Citation Nr: 1803726 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 11-31 952 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for vertigo, including as secondary to bilateral hearing loss disability. 4. Entitlement to service connection for a bilateral foot disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran had active duty for training from June 1974 to January 1975 and active service in the U.S. Air Force from February 1975 to June 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Winston-Salem, North Carolina, that, in pertinent part, denied service connection for bilateral hearing loss, tinnitus, vertigo, and a foot disorder. The Veteran testified before a Decision Review Officer at a May 2011 hearing at the RO. A transcript of the hearing has been associated with the record. This case was previously before the Board in September 2014 and April 2016. A supplemental statement of the case was most recently issue in October 2017. The case was returned to the Board for appellate consideration. The issues on appeal had previously included service connection for benign prostatic hypertrophy, sinusitis, allergic rhinitis, a bilateral eye disorder, hypertension, headaches, right and left ankle disorders, right and left hip disorders, right and left knee disorders, lumbar strain, hemorrhoids, a fracture of the left hand, and gastroesophageal reflux disease. During the pendency of this appeal, by rating decisions in March 2015 and January 2017, service connection for each respective disability was granted. As this represents a complete grant of the benefits sought on appeal, the issues are no longer before the Board. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). FINDINGS OF FACT 1. Bilateral hearing loss disability is attributable to service. 2. Tinnitus is attributable to service. 3. Vertigo is related to a service-connected disease or injury. 4. The Veteran does not have a bilateral foot disorder attributable to service. CONCLUSIONS OF LAW 1. Bilateral hearing loss disability was incurred during active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2017). 2. Tinnitus was incurred during active service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. Vertigo is proximately due to or a result of a service-connected disease or injury. 38 C.F.R. §§ 3.102, 3.159, 3.310 (2017). 4. A bilateral foot disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). In this case, the agency of original jurisdiction (AOJ) issued notice letters to the Veteran. These letters explained the evidence necessary to substantiate the Veteran's claims for service connection, as well as the legal criteria for entitlement to such benefits. The letters also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The claims file contains the Veteran's available service treatment records, reports of post-service treatment, and the Veteran's own statements in support of his claims The Veteran was afforded VA examinations responsive to the claims for service connection. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). The opinions were conducted by a medical professional, following thorough examination of the Veteran, solicitation of history, and review of the claims file. The Board notes that the majority of the Veteran's service treatment records are unavailable. The Board recognizes that there is a heightened obligation to assist a claimant in the development of his case where, as here, records are presumed to have been or were destroyed while the file was in the possession of the government. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claims. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2016). To establish a right to compensation for a present disability, a Veteran must show: (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-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after service 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). 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. For chronic diseases, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310. Bilateral Hearing Loss and Tinnitus The threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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, 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 Veteran does not assert that he was in combat, nor are available service personnel records reflective of such. Therefore, the provisions of 38 U.S.C.A. § 1154(b) are not applicable. Nonetheless, the Board concedes in-service noise exposure. See 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). The Board finds that the evidence of record demonstrates that service connection for bilateral hearing loss disability and tinnitus is warranted. The results of his June 2017 VA audiological examination confirms that he has sufficient hearing loss in both of his ears to meet the threshold minimum requirements of 38 C.F.R. § 3.385 to be considered an actual "disability." Furthermore, the Veteran has credibly stated that he experienced decreased hearing and ringing of the ears since the time of his in-service noise exposure, and that he did not have any significant post-service occupational or recreational noise exposure. The Veteran's competent and credible statements thus support a nexus between his current hearing loss disability and tinnitus, and his in-service noise exposure. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2008) (lay evidence may suffice to prove service connection on its own merits). The Veteran's credible history of decreased hearing and ringing of the ears since service is consistent with hearing loss disability and tinnitus. Sensorineural hearing loss is associated with noise exposure; harmful noise exposure is consistent with the conditions of his service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (the absence of hearing loss disability in service is not in and of itself fatal to a claim for service connection for bilateral hearing loss disability); 38 C.F.R. § 3.303(d) (service connection warranted in some circumstances where disease is first diagnosed after service). Hence, on this record, the evidence is found to be at least evenly balanced in showing that the Veteran's bilateral hearing loss disability and tinnitus are at least as likely as not related to the Veteran's exposure to harmful noise levels in connection with his service. In resolving all reasonable doubt in the Veteran's favor, service connection is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Vertigo The Board finds that the evidence of record demonstrates service connection for vertigo is warranted. The Veteran does not assert that his vertigo is related to service; he asserts that his vertigo is the result of his service-connected bilateral hearing loss disability and tinnitus. The Board finds that the available medical evidence of record supports the Veteran's contentions. The Board notes that the August 2017 VA examiner noted that vertigo is also called benign paroxysmal positional vertigo, which is rooted in the crystals that line the balance center of the inner ear and help to maintain normal balance. The VA examiner also noted that benign paroxysmal positional vertigo occurs when these bone-like calcium crystals break free and float inside the small canals in the inner ear, and when the head moves, the dislodged crystals impair balance and create the sensation that the room is spinning. The Veteran reported a long history of vertigo associated with the onset of his bilateral hearing loss, and the VA examiner noted that that balance issues are also associated with bilateral hearing loss disability; a diagnosis of hearing impairment with vertigo was noted. See Madden v. Gober, 125 F.3d 1477, 1481 (1997) (in evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole). For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran's vertigo is related to his service-connected bilateral hearing loss disability. With resolution of any reasonable doubt in the Veteran's favor, entitlement to service connection for vertigo is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Bilateral Foot Disorder The Veteran's claim of entitlement to service connection for a bilateral foot disorder must be denied. In this case, there is no evidence of a bilateral foot disorder during active duty or in the years since the Veteran's discharge from service. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000) (a Veteran seeking disability benefits must establish the existence of a disability and a connection between such Veteran's service and the disability). More significantly, the Veteran has not provided any medical evidence of treatment, complaints, or diagnoses related to any bilateral foot disorder since service. To this point, the Board points out that the Veteran reported to the May 2016 VA examiner that he had not been diagnosed with a bilateral foot disorder, and that he had not intended to file a claim for service connection for a bilateral foot disorder; he reported that the claim of entitlement to service connection that he filed for his (now service-connected) right and left ankle disorders was misinterpreted to include a claim for his feet. The Veteran denied being diagnosed with a bilateral foot disorder and no such diagnosis is of record. In the absence of disability, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). For the foregoing reasons, the preponderance of the evidence is against the claim of service connection for a bilateral foot disorder. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER Service connection for bilateral hearing loss disability is granted. Service connection for tinnitus is granted. Service connection for vertigo is granted. Service connection for a bilateral foot disorder is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs