09-26 733 ( 2011 )

Citation Nr: 1104827
Decision Date: 02/07/11 Archive Date: 02/14/11
DOCKET NO. 09-26 733 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Des Moines,
Iowa
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 immune system disorder.
4. Entitlement to service connection for Parkinson's disease.
REPRESENTATION
Appellant represented by: Vietnam Veterans of America
ATTORNEY FOR THE BOARD
C. Lawson, Counsel
INTRODUCTION
The Veteran served on active duty from June 1963 to June 1967.
This matter comes to the Board of Veterans' Appeals (Board) on
appeal from a February 2007 rating decision by a Regional Office
(RO) of the Department of Veterans Affairs (VA).
The issue of service connection for Parkinson's disease is
addressed in the REMAND portion of the decision below and is
REMANDED to the RO via the Appeals Management Center (AMC), in
Washington, DC.
FINDINGS OF FACT
1. Hearing loss was not manifest in service or to a degree of 10
percent within one year of separation and is unrelated to
service.
2. Tinnitus was not manifest in service and is unrelated to
service.
3. The evidence does not show that the Veteran has a current
immune system disorder.
CONCLUSIONS OF LAW
1. The criteria for service connection for bilateral hearing
loss disability are not met. 38 U.S.C.A. §§ 1110, 1131 (West
2002); 38 C.F.R. § 3.303 (2010).
2. The criteria for service connection for tinnitus are not met.
38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002);
38 C.F.R. §§ 3.303, 3.307, 3.309 (2010).
3. An immune disorder was not incurred in or aggravated by active
service, nor may it be presumed to have been incurred as a result
of exposure to certain herbicide agents. 38 U.S.C.A. §§ 1110,
1116, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303,
3.307, 3.309(e).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act (VCAA)
Upon receipt of a complete or substantially complete application,
VA must notify the claimant of the information and evidence not
of record that is necessary to substantiate a claim, which
information and evidence VA will obtain, and which information
and evidence the claimant is expected to provide. 38 U.S.C.A. §
5103(a).
The notice requirements apply to all five elements of a service
connection claim: 1) Veteran status; 2) existence of a
disability; (3) a connection between the Veteran's service and
the disability; 4) degree of disability; and 5) effective date of
the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006).
The notice must be provided to a claimant before the initial
unfavorable adjudication by the RO. Pelegrini v. Principi, 18
Vet. App. 112 (2004).
The notice requirements may be satisfied if any errors in the
timing or content of such notice are not prejudicial to the
claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd
on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).
The RO provided the Veteran pre-adjudication notice by letters
dated in December 2005 and October 2006.
The notification substantially complied with the requirements of
Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the
evidence necessary to substantiate a claim and the relative
duties of VA and the claimant to obtain evidence; and Pelegrini
v. Principi, 18 Vet. App. 112 (2004). The October 2006 notice
letter advised the Veteran of the laws regarding degrees of
disability and effective dates for any grant of service
connection, as is required by Dingess.
VA also has a duty to assist a claimant under the VCAA. VA has
obtained service treatment records; assisted the Veteran in
obtaining evidence; and afforded the Veteran the opportunity to
give testimony before the Board. All known and available records
relevant to the issues on appeal have been obtained and
associated with the Veteran's claims file; and the Veteran has
not contended otherwise.
The Veteran has requested that another audiology examination be
obtained and that an examination be obtained with respect to his
immune disorder claim. VA afforded the Veteran an audiological
examination in December 2005, containing medical opinions as to
the etiology of his hearing loss and tinnitus disabilities.
The Veteran argues that the 2005 examination with respect to
hearing loss is inadequate because the examiner ignored the
positive evidence of record and the examiner's findings were not
supported by reasons and bases. The Veteran noted that his
entrance and separation examinations showed some level of hearing
loss in service. Further, he cited a medical treatise noting
that hearing loss at 6000Hz is often indicative of some level of
hearing loss. However, it is very clear that the examiner
reviewed the service entrance and separation examinations as the
examiner specifically noted that he did so in the examination
report. Further, it was the medical opinion of the examiner that
the results of the Veteran's audiometric testing in service were
reflective of normal hearing. The examiner supported his
conclusions with respect to hearing loss by correctly noting (a
fact undisputed by the Veteran) that STRs noted no problems with
hearing loss and again concluding that hearing loss at separation
was normal.
Given that the findings reported on this examination (1) clearly
included a review of the entire claims folder, including the
relevant service records; (2) were detailed, (3) took into
account the Veteran's history, and (4) included a rationale for
the examiner's conclusions, the examination is deemed adequate
with respect to the hearing loss claim. 38 C.F.R. § 3.159(c)
(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).
The Veteran argues that the 2005 examination with respect to
tinnitus is inadequate because the examiner ignored the positive
evidence of record and the examiner's findings were not supported
by reasons and bases in that the examiner failed to consider his
lay statements as to when the tinnitus commenced. However, it is
very clear that the examiner considered the Veteran's lay
statements as to onset as the examiner specifically noted that he
did so in the examination report: "[e]xact onset of tinnitus is
unknown but veteran stated that he believes that it was present
when he married in 1968." However, it is clear from the
examiner's conclusion (that it was less likely that the Veteran's
tinnitus is related to military service) that the examiner relied
more heavily on the negative contemporaneous STRs and the history
of the Veteran's tinnitus (intermittent in 2003 and 2005 and with
an unusual pattern), as explained in his rationale in the final
paragraph of his examination report.
Given that the findings with respect to tinnitus reported on this
examination (1) clearly included a review of the entire claims
folder, including the relevant service records and the Veteran's
lay statements; (2) were detailed, (3) took into account the
Veteran's history, and (4) included a rationale for the
examiner's conclusions, the examination is deemed adequate with
respect to the tinnitus claim. 38 C.F.R. § 3.159(c) (4); Barr v.
Nicholson, 21 Vet. App. 303, 307 (2007).
The Board is mindful of the fact that the Veteran was not
afforded a VA examination in conjunction with the immune disorder
claim and that he believes an examination is required because he
has "competently and credibly attested to the persistence of his
symptoms over a long period of time." Under the VCAA, VA is
obliged to provide an examination when the record contains
competent evidence that the claimant has a current disability or
signs and symptoms of a current disability, the record indicates
that the disability or signs and symptoms of disability may be
associated with active service; and the record does not contain
sufficient information to make a decision on the claim.
38 U.S.C.A. § 5103A(d). The evidence of a link between current
disability and service must be competent. Wells v. Principi, 326
F.3d 1381 (Fed. Cir. 2003). The threshold for the duty to
conduct an examination is rather low. McLendon v. Nicholson, 20
Vet. App. 79 (2006).
Nonetheless, the low threshold notwithstanding, the probative
evidence of record did not trigger the necessity of an
examination with respect to the immune disorder claim. The only
evidence tending to link the Veteran's claimed immune disorder
with his active service are his personal assertions of various
symptoms, like infection, chills and pain, off and on through the
years. There is nothing in the record to link his various
complaints with a single disability/disease entity and by his own
account, his symptoms are "intermittent". Taken together these
statements do not constitute competent evidence that the claimant
has a current disability or signs and symptoms of a current
disability, nor do they show that the disability or signs and
symptoms of a disability may be associated with active service.
Further, his statements go beyond his recount of his
symptomatology: he asserts an etiological linkage, which, in the
absence of evidence that he has medical training, he is not
competent to do. Thus, the Board finds that the duty to assist
with an examination for the immune disorder claim was not
triggered. See 38 C.F.R. § 3.159(c)(4).
VA has substantially complied with the notice and assistance
requirements and the Veteran is not prejudiced by a decision on
the claim at this time.
Relevant Law
Service connection may be granted if the evidence demonstrates
that a current disability resulted from an injury or disease
incurred or aggravated in active military service. 38 U.S.C.A.
§§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to prevail on the
issue of service connection, there must be (1) medical evidence
of a current disability; (2) medical, or in certain
circumstances, lay evidence of in-service occurrence or
aggravation of a disease or injury; and (3) medical evidence of a
nexus between the claimed in-service disease or injury and the
present disease or injury. Hickson v. West, 12 Vet. App. 247,
253 (1999).
Hearing loss and tinnitus
For VA compensation and pension purposes, 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
3 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(2010).
Organic disease of the nervous system may be presumed to have
been incurred in service if it is manifest to a degree of 10
percent within one year of discharge from service. 38 U.S.C.A.
§§ 1101, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.
On service entrance examination in February 1963, pure tone
thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
15
10
10
25
LEFT
15
10
10
5
There was no treatment for or diagnosis of ear problems, hearing
loss, or tinnitus in service.
On service discharge examination in May 1967, pure tone
thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
10
15
10
20
LEFT
20
15
15
15
10
Puretone thresholds were 35 decibels at 6000 hertz, bilaterally.
In September 2003, the Veteran complained of decreased hearing
and tinnitus. In October 2003, he indicated that his hearing
loss was of gradual onset, and reported both in-service and
recreational noise exposure. In April 2005, he reported service
noise exposure but denied civilian and recreational noise
exposure. He was reported to have bilateral sensorineural
hearing loss. In August 2005, he had some scarring of his
tympanic membranes.
On VA examination in December 2005, pure tone thresholds, in
decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
25
30
25
35
45
LEFT
25
25
20
20
40
Speech recognition scores, using the Maryland CNC test, were 96
percent in the right ear and 92 percent in the left ear.
The examiner noted that the Veteran had served in aviation supply
from 1963 to 1967, and that formal hearing tests on service
entrance and separation had shown hearing within normal limits,
and that there was no mention in the service treatment records of
hearing loss, ear problems, or tinnitus. The Veteran had been
seen by VA in 2003 and 2005, with the results indicating mild
hearing loss with a conductive component. Evaluation in 2003 had
indicated a history of ear infections throughout childhood and
occasional tinnitus in both ears. The Veteran reported that he
had worked on the flight line in service in aviation supply, and
that he was exposed to loud jet engine noise. He reported ear
infections in conjunction with colds as an adult, and could not
remember if he had ear infections as a child. The exact onset of
the Veteran's tinnitus was unknown to the Veteran, but he
believed that it had been present when he was married in 1968.
The examiner indicated that based on the formal hearing tests at
induction and separation, which both indicated normal hearing in
both ears, it was less than likely that the Veteran's current
hearing loss was related to his military service. He also
indicated that given the normal hearing at separation and no
mention of tinnitus in service treatment records, it was less
than likely that the Veteran's tinnitus was related to service.
Based on the evidence, the Board concludes that service
connection is not warranted for bilateral hearing loss
disability. It was not shown in service or for years after
service, and the examiner in December 2005 indicated that it was
less than likely that it was related to service after considering
induction and separation hearing tests. The Veteran argues that
he had hearing loss in service as reflected by the service
medical records, and he cites a study to the effect that hearing
loss at 6000 Hertz if often indicative of some level of hearing
loss. Moreover, he feels that his hearing loss is service
related. However, the VA physician who examined the Veteran in
2005 examined the Veteran himself, including his in-service
audiometry, and concluded that he did not have hearing loss in
service and that his current hearing loss disability is probably
not service related.
The Veteran is competent to report symptoms like problems hearing
because this requires only personal knowledge as it comes to him
through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994).
However, the Board finds that the Veteran's statements with
respect to the origins of his hearing loss are not credible. See
Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) ("Credibility
can be genuinely evaluated by a showing of interest, bias, or
inconsistent statements, and the demeanor of the witness,
official plausibility of the testimony, and the consistency of
the witness' testimony"). This is so because the STRs are
negative for complaints of hearing loss and the Veteran filed a
compensation claim shortly after service (in 1968) for other
disabilities but not for hearing loss. As the Veteran's
statements are contradicted by contemporaneous evidence, the
Veteran's statements are deemed not credible.
Also based on the evidence, the Board concludes that service
connection is not warranted for tinnitus. It was not shown in
service or for years after service, and the examiner in December
2005 indicated that it was less than likely related to the
Veteran's service after considering the Veteran's normal hearing
at service separation and no mention of tinnitus in service
treatment records.
The Veteran's asserted in December 2005 that he thought he had
tinnitus when he was married in 1968, shortly after service. The
Veteran is competent to report symptoms like ringing in the ears
because this requires only personal knowledge as it comes to him
through his senses. Layno, 6 Vet. App. at 470 (1994). However,
the Board finds that the Veteran's statements with respect to the
origins of his hearing loss are not credible. This is so because
the STRs are negative for complaints of tinnitus and the Veteran
filed a compensation claim shortly after service (in 1968) for
other disabilities but not for tinnitus. As the Veteran's
statements are contradicted by contemporaneous evidence, the
Veteran's statements with respect to the origins of tinnitus are
deemed not credible.
Thus, the preponderance of the evidence is against the claims and
there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v.
Derwinski, 1 Vet. App. 49, 55 (1991).
Immune system
Regarding the Veteran's claim for service connection for immune
system disorder, he asserts that since being in Vietnam, his
immune system breaks down, causing intermittent periods of
symptoms like infection, chills, and pain throughout his body.
Service treatment records, including the enlistment physical
examination and the separation physical examination are silent
for complaints or findings of any immune system disorder in
service. The Veteran was treated for a viral upper respiratory
infection, gastroenteritis, a cold, flu syndrome, and urinary
complaints in service. He was normal on service discharge
examination in May 1967.
Post service medical records likewise fail to note any immune
system disorder, although he had ailments in the years after
service as reflected by treatment records. Since the claim was
filed on September 30, 2005, he was treated for pharyngitis in
August 2007, and he reported in November 2007 that he had had an
infection in August 2007 which had resolved. He was treated for
uvulitis in November 2007. In January 2008, he indicated that
those ailments had resolved, but that his uvula was now swollen
again. A different antibiotic was prescribed. In October 2008,
he consulted for burning up, inability to keep fluids in him,
chills, and dehydration. In May 2009, he reported a shoulder
infection and that a cardiac problem had developed from it.
Based on review of the medical evidence above the Board finds
that there is no competent medical evidence showing an immune
disorder. The Board has also considered the lay evidence. The
Veteran clearly believes himself to have an immune disorder, but
lay persons are not competent to opine as to medical etiology or
render medical opinions. Barr v. Nicholson, 21 Vet. App. 303(2007). Lay 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. Jandreau v. Nicholson, 492
F.3d 1372 (Fed. Cir. 2007). In this case none of the three
circumstances cited in Jandreau apply.
There being no competent and credible evidence of an immune
disorder the Board finds that service connection must be denied.
Brammer, 3 Vet. App. 223, 225.
The Veteran also asserts that his claimed immune disorder is
secondary to his presumed exposure to "toxins" during service.
A veteran who served in the Republic of Vietnam during the
Vietnam era shall be presumed to have been exposed during such
service to an herbicide agent (i.e., Agent Orange). 38 C.F.R.
§ 3.307(a)(6)(iii). Furthermore, the diseases listed at
38 C.F.R. § 3.309(e) shall, in turn, be presumptively service
connected if this requirement is met, even though there is no
record of such disease during service.
The Secretary of Veterans Affairs has determined that there is no
positive association between exposure to herbicides and any other
condition for which the Secretary has not specifically determined
that a presumption of service connection is warranted. See
Notice, 72 Fed. Reg. 32395-407 (June 12, 2007). While it is
unclear whether the Veteran served in the Republic of Vietnam,
such a determination need not be reached as the Secretary has
specifically determined that immune system disorders are not
associated with herbicide exposure and, as such, are not subject
to service connection on a presumptive basis. See 68 Fed. Reg.
14,567 (March 26, 2003). Thus, even if the Veteran served in
Vietnam, the preponderance of the probative evidence is against
service connection secondary to presumed Agent Orange exposure.
38 C.F.R. § 3.309(e).
Thus, the preponderance of the evidence is against the claim and
there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v.
Derwinski, 1 Vet. App. 49, 55 (1991).
ORDER
Service connection for bilateral hearing loss is denied.
Service connection for tinnitus is denied.
Service connection for an immune system disorder is denied.
REMAND
The Veteran claims service connection for Parkinson's disease
based on working around toxins while in Vietnam. Effective
August 31, 2010, VA amended 38 C.F.R. § 3.309(e) to add
Parkinson's disease to the list of diseases associated with
exposure to certain herbicide agents. Diseases Associated With
Exposure to Certain Herbicide Agents (Hairy Cell Leukemia and
Other Chronic B-Cell Leukemias, Parkinson's Disease and Ischemic
Heart Disease), 75 Fed. Reg. 53,202 (Aug. 31, 2010) The intended
effect of this amendment is to establish presumptive service
connection for these diseases based on herbicide exposure.
Service treatment records are silent for reference to Parkinson's
disease, and the Veteran was first treated for a tremor in
December 2005. Parkinson's disease has been diagnosed and
treated repeatedly since then.
There were four attempts to obtain service personnel records in
2009, as late as November 2009, with no response provided.
Further attempts to obtain service personnel records should be
made. Thereafter, if necessary, a VA examination should be
obtained as indicated below.
Accordingly, the case is REMANDED for the following action:
1. Obtain the Veteran's service personnel
records or a definitive indication that
they are unavailable.
2. Thereafter, if and only if the
service personnel records reveal
that the Veteran did not serve in
the Republic of Vietnam during the
Vietnam era, schedule the Veteran for
an appropriate VA examination to
address the nature and etiology of his
Parkinson's disease. The claims folder
must be made available to and reviewed
by the examiner in conjunction with the
examination. Any medically indicated
tests should be performed.
Based upon the examination results and
a review of the claims folder, the
examiner should provide an opinion as
to whether it is at least as likely as
not (a 50 percent or more probability)
that the Veteran's current Parkinson's
disease is related to service,
including any exposure to toxins in
service. The examiner should provide a
rationale for all opinions provided.
3. After completion of the above, the RO
should review the expanded record and
determine if service connection is
warranted for Parkinson's disease. The
Veteran and his representative should
be furnished a supplemental statement
of the case addressing any issue which
remains denied. After they are
afforded an opportunity to respond, the
case should be returned to the Board
for appellate review.
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.A.
§§ 5109B, 7112 (West Supp. 2009).
______________________________________________
M. C. GRAHAM
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs