pure tone threshold hearing levels (in decibels) over a range of frequencies (in hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. 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. Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C. § 7104(a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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. § 7105; 38 C.F.R. §§ 3.102, 4.3. A. Bilateral Hearing Loss and Tinnitus Unfortunately, some of the Veteran's service treatment records have been destroyed. The only STRs available are the Veteran's July 1954 and October 1957 separation reports of medical examination. Nevertheless, both separation reports in July 1954 and October 1957 noted the Veteran's whispered voice hearing acuity was 15/15 in each ear and, and his ears were determined to be normal on clinical evaluation. The October 1957 separation report of medical examination noted the Veteran had no defects or diagnosis. Post service VA medical records in January 2007 noted the Veteran's ears canals were clear and tympanic membranes were intact and that the Veteran denied any hearing problems. The January 2007 VA treatment record also noted the Veteran's prior medical history diagnoses which did not indicate any issues related to hearing loss or tinnitus. In the Veteran's January 2014 claim for hearing loss, the Veteran, through his representative, contended that his bilateral hearing loss and tinnitus began in service and still existed currently. The Veteran was provided a VA examination in March 2014. However, during examination, the examiner found the Veteran's responses were unreliable and could not be reported. The examiner explained that repeated testing of tones and speech stimuli lead to widely varying responses and after several trials, it was decided that it was unlikely responses would improve so testing was terminated. The March 2014 VA examiner did not address the Veteran's claimed tinnitus. In the May 2014 notice of disagreement, the Veteran, through his representative, indicated he experienced ringing in his ears since service. The Veteran was provided another VA examination in October 2015. The examiner noted the Veteran served in the Army from 1952 to 1957 and that he served as a gunner on a 155 howitzer. The Veteran reported noise exposure from the howitzers and that hearing protection was not available. The Veteran reported that prior to his enlistment, he drove a truck over the road for a year and following military separation, he worked for a printing company for two years and then another printing company until he retired in 1999. The Veteran denied any recreational noise exposure. On the authorized audiological evaluation in October 2015, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 45 40 35 45 LEFT 35 45 35 40 25 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 96 percent in the left ear. The October 2015 VA examiner diagnosed bilateral sensorineural hearing loss. The examiner noted the Veteran's hearing loss did not exist prior to service. After examination, the examiner opined that the Veteran's right and left ear hearing loss was not at least as likely as not caused by or a result of an event in military service. The examiner's rationale was that there was no indication of hearing loss in the Veteran's records. The examiner also elaborated that "today's evaluation" was not a hearing loss that was consistent with a history of noise exposure and that there were no complaints of hearing loss in his records. The October 2015 VA examiner did not diagnose tinnitus. An April 2017 private audiometer conducted by Midwest Ear Specialists noted the Veteran had positive hearing loss and positive history of loud noise exposure. The record also noted the Veteran's hearing loss had been fluctuating since January. The audiologist also diagnosed bilateral tinnitus. A June 2017 VA treatment record noted the Veteran had moderate to moderately severe sensorineural hearing loss in his right ear and mild to moderate sensorineural hearing loss in his left ear. The provider diagnosed bilateral tinnitus. A review of the Veteran's DD-214 shows that the Veteran served in Korea and was attached to a field artillery battalion and was a field artillery operation intelligence specialist. The Veteran's DD-214 also shows the Veteran had a parachutist badge. The Veteran also reported noise exposure from howitzers. The Board finds that the Veteran's report of hazardous noise exposure is consistent with the facts and circumstances of his service and concedes that he sustained acoustic trauma during active service. However, military noise exposure alone is not considered to be a disability; rather, the noise exposure must result in a hearing loss disability. After a review of the evidence, the Board finds that the preponderance of the evidence is against the claims for service connection for bilateral hearing loss and tinnitus. Weighing against the claim for hearing loss is the October 2015 VA examiner's opinion that the Veteran's bilateral hearing loss was not the result of service. Also of significance, while seeking VA treatment in January 2007, the Veteran denied any hearing problems. The January 2007 VA treatment record also included the Veteran's prior medical history, which the Board highlights did not include any mention of hearing loss or tinnitus. Statements made while seeking medical treatment are significant and given weight and credibility because they were made at a time when there was no incentive, financial or otherwise, to fabricate information for personal gain. Struck v. Brown, 9 Vet. App. 145 (1996); Rucker v. Brown, 10 Vet. App. 67 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth to receive proper care). The January 2007 VA treatment record notations are inconsistent with the Veteran's claims that his hearing loss and tinnitus began in service and as such, the Board affords the Veteran's statements little probative value, and finds that they do not support a finding of continuity of symptomatology since service. The Board finds that the October 2015 VA audiologist's opinion is probative, as it was based upon a thorough, accurate review of the record, to include specific assertions from the Veteran and is supported by a sufficient rationale. While the Veteran is competent to report things that come to him through his senses, the Veteran is not competent to provide an etiology opinion regarding hearing loss as that requires specialized training. To the extent that a continuity of hearing loss and tinnitus symptomatology is indicated, the Board finds that the Veteran's denial of any hearing problems in January 2007 outweighs any such contention. In addition, the Board finds the examiner's opinion regarding hearing loss more persuasive because of the many years of training and expertise of the examiner. Moreover, the Veteran has not submitted any contrary competent evidence linking bilateral hearing loss and tinnitus to service, aside from his own assertions of experiencing acoustic trauma, a fact considered by the VA examiner. Accordingly, the Board concludes that the probative evidence of record does not support the claims of entitlement to service connection for bilateral ear hearing loss or tinnitus on a direct basis. Moreover, because there is no evidence that the Veteran developed bilateral ear hearing loss or tinnitus to a compensable degree within one year of separation from active service, service connection on a presumptive basis is also not warranted. The Board finds that the preponderance of the evidence is against these claims, and these claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Cold Injury Residuals The Veteran asserts that he has residuals of cold weather injuries to the hands, feet, and ears that were incurred during his service in the Republic of Korea. As indicated above, some of the Veteran's service treatment records have been destroyed. The only STRs available are the Veteran's July 1954 and October 1957 separation reports of medical examination. There is no mention of cold weather injury in these STRs. However, as will be seen below, it is not the lack of service treatment records but rather the lack of current disability that is determinative in this case. In the Veteran's January 2013 application for compensation for his cold injury residuals, the Veteran stated that during his service in Korea, he had marched at least 20 days with his unit through the Imjin River in cold weather conditions. The Veteran indicated the Imjin River had been frozen over and that the cold weather conditions led to his issues with his feet, hands, and ears. He stated he had since been experiencing numbness, tingling, itching, and coldness in his feet, hands, and ears. Post service treatment records do not indicate that the Veteran has any residuals of a cold weather injury. The Veteran was provided with a VA examination in October 2015. During examination, the Veteran reported that he experienced cold injuries from his service in Korea in 1952 to 1953 to his feet that included dryness, itching, and feeling cold. The Veteran reported that after leaving service, he drove trucks for a beer company for three years and subsequently attended school. The Veteran reported he worked for a printing company from 1965 to 1999 and then worked for one year in security. On examination, the examiner found there were no signs or symptoms of residuals of a cold weather injury in the Veteran's right hand, left hand, right foot, left foot, right ear, or left ear. The examiner ultimately found there was no evidence of cold injuries on examination. The examiner explained that the Veteran's dry skin was due to aging skin changes and not a result of cold injuries. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in a disability. 38 U.S.C. §§ 1110, 1131. In the absence of proof of present disability, there can be no valid claim. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992). In this case, the preponderance of the evidence is against a finding that the Veteran currently has any residuals of cold weather injuries of the hands, feet, and ears. As there is no disability that can be related to service, the claim for service connection for cold weather injury of the hands, feet, and ears must be denied. The Board notes that a lay person is competent to give evidence about observable symptoms such as itching, numbness, and coldness. Layno v. Brown, 6 Vet. App. 465 (1994). The Board also notes that a lay person is competent to address etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, while the Board appreciates the Veteran's statements regarding disability onset and chronicity of symptomatology, there is no objective evidence of record that shows diagnosis and causation extend beyond an immediately observable cause-and-effect relationship. As such, the Veteran is not competent to diagnose himself with a cold weather injury or address the etiology of any such injury. As discussed above, the medical evidence shows that he does not have any residuals of a cold weather injury and the Veteran has not submitted objective medical evidence to the contrary. In conclusion, service connection for cold weather injury of the left ear, right ear, right hand, left hand, right foot, and left foot is not warranted. As the preponderance of the evidence is against these claims, the claims must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. Service connection for cold weather injury of the right foot is denied. Service connection for cold weather injury of the left foot is denied. Service connection for cold weather injury of the right hand is denied. Service connection for cold weather injury of the left hand is denied. Service connection for cold weather injury of the right ear is denied. Service connection for cold weather injury of the left ear is denied. ____________________________________________ THOMAS H. O'SHAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs