Citation Nr: 1806383 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-03 858 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to service connection for bilateral foot neuropathy, to include as secondary to diabetes mellitus. 3. Entitlement to service connection for left ear hearing loss. 4. Entitlement to service connection for tinnitus. 5. Entitlement to service connection for right ear hearing loss. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Erin J. Carroll, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1970 to December 1971. This case is before the Board of Veterans' Appeals (Board) on appeal from a rating decision in June 2010 from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In October 2017, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing. A transcript of the hearing has been associated with the record. FINDINGS OF FACT 1. Prior to the promulgation of a decision in the appeal, at the October 2017 hearing, the Veteran withdrew his appeal concerning the issues of entitlement to service connection for diabetes mellitus and bilateral foot neuropathy. 2. Left ear hearing loss has not been linked by competent, probative evidence to service. 3. Current tinnitus is not caused or aggravated by a disease or injury in active service. 4. The Veteran does not have a hearing loss disability of the right ear as defined by VA regulations. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran regarding the issue of entitlement to service connection for diabetes mellitus have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 2. The criteria for withdrawal of an appeal by the Veteran regarding the issue of entitlement to service connection for bilateral foot neuropathy have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 3. The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). 4. The criteria to establish service connection for tinnitus have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 5. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Neither the Veteran nor his representative has raised any 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). II. Withdrawal of Issues Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Except for appeals withdrawn on the record at a hearing, a substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. At the October 2017 hearing, the Veteran withdrew his appeal concerning the issues of entitlement to service connection for diabetes mellitus and bilateral foot neuropathy. Hence, there remain no allegations of errors of fact or law for appellate consideration regarding these issues. Accordingly, the Board does not have jurisdiction to review these issues and they are dismissed. III. Entitlement to Service Connection Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. See Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013); Hickson v. West, 12 Vet .App. 247, 253 (1999). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In addition, certain listed chronic diseases, such as tinnitus and sensorineural hearing loss, as diseases of the nervous system, may be presumed to have been incurred during service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C. §§ 1101, 1112; Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.307(a)(3), 3.309(a). An alternative method of establishing incurrence or aggravation and a nexus to service is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303(b). Continuity of symptomatology may be established if a claimant can demonstrate that a condition was noted during service; (2) there is a post-service continuity of the same symptomatology; and (3) a nexus between the present disability and the post-service symptomatology. The theory of continuity of symptomatology can be used only in cases involving those diseases explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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, 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. Thresholds for normal hearing are between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley, 5 Vet. App. at 157. The Veteran seeks service connection for bilateral hearing loss and tinnitus, which he says are related to excessive noise exposure during his military service in Vietnam. Two audiological examinations were performed prior to the Veteran's enlistment, neither of which demonstrated hearing loss for VA purposes at that time. In fact, the second examination, performed in September 1969, demonstrated an improvement in the Veteran's hearing prior to enlistment. Upon separation from service, the Veteran produced a normal whispered voice test. Additionally, he affirmatively denied having any audiological symptoms or disabilities at the time of the separation examination. Thus, the available service treatment records (STRs) tend to establish that hearing loss was not present during service. A VA audiological examination conducted in January 2010 shows auditory thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 20 20 25 20 LEFT 15 10 15 25 40 Because there is an auditory threshold greater than 40 decibels in the left ear, hearing loss for VA purposes is established for that ear. See 38 C.F.R. § 3.385. This same VA examination reflects a diagnosis of tinnitus. In light of this evidentiary record, the first requirement to establish service connection, evidence of a current disability, has been met as to the claims for left ear hearing loss and tinnitus. See Walker, 708 F.3d at 1337. Next, the evidence of record indicates that the Veteran suffered acoustic trauma during service. At his Board hearing, the Veteran credibly testified that he was stationed close to an ammunition dump while in Vietnam. During this time, he was exposed to explosions several times per month, as well as noise from a generator and nearby helicopters. He also stated that he noticed hearing loss and a buzzing in his ears soon after separation from service, but that he did not seek treatment until 2009. A. Left Ear and Tinnitus The Board finds that the record does not contain evidence indicating that it is at least as likely as not that the currently diagnosed left ear hearing loss and tinnitus are a result of the noise exposure during service. The January 2010 examiner determined the Veteran's hearing loss and tinnitus were not related to service based upon his reported onset of symptoms as only 10 years prior to the examination, as well as the lack of change in his hearing ability and absence of reports of tinnitus during service. The Board finds that the VA examiner's opinion is adequate and the most probative evidence of record on this matter. The examiner detailed the relevant evidence in the claims file, properly accepted as true the Veteran's account of in-service noise exposure, and documented his reported onset of hearing loss and tinnitus as roughly 10 years prior to the examination. Nevertheless, the examiner concluded that the Veteran's current hearing loss and tinnitus were not causally or etiologically related to his military service, including noise exposure, based on a thorough review of the claims file and consideration of the Veteran's service treatment records, which reflected no changes in his hearing abilities, as well as his reported onset of symptoms. Although the Board has considered the lay statements of the Veteran, he does not have medical expertise, and therefore is not competent to give a probative opinion concerning the etiology of his hearing loss or tinnitus. Furthermore, he has presented conflicting reports as to when he first noticed his hearing loss and tinnitus, stating, on separate occasions, that the symptoms began shortly after service, as well as 10 years prior to the January 2010 VA examination. He has also stated that he did not seek treatment for his audiological disabilities until 2009, nearly 40 years after his separation from service. Therefore, any such assertions of a medical link between the hearing loss and military service are not probative. Although disabilities of the nervous system, including sensorineural hearing loss and tinnitus, are subject to presumptive service connection; service connection would not be warranted unless the left ear hearing loss or tinnitus manifested to a compensable degree within a year of the Veteran's release from active service in December 1971, or if he exhibited a continuity of symptomatology since that time. In this case, there is no evidence of left ear hearing loss or tinnitus manifested to a compensable degree within one year from discharge, nor is there a showing of a continuity of symptomatology. Ultimately, the weight of the evidence is against a finding of continuity of symptoms of left ear hearing loss or tinnitus dating back to service or a presumptive period; because the VA examiner provided a well-supported opinion that the disabilities were not related to in-service noise exposure; and the record contains the Veteran's report that the onset of his audiological symptoms did not begin until around 2000 and that he did not seek treatment until 2009. In conclusion, the weight of the evidence is against the claims for service connection for left ear hearing loss and tinnitus. Reasonable doubt does not arise and the claims are denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). B. Right Ear As shown above, the January 2010 VA examination did not show hearing loss for VA purposes in the right ear based upon puretone thresholds and the speech discrimination score. In order to be considered for service connection, a claimant must first have a disability. In Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992), the Court noted that Congress specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Id.; see also Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes). The Board notes that the Veteran is competent to report a history of in-service noise exposure. See 38 C.F.R. § 3.159 (a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). However, a review of the record shows no diagnosis of right ear hearing loss, aside from the Veteran's lay statements. Hearing loss disability for VA purposes is not a simple medical condition capable of lay observation or diagnosis, and the Veteran is not shown to be qualified through specialized education, training, or experience to diagnose a hearing loss disability. Under these circumstances, a basis upon which to establish service connection has not been presented and the appeal must be denied. ORDER The appeal concerning the issue of entitlement to service connection for diabetes mellitus is dismissed. The appeal concerning the issue of entitlement to service connection for bilateral foot neuropathy is dismissed. Entitlement to service connection for left ear hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for right ear hearing loss is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs