Citation Nr: 18150459 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 18-22 276 DATE: November 15, 2018 ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. REMANDED Entitlement to service connection for dental problems is remanded. FINDINGS OF FACT 1. The Veteran’s current bilateral hearing loss for VA purposes was not demonstrated in or related to in-service acoustic trauma, did not manifest to a compensable degree within one year of separation from service, or noted to be chronic during service. 2. The evidence of record fails to support a finding that the Veteran has a current tinnitus disability at any time since separation from service in May 1946. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a), 3.385 (2018). 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service in the U.S. Navy from January 1945 to May 1946. In the April 2018 substantive appeal, VA Form 9, the Veteran requested a Travel Board hearing. In August 2018, he changed his request to a video conference hearing before the Board. In August 2018, the Veteran was notified by letter that he was scheduled for a video conference hearing in September 2018. A day before the scheduled hearing, the Veteran’s request to withdraw his hearing request was received. Neither the Veteran nor his representative have raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. In this regard, the Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). An injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the provisions of 38 C.F.R. § 3.303(b) apply only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a)). Service connection can also be established through application of statutory presumptions, including for “chronic diseases,” such as organic diseases of the nervous system which include sensorineural hearing loss and tinnitus, when manifested to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a); see also Cromley v. Brown, 7 Vet. App. 376, 378 (1995) (sensorineural hearing loss); Fountain v. McDonald, 27 Vet. App. 258 (2015) (tinnitus). 1. Bilateral hearing loss The Veteran seeks entitlement to service connection for bilateral hearing loss. Pertinently, 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. The Veteran’s private treatment records and most recent VA examination report demonstrate the Veteran has current bilateral hearing loss for VA purposes. See id. Moreover, the Board concedes that the Veteran was exposed to military acoustic trauma during service, particularly as he stated he fired guns on multiple occasions without hearing protection, thus an in-service event is established. Thus, the remaining element is whether the Veteran’s current bilateral hearing loss is related to his in-service acoustic trauma. Following a VA audiological examination in July 2015, the examiner concluded it was less likely that the Veteran’s bilateral hearing loss was related to active military service. It was explained that the onset of his hearing loss was reported as approximately five years ago, more than 50 years post-service, and evidence supported this as the Veteran passed department of transportation (DOT) examinations for 30 years. Additionally, the Veteran’s service treatment records do not indicate a decrease in hearing and, based on medical research, there is insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. Based on the evidence of record, there is no probative and competent evidence that demonstrates this current disorder is etiologically related to an occurrence during active service, to include in-service acoustic trauma. 38 C.F.R. § 3.303. In sum, the Board finds that the evidentiary record does not include positive probative evidence to establish the third criterion to establish service connection on a direct basis has been met. The Board also notes that the evidence is against a finding that the Veteran’s bilateral hearing loss manifested to a compensable degree within one year of separation from active duty or was chronic during service. A review of the record does not reveal any complaints of continuous symptoms since service, nor is there evidence that the condition manifested within one year or separation, particularly as the Veteran reported the onset of his hearing loss in the mid 2000’s. Thus, bilateral hearing loss is also not warranted in on presumptive basis as a chronic disease. See 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). In finding so, the Board notes that the Veteran’s description of his symptoms and functionality to be credible and competent evidence pertinent to the claim, particularly as it relates to his consistent report of experiencing acoustic trauma during service. However, as it pertains to the limited inquiry as to whether the Veteran’s acoustic trauma results in his currently manifesting hearing loss, the Board places greater probative weight on the clinical findings of the clinicians who have greater training and expertise in performing audiological examinations and reporting the nature and severity of those types of disabilities. Moreover, determining the etiology of the Veteran’s current bilateral hearing loss on a direct basis requires inquiry into internal physical processes which are not readily observable and not within the competence of the Veteran in this case. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994). As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule does not apply and service connection for bilateral hearing loss is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Tinnitus The Veteran also claims entitlement to service connection for tinnitus. With respect to a current disability, the Board notes that lay testimony is competent to establish the presence of observable symptomatology and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994). In addition, 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. Barr v. Nicholson, 21 Vet. App. 303 (2007). The presence of tinnitus is readily identifiable by its features and, thus, is capable of lay observation by the Veteran. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). In this case, review of the claims file does not reflect the Veteran has alleged having symptoms and circumstances reflective of a current tinnitus disability. In fact, at the July 2015 VA audiological examination, the examiner noted that the Veteran denied any current complaints of tinnitus, and thus the examiner did not provide any further etiological opinion. In short, although sympathetic to the Veteran’s claim for service connection, in the absence of evidence demonstrating that the Veteran has a diagnosis of tinnitus, or has identified current treatment, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As a result, the Board finds that the most probative evidence of record reflects the Veteran has not been shown to have a current diagnosis of tinnitus at any time since separation from service in May 1946. As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule does not apply and service connection for tinnitus is denied on direct basis presumptive basis as a chronic disease. Gilbert, 1 Vet. App. at 53. REASONS FOR REMAND 1. Entitlement to service connection for dental problems The Veteran’s entrance examination report showed normal dental but his separation examination report revealed missing teeth, but with no further indication of whether the missing teeth were caused by dental trauma, periodontal or gum disease, or any other dental condition. Review of VA treatment records since separation from active service document the Veteran’s ongoing dental treatment, to include use of dentures. Thus, the Board finds that a VA examination is warranted to determine the current existence and etiology of any current dental condition. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d)(1) (2012); 38 C.F.R. § 3.159(c)(4) (2018) (holding, in relevant part, that in order to trigger VA’s duty to provide an examination or obtain an opinion, there must be insufficient evidence to decide the case). The matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records relevant to dental treatment dated since March 2018. If these records cannot be located, the AOJ must specifically document the attempts made to locate them and notify the Veteran. 2. Then, schedule the Veteran a VA examination with an appropriate clinician for his dental disorder. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s current dental disorder began during active service or is related to an incident of service, to include consideration of his missing teeth at the time of separation from service in May 1946. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Then, review the examination report and medical opinions to ensure that the requested information was provided. If any report or opinion is deficient in any manner, the RO must implement corrective procedures and complete any additional development deemed appropriate. (Continued on the next page)   4. Then, readjudicate the remanded issue. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case and an appropriate period of time should be allowed for response. Then, the appeal must be returned to the Board for appellate review. T. Blake Carter Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.L. Reid, Associate Counsel