Citation Nr: 1806910 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-07 486 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a sleep disorder. 2. Entitlement to service connection for diabetes. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. 5. Entitlement to service connection for vertigo. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1970 to September 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2012 and January 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In November 2017, the Veteran attended a Travel Board Hearing before the undersigned Veterans Law Judge, and a transcript of the hearing is of record. The issue of entitlement to service connection for vertigo is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In August 2017, the Veteran submitted a written statement and testified at his Board hearing that he wishes to withdraw his service connection claims for diabetes and a sleep disorder. 2. The Veteran's bilateral hearing loss was not caused by or related to active military service. 3. It is at least as likely as not that the Veteran's tinnitus is related to active service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the substantive appeal as to the issues of entitlement service connection for diabetes and a sleep disorder have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2017). 2. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.309, 3.385 (2017). 3. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of Claim A veteran may withdraw his or her appeal in writing at any time before the Board promulgates a final decision. 38 C.F.R. § 20.204 (2017). When a veteran does so, the withdrawal effectively creates a situation in which an allegation of error of fact or law no longer exists. In such an instance, the Board does not have jurisdiction to review the appeal, and a dismissal is then appropriate. 38 U.S.C. § 7105(d) (2012); 38 C.F.R. §§ 20.101, 20.202 (2017). Here, in November 2017, the Veteran submitted a written statement and testified at a hearing before the undersigned Veterans Law Judge, requesting his claims for entitlement to service connection for diabetes and a sleep disorder to be withdrawn. In view of the Veteran's expressed desire, the Board concludes that his intent was to withdraw these claims and further action with regard to these claims is not appropriate. The Board no longer has jurisdiction over these claims and, as such, must dismiss the appeal as to these issues. Service Connection The Veteran is claiming entitlement to service connection for bilateral hearing loss and tinnitus. Specifically, under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases, including sensorineural hearing loss and tinnitus, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). Bilateral Hearing Loss In cases where a hearing loss disability is claimed, 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 above frequencies 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 (2017). 38 C.F.R § 3.385 does not preclude service connection for a current hearing loss disability where hearing was within normal limits on audiometric testing at separation from service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, when audiometric test results at a veteran's separation from service do not meet the requirements of 38 C.F.R. § 3.385, a veteran may nevertheless establish service connection for current hearing disability by submitting medical evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Where the requirements for hearing loss disability pursuant to 38 C.F.R. § 3.385 are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385. Hensley, 5 Vet. App at 155. If the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflect an upward shift in tested thresholds while in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post service audiometric testing produces findings which meet the requirements of 38 C.F.R. § 3.385; then the rating authorities must consider whether there is a medically sound basis to attribute the post service findings to the injury in service, or whether these findings are more properly attributable to intervening causes. Id. at 159. In this case, the Board determines that service connection is not warranted for bilateral hearing loss. The Veteran's service treatment records report that he was exposed to significant noise in service, and is consistent with his rating in the Navy. However, the service treatment records do not indicate complaints or treatment for bilateral hearing loss, nor was it clinically indicated during service. Specifically, the Veteran's May 1970 separation examination and report of medical history do not reveal any hearing loss for VA purposes. Moreover, the Veteran's May 1977 reenlistment examination does not reflect hearing loss for VA purposes or any significant threshold shifts. Further, the post-service medical evidence includes statements to the Veteran's medical providers that he had bilateral hearing loss since service. However, the objective medical evidence does not demonstrate any symptoms, manifestations, or a diagnosis related to hearing loss until approximately 2008. Therefore, continuity of symptoms is not shown based on the clinical evidence, including for purposes of the chronic disease presumption under 38 C.F.R. § 3.307(a)(3). As part of this claim, the Board recognizes the statements from the Veteran regarding his history of hearing loss since service. In this regard, while the Veteran is not competent to make a diagnosis related to this disorder, as it may not be diagnosed by its unique and readily identifiable features, and thus requires a determination that is "medical in nature," he is nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Nevertheless, the Board determines that the Veteran's reported history of continued symptomatology since active service, while competent, is nonetheless not probative in establishing continuity of symptomology. As an initial matter, the large gap in treatment for hearing loss weighs against the Veteran's claims. Further, the Veteran's treatment records contradict his assertions that his symptoms have persisted since service. Specifically, the Veteran's history of hearing loss is inconsistent with his May 1970 separation examination and his July 1976 reenlistment examination. Lastly, the Board notes that the Veteran filed a claim for VA benefits almost 30 years prior to filing the claim on appeal. Therefore, the fact that the Veteran was aware of the VA benefits system and sought out a claim for other benefits, but made no reference to the disorder he now claims, weighs heavily against his credibility. Next, service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's bilateral hearing loss to active duty, despite his contentions to the contrary. Here, the Board places significant value on the opinions of the VA examiner who evaluated the Veteran's hearing loss in May 2012, as the examiner performed a detailed review of the Veteran's service and medical treatment records and a thorough physical examination. Specifically, the examiner opined that the Veteran's bilateral hearing loss was not related to service because the Veteran's hearing was normal at separation and he did not have any complaints until many years later. Moreover, given that the Veteran did not have a significant shift in hearing during service or shortly thereafter, his current hearing loss is less likely than not related to any in-service noise exposure. In arriving at this conclusion, the Board acknowledges the opinions from the Veteran's private medical providers, including from April 2012 and March 2014, which reflect that his hearing loss was related to his in-service noise exposure. Nevertheless, the Board finds these opinions to be less probative as there is no indication that the medical providers reviewed the Veteran's service treatment records. Further, they did not provide a sufficient rationale for their opinions. Moreover, the opinions are also not supported by the objective medical evidence. Additionally, the Board has considered the statements made by the Veteran relating his hearing loss and tinnitus to active service. The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the Veteran is not competent to provide testimony regarding the diagnosis and etiology of hearing loss. See Jandreau, 492 F.3d at 1377, n.4. Specifically, hearing loss is not a disorder that can be diagnosed by its unique and identifiable features as it does not involve a simple identification that a layperson is competent to make. Instead, the diagnosis of dysfunctions and disorders, and their respective etiologies, are medical determinations and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, to the extent that the Veteran believes that his hearing loss is related to service, he is a lay person without appropriate medical training and expertise to provide a medical diagnosis and etiological opinion. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the service connection claims for hearing loss, and there is no doubt to be otherwise resolved. As such, the appeal is denied. Tinnitus In this case, the Board determines that service connection is warranted for the Veteran's tinnitus. Here, as previously noted, the Board has conceded in-service noise exposure. Next, the Veteran's credible statements, in conjunction with the objective medical evidence, including the opinions from the Veteran's private medical providers in April 2012 and March 2014, reflect that his tinnitus was caused by acoustic trauma from his in-service noise exposure. The Board acknowledges the negative evidence from the May 2012 VA examiner which indicates that the Veteran's tinnitus is not related to service. Nevertheless, the examiner's opinions, as it related to tinnitus, appear to be based solely on the fact that the medical records do not contain reports of tinnitus until after service. Therefore, given that the Veteran is competent and credible to report symptoms of tinnitus, the Board finds that the evidence is at least in equipoise. Therefore, considering the totality of the evidence, the Board resolves all reasonable doubt in favor of the Veteran and grants service connection for tinnitus. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. VA Duty to Notify and Assist The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA), which includes an enhanced duty on the part of VA to notify a veteran of the information and evidence necessary to substantiate claims for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). The VCAA also redefines the obligations of VA with respect to its statutory duty to assist veterans in the development of their claims. 38 U.S.C. §§ 5103, 5103A. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided notice letters informing him of both his and VA's obligations. Moreover, there is no indication of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Therefore, additional notice is not required and any defect in notice is not prejudicial. With respect to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C. § 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 must also 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)). Here, the Board finds that all necessary assistance has been provided to the Veteran. Specifically, all VA treatment records and relevant private treatment records have been obtained. The Veteran has also been provided with a VA examination. Upon review of the examination report, the Board observes that the examiner reviewed the Veteran's past medical history, recorded his current complaints and history, conducted appropriate evaluations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The VA examination report is therefore adequate for the purpose of rendering a decision on appeal. 38 C.F.R. § 4.2 (2017); Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, no further notice or assistance is required to fulfill VA's duty to assist in the development of the above-cited claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER The issues of entitlement to service connection for a sleep disorder and diabetes are dismissed without prejudice. Service connection for bilateral hearing loss is denied. Service connection for tinnitus is granted. REMAND After a careful review the record, the Board finds the Veteran's service connection claim for vertigo requires a remand for a VA examination. Specifically, the record contains a March 2014 private opinion from the Veteran's private medical provider which states that the Veteran's vertigo "may" be related to his in-service noise exposure. As such, a VA examination is warranted based upon the evidence of record. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Obtain any and all treatment records from the VA Medical Center in Colorado Springs, Colorado since May 2017, and any other VA facility from which the Veteran has received treatment. If the Veteran has received additional private treatment, he should be afforded an appropriate opportunity to submit them. 2. Schedule the Veteran for a VA examination to determine the nature, etiology, and current severity of his vertigo. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. If the examiner cannot provide any of the requested opinions without resorting to speculation, he or she should provide an explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Following any additional indicated development, the RO should review the claims file and re-adjudicate the Veteran's vertigo claim on appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. 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. §§ 5109B, 7112 (2012). ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs