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
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:
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:
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