Citation Nr: 21031869 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-15 539 DATE: May 24, 2021 ORDER Entitlement to service connection for a traumatic brain injury (TBI) is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to an increased rating for an elbow disability is denied. FINDINGS OF FACT 1. The Veteran's TBI is not etiologically related to active service. 2. The Veteran does not have bilateral hearing loss for VA purposes. 3. Tinnitus is not etiologically related to acoustic trauma sustained in active service. 4. The Veteran has right elbow flexion limited to, at worst, 125 degrees with pain. CONCLUSIONS OF LAW 1. The criteria for service connection for a TBI are not met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria for entitlement to service connection for bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2020). 3. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1131 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). 4. The criteria for a rating in excess of 10 percent for a left elbow disability with have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5206 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from November 1976 to March 1977 and from May 1978 to March 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In his April 2016 substantive appeal the Veteran requested a hearing before a Veterans Law Judge. However, he failed to appear, or to show good cause for not appearing, at the June 2016 Board hearing that was scheduled pursuant to his April 2016 request. As such, the Board considers the Veteran's request for a Board hearing withdrawn pursuant to 38 C.F.R. § 20.702 (e). Service Connection 1. Service Connection TBI The Veteran asserts that he incurred a TBI during active duty. Service treatment records (STRs) are silent for complaints of, treatment for, or a diagnosis of a TBI or head trauma. At separation, the Veteran denied a history of head injury. Post-service medical evidence of record shows that the Veteran has a left frontal contusion and skull fracture. However, the post-service medical evidence of record does not show the Veteran to have a diagnosed TBI. The Board acknowledges that the Veteran has not been afforded a VA examination, nor has a medical opinion been obtained in response to his claim of entitlement to service connection for a TBI. However, the Veteran's bare assertions that he experiences symptoms he believes to be due to an in-service TBI are insufficient to trigger VA's duty to assist by providing a VA examination and/or obtaining a medical nexus opinion. As such, a VA examination and medical opinion are not necessary in this case as the evidence currently of record is sufficient to decide the claim on appeal. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). For a disability to be service-connected, it must be present at the time a claim for VA disability compensation is filed or during or contemporary to the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). There is no indication from the record that the Veteran has a diagnosed TBI that is separate and distinct from the memory loss related to his PTSD. Congress has 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. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Accordingly, the Board finds that the preponderance of the evidence is against the appeal and entitlement to service connection for a TBI is not warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Service Connection Bilateral Hearing Loss The Veteran has asserted that he has bilateral hearing loss disability that is related to his in-service noise exposure. The Veteran's DD Form 214 shows that his military occupational specialty (MOS) during active service was combat engineer. As such, the Board concedes that the Veteran was exposed to hazardous noise during active service. Service treatment records (STRs) do not show complaints of, treatment for, or a diagnosis of bilateral hearing loss disability for VA purposes while the Veteran was in active service. Further, the objective audiometric testing results from the Veteran's active service do not show that the Veteran had significant threshold shifts in his hearing acuity while in active service. Post-service medical evidence of record shows that the Veteran received treatment for bilateral hearing loss disability at the VA Medical Center. However, there is no indication from the VA Medical Center treatment notes that his bilateral hearing loss disability has been found to be related to noise exposure sustained in active service. In October 2013, the Veteran was afforded a VA audiology evaluation. Audiometric testing results from that evaluation show the Veteran did not have bilateral hearing loss disability for VA purposes. See 38 C.F.R. § 3.385 (2020). The examiner opined that it was less likely as not that the Veteran's bilateral hearing loss disability was caused by or a result of noise exposure while in active service. In this regard, the examiner noted that based on enlistment and separation audiograms, the Veteran did not have hearing loss, or a hearing injury while in active service, but did have a history of occupational noise exposure following service. The Board finds that the October 2013 VA examination and opinion report is adequate because the examiner thoroughly reviewed the claims file and discussed the relevant evidence, considered the contentions of the Veteran, and provided a thorough supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further, there is no contrary medical opinion of record. Most significantly, the Veteran does not have hearing loss for VA purposes, as shown on 2013 VA examination. Therefore, absent a current diagnosis, there can be no valid claim. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for bilateral hearing loss disability is not warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Service Connection Tinnitus The Veteran has contended that his tinnitus is related to active service. STRs are silent for any in-service complaints of, treatment for, or diagnosis of tinnitus. A review of post-service treatment records revealed that the Veteran reported that his onset began approximately 7-10 years prior to his October 2013 VA audiology examination. The Board notes that the passage of time between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). At an October 2013 VA examination, the examiner opined that the Veteran's tinnitus was likely than not related to active service. As rationale, the examiner noted that the reported onset of the Veteran's tinnitus was several years following after service and the Veteran has a history of occupational noise exposure since service. The Board finds that the October 2013 VA examination and opinion report is adequate because the examiner thoroughly reviewed the claims file and discussed the relevant evidence, considered the contentions of the Veteran, and provided a thorough supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further, there is no contrary medical opinion of record. The Board concedes that the Veteran is competent to report the feeling of tinnitus, or ringing in his ears. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, in this case, he has not provided any contentions as to whether he first experienced these symptoms in service or whether he continued to experience them following service separation. Moreover, the Veteran has not made any specific allegations as to why he believes his tinnitus is related to service or otherwise provided statements in support of the claim. Given such, the Board places much greater probative weight on the VA examination opinion that the Veteran's tinnitus is related to his post-service occupational acoustic trauma and related hearing loss, for the reasons stated above. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for tinnitus is not warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990) 4. Increased Rating Left Elbow Disability The Veteran has asserted that he should have a higher rating for a left elbow disability as his symptoms are worse than those contemplated by the currently assigned rating. At a July 2013 VA examination, the Veteran reported residual pain in the left forearm that radiates to his left shoulder. He stated that the left forearm has been weakened over time and is easily fatigued. The examiner noted that the Veteran's functional limitations are due to increased forearm pain, fatigue and weakness that are limited during flareups. The examiner also found that when the Veteran supinates and pronates wrist, it makes the Veteran's wrist tired and he is unable to use wrist, thus decreasing his wrist function. Upon physical examination, left elbow range of motion testing revealed flexion to 125 degrees, with pain at 5 degrees; and no limitation of extension. The Veteran was able to perform repetitive use testing and there was no additional limitation following repetition. Functional impairment was described as less movement than normal, weakened movement, excess fatigability, and pain on movement. There was localized tenderness or pain on palpation of the joints/soft tissue of the right elbow. Muscle strength testing revealed active movement against some resistance. There was no left elbow ankylosis. The Veteran's left elbow disability was noted to impact his ability to work because he can't lift anything with the left arm due to decreased strength, weakness, and decreased functionality. A review of the record shows that the Veteran receives treatment for various disabilities at the VA Medical Center and from private treatment providers for various disabilities, to include his left elbow disability. A review of the treatment records does not show that the Veteran has symptoms of his left elbow disability that are worse than those reported in the VA examination report of record, to specifically include additional limitation of function during a flare-up or following repeated use over a period of time. The Board notes that the Veteran was scheduled to undergo a VA examination for this claim in February 2017 but did not appear for the examination, and did not provide a reason for missing the examination. When a Veteran fails to report for a VA examination, in the case of an initial rating claim, the claim will be rated upon the record. The Board also notes that the duty to assist is not a one way street. The Board finds that a rating in excess of 10 percent for the Veteran's left elbow disability is not warranted. In this regard, there is no evidence of record showing the Veteran to have limitation of left forearm flexion to 90 degrees or less, or limitation of left forearm extension to 75 degrees or more. In fact, the Veteran had flexion limited to, at worst, 125 degrees, and no limitation of extension. Further, the additional limitation the Veteran experienced due to pain, weakness, lack of endurance, fatigability, or incoordination was accounted for when determining the limitation of motion. Therefore, with consideration of all pertinent disability factors, there remains no appropriate basis for assigning a rating in excess of 10 percent for a left elbow disability. 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Code 5206 (2020). The Board has also considered whether an increased rating may be available under any other applicable diagnostic codes. However, there is no evidence throughout of ankylosis, limitation of extension, impairment of flail joint, impairment of the radius or ulna, or impairment of supination or pronation. Therefore, a higher rating is not warranted under another diagnostic code pertaining to the elbow or forearm. 38 C.F.R. § 4.71a, Diagnostic Codes 5205, 5207, 5208, 5209, 5210, 5211, 5212, 5213. R. Erdheim Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Umez-Eronini, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.