judge_norm: THERESA M CATINO

disposition: granted

condition: back

text:
Citation Nr: 1011000
Decision Date: 03/24/10    Archive Date: 03/31/10

DOCKET NO.  07-08 177	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia

THE ISSUES

1.  Entitlement to service connection for a low back
disorder.

2.  Entitlement to service connection for a neck disorder.

3.  Entitlement to service connection for right ankle
disorder.

4.  Entitlement to service connection for left ankle
disorder.

5.  Entitlement to service connection for right wrist
disorder, to include as secondary to a service-connected
disability.

6.  Entitlement to service connection for right elbow
disorder.

7.  Entitlement to service connection for left elbow
disorder.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

C. Bosely, Associate Counsel

INTRODUCTION

The Veteran had active service from July 1978 to July 2004.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a September 2004 rating decision of
the Department of Veteran's Affairs (VA) Regional Office (RO)
in Atlanta, Georgia.

The Veteran testified before the undersigned Acting Veterans
Law Judge in a hearing at the RO in July 2009.  A transcript
of the hearing has been associated with the claims file.
During the Board hearing, the Veteran submitted additional
evidence with a waiver of initial RO jurisdiction.  The Board
has accepted this additional evidence for inclusion into the
record on appeal.  See 38 C.F.R. �� 20.800; 20.1304.

The issues of entitlement to service connection for right
ankle, left ankle, right wrist, right elbow, and left elbow
disabilities are addressed in the REMAND portion of the
decision below and are REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC.

FINDING OF FACT

The Veteran sustained chronic low back and neck disabilities,
characterized as degenerative joint disease of the lumbar
spine and cervical spine, during his active duty.

CONCLUSIONS OF LAW

1.  Resolving all doubt in the Veteran's favor, the current
degenerative joint disease of his lumbar spine was incurred
in active service.  38 U.S.C.A. �� 1101, 1110, 1131, 5103,
5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. �� 3.102,
3.159, 3.303, 3.304, 3.307, 3.309 (2009).

2.  Resolving all doubt in the Veteran's favor, the current
degenerative joint disease of his cervical spine was incurred
in active service.  38 U.S.C.A. �� 1101, 1110, 1131, 5103,
5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. �� 3.102,
3.159, 3.303, 3.304, 3.307, 3.309 (2009).

REASONS AND BASES FOR FINDING AND CONCLUSIONS

Duties to Notify and Assist

At the outset, the Board notes that, in November 2000, the
Veterans Claims Assistance Act of 2000 (VCAA) was signed into
law.  See 38 U.S.C.A. �� 5100, 5102, 5103, 5103A, and 5107
(West 2002).  To implement the provisions of the law, VA
promulgated regulations codified at 38 C.F.R. �� 3.102,
3.156(a), 3.159, 3.326(a) (2009).

The VCAA and its implementing regulations essentially
include, upon the submission of a substantially complete
application for benefits, an enhanced duty on the part of VA
to notify a claimant of the information and evidence needed
to substantiate a claim, as well as the duty to notify the
claimant what evidence will be obtained by whom.  38 U.S.C.A.
� 5103(a); 38 C.F.R. � 3.159(b).  In addition, the VCAA
defines the obligation of VA with respect to its duty to
assist a claimant in obtaining evidence.  38 U.S.C.A.
� 5103A; 38 C.F.R. � 3.159(c).

Considering the record in light of the above criteria, and in
view of the favorable disposition, the Board finds that all
notification and development action needed to render a fair
decision on the issues of entitlement to service connection
for a low back disorder and a neck disorder has been
accomplished.

Analysis

The Veteran contends that he has low back and neck
disabilities that originated during his active duty.

Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. � 1110; 38 C.F.R. � 3.303(a).  Service connection
generally requires credible and competent evidence showing:
(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.  See
Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009);
Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004);
Caluza v. Brown, 7 Vet. App. 498 (1995).

Also, certain chronic diseases, including arthritis, may be
presumed to have been incurred during service if manifested
to a compensable degree within one year of separation from
active service.  38 U.S.C.A. �� 1112, 1113, 1137; 38 C.F.R.
�� 3.307, 3.309.  For the showing of chronic disease in
service, there is required a combination of manifestations
sufficient to identify the disease entity and sufficient
observation to establish chronicity at the time.  If
chronicity in service is not established, a showing of
continuity of symptoms after discharge is required to support
the claim.  38 C.F.R. � 3.303(b).  Service connection may
also be granted for any disease diagnosed after discharge
when all of the evidence establishes that the disease was
incurred in service.  38 C.F.R. � 3.303(d).

In making all determinations, the Board must fully consider
the lay assertions of record.  A layperson is competent to
report on the onset and continuity of his current
symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470
(1994) (a veteran is competent to report on that of which he
or she has personal knowledge); Espiritu v. Derwinski, 2 Vet.
App. 492, 494-95 (1992).  Lay evidence can also be competent
and sufficient evidence of a diagnosis or to establish
etiology if (1) the 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); Jandreau v. Nicholson, 492 F.3d 1372,
1376-77 (Fed. Cir. 2007).

The Board's duty is to assess the credibility and weight of
the evidence.  See Wood v. Derwinski, 1 Vet. App. 190,
193 (1991) (BVA has a duty to assess).

In the present case, after a careful review of the evidence,
the Board finds that, by extending the benefit of the doubt
to the Veteran, service connection is warranted for a lumbar
spine disability and a cervical spine disability.

At the July 2009 hearing, the Veteran testified that he was a
helicopter mechanic during service.  These responsibilities
required lifting tools and equipment weighing up to 50
pounds, including over his head and up to 20 feet to the top
of helicopters.  He also had to drag approximately 300-pound
helicopter blades.  He served 26 years, and his symptoms
increased in severity throughout his service.

With specific regard to the low back, the Veteran testified
at the July 2009 hearing that he remembered stepping into
holes during nighttime field exercises, which put a strain on
his back.  Also, the lifting of helicopter blades into their
cradles put a lot of strain on his back.  He went on sick
call for his back and received medication.  He was diagnosed
in 1987 with a lumbar strain, and again in 2003.  His in-
service symptoms consisted of spasms, locking, stiffness, and
pain, and these symptoms continued until his discharge.  When
he first sought treatment after his discharge in July or
August 2004, he was diagnosed with chronic back pain due to a
compressed lumbar spine disc.  Currently, his symptoms
consisted of stiffness in the morning and aching.  The pain
would lessen after 5 to 10 minutes, but never went entirely
away.  He described the pain as a "nagging, continuous
aching" pain.  Plus, he had limitation of motion.

With regard to the cervical spine, the Veteran testified at
the hearing that his work during service involved a lot of
neck pulling.  He also carried heavy equipment and his duffle
bag on the top of his head.  He went on sick call during
service.  His symptoms persisted after his discharge, and he
first sought treatment after service in July or August 2004.
Currently, the Veteran testified, he had stiffness, which
would sometimes "catch," so that he had to roll his head to
the side to bring it back up straight.

The Veteran further testified that his treating, non-VA
physician provided a statement linking the current disorders
to his service.

In relevant part, service treatment records (STRs) reflect a
first complaint of a stiff neck in February 1981, after
looking upwards quite a lot the prior day.  The assessment
was muscle spasm.

Then, in February 1987, the Veteran complained of low back
pain beginning the day prior without injury, but after a
helicopter flight.  He had performed some heavy lifting prior
to onset of the pain.  There was tenderness on palpation, and
the assessment was muscle strain.

Several years later in January 2003, while the Veteran was
still on active service, he complained of neck pain for the
prior 3 to 4 years.  An X-ray showed a small bony spur
extending from the inferior endplate of C4  through C6
vertebral bodies.  A lumbar spine X-ray was also performed,
and it showed small osteophyte formation involving T2
vertebral body thought to be related to minimal degenerative
changes.  On clinical evaluation, the assessment was
degenerative joint disease (DJD).

An in-service physical therapy note from September 2003 shows
that the Veteran complained of low back pain for a few years
with history of trauma as an aircraft mechanic due to
repetitive lifting.  He remembered one particular episode of
lifting a rotor blade that had aggravated his back.

During his October 2003 retirement examination, the Veteran
endorsed a history of arthritis and recurrent back pain.  He
explained that he was undergoing physical therapy for back
pain, which showed signs of arthritis.  Upon clinical
evaluation, physical examination revealed complaints of neck
stiffness.  The summary of defects and diagnoses lists DJD of
the neck, plus back pain.  The discharge examiner noted
multiple joint symptoms consistent with arthritis,
significant trauma during career.

In summary, the Veteran's STR shows multiple instances of low
back and neck complaints during his service, which was
diagnosed as DJD.

Prior to his July 2004 discharge, the Veteran underwent a QTC
examination in March 2004 in connection with his present
claim.  The examiner had no records to review, but noted the
Veteran's self-reported medical history and current
complaints.  With regard to the cervical spine, the Veteran
reported a diagnosis in February 1997.  His current
complaints consisted of non-radiating pain in the cervical
spine area for the prior 23 years.  He described the pain as
"crushing, aching, sticking and cramping, burning and
sharp," and caused by physical activity.  He rated the pain
as 10 out of 10 in severity.  The pain was constant.
Functional impairment involved heavy lifting and bending.
With regard to the lumbar spine, the Veteran reported onset
in February 1997.  He had constant pain in the low back,
which he rated as 10 out of 10 in severity, and described as
"aching, burning, and sharpness."  He had functional
impairment preventing heavy lifting and bending.

On physical examination, the examiner found normal posture
and gain, and equal leg lengths.  There were no signs of
intervertebral disc syndrome.  Range of motion testing of the
cervical spine and lumbar spine was normal, and X-rays were
"negative."  Based on the results of the examination, the
examiner diagnosed no pathology of the Veteran's cervical
spine or lumbar spine.

Following his July 2004 discharge, the Veteran first sought
treatment in October 2004 with complaints of pain.  In
December 2004, the Veteran's treating physician diagnosed
intervertebral disc degeneration of the lumbar spine and
cervical spine, as seen on X-ray.  A handwritten note
(consistent with a magnetic resonance imaging scan (MRI)
report) indicates disc desiccate at L4-5, broad-based bulge
(BBB) mild at L3-4, L4-5, and L5-S1, and small central bulge
at C5-6 and C6-7, plus "o/c" at T1 and T1-2.  On follow-up
in January 2005, the physician again noted the MRI results
and diagnosed bulging intervertebral disc in the cervical
spine and lumbar spine.

In an April 2005 letter written in support of the Veteran's
present claim, the physician wrote that in her professional
medical opinion, it is more likely than not that the
Veteran's conditions are much more severe than indicated (by
the RO) and should be service-connected.  The Veteran was on
medication to suppress some of his pain, and he was
undergoing physical therapy.

In February 2007, the Veteran underwent a VA examination.  In
reviewing the Veteran's STR, the examiner noted that there
were multiple records confirming treatment for symptoms of
all the claimed spinal segments.  The Veteran reported that
MRIs revealed degenerative changes of the cervical spine and
lumbar spine, but the VA examiner commented that he did not
have the MRI reports available.  The VA examiner also
performed a thorough clinical evaluation and noted there was
no limitation of motion and X-rays were normal.  The VA
examiner's diagnosis was normal examination of the cervical
spine and lumbar spine with report of degenerative disc
disease (DDD) on prior examination.  The VA examiner did not
offer an etiology opinion.

More recently, a January 2009 non-VA chest X-ray confirmed
mild degenerative changes involving the thoracic spine.
Otherwise, the post-service treatment records show that the
Veteran continuously underwent follow-up treatment for his
complaints of low back and neck pain throughout the appellate
period.

In short, X-rays taken of the Veteran's cervical spine during
service in January 2003 showed a small bony spur extending
from the inferior endplate of C4  through C6 vertebral
bodies.  X-rays taken of his lumbar spine at that time showed
small osteophyte formation involving T2 vertebral body
thought to be related to minimal degenerative changes.  On
clinical evaluation, the assessment was degenerative joint
disease (DJD).  In addition, post-service treatment records
show a diagnosis of degenerative changes of the Veteran's
lumbar spine and cervical spine in December 2004-within six
months of his July 2004 discharge.

Further, the Veteran has testified that he has experienced
continuous low back and neck symptoms since service.  His
assertions are credible and competent evidence in support of
his claim.  See Davidson, 581 F.3d at 1316; Jandreau , 492
F.3d at 1376-77.  In any event, post-service treatment
records confirm his testimony, and his treating physician has
opined that the disorders should be service-connected.

For these reasons, the Board finds the evidence to be at
least in a state of relative equipoise in showing that a low
back and neck disability were incurred in active service.
38 U.S.C.A. � 1110, 1131; 38 C.F.R. � 3.303.  Therefore, by
extending the benefit of the doubt to the Veteran, service
connection for degenerative joint disease of the lumbar spine
and the cervical spine is warranted.

ORDER

Service connection for degenerative joint disease of the
lumbar spine is granted.

Service connection for degenerative joint disease of the
cervical spine is granted.

REMAND

After a careful review of the record, the Board finds that
the Veteran's claims of entitlement to service connection for
left and right elbow, left and right ankle, and right wrist
disabilities must be remanded for further action.

With regard to the Veteran's elbows, STRs include a June 1993
treatment note showing that he complained of right elbow pain
after getting hit on the lateral aspect of the right elbow
with a baseball one month prior.  X-rays were negative, and
the assessment was a contusion.  During his October 2003
discharge examination, the Veteran offered no complaints
related to his elbows, and a physical examination was
"normal."  During a pre-discharge QTC examination, the
Veteran reported a diagnosis of "bilateral elbows" in June
1994, with pain secondary to physical fitness activities
rather than injury.  His symptoms consisted of occasional
popping and grinding pain, causing a limitation of function.
On physical examination, the examiner found normal range of
motion; X-rays were "negative."  The examiner diagnosed no
diagnosis or pathology of the bilateral elbows.

The Veteran testified at his July 2009 Board hearing that he
was a helicopter mechanic during service, which put strain on
his elbows.  He had pain in-service and currently has sharp
pain after picking or lifting something up if it requires
bending the elbow.

The post-service treatment records include an October 2005
non-VA note showing that the Veteran complained of elbow
pain.  Physical examination of the elbows was normal.  The
assessment was joint pain localized in the elbow, right
greater than left, possibly tennis elbow.  An October 2005 X-
ray of the elbows showed minimal hypertrophic spurring,
posterior olecranon fossa.  On follow-up physical therapy in
November 2005, the Veteran complained of bilateral elbow pain
for "years" increased over the prior 6 months since
returning to work.  The assessment was: significantly
decreased bilateral gross grip strength and excessive pain
with grip test in pronated forearm position; lateral
epicondylitis (tennis elbow).

The Veteran underwent a VA examiner in February 2007.  The
examiner in reviewing the Veteran's STR noted that there were
multiple records confirming treatment and service for
symptoms of all the claimed joints, which, the Board notes,
would include the bilateral elbows.  The VA examiner also
considered the Veteran's in-service and post-service
symptoms, as noted.  On physical examination, the VA examiner
found no limitation of motion.  X-rays were normal.  The VA
examiner's assessment was normal examination of the bilateral
elbows with reported symptoms consistent with mild
intermittent lateral epicondylitis.  The VA examiner did not
provide an etiology opinion.

With regard to the Veteran's ankles, STRs include an August
1997 treatment note showing that he complained of right
Achilles pain after a softball injury.  The assessment was
Achilles tendonitis.  Then in May 1999, he complained of
jumping off a vehicle and twisting his left ankle.  On
physical examination, there was edema and tenderness.  X-rays
revealed soft tissue enlargement compatible with ankle edema
with no radiographic evidence of fracture.  The assessment
was sprain.  During his October 2003 retirement examination,
the Veteran denied any ankle complaints, but physical
examination revealed positive crepitus in the left ankle.
The summary of defects and diagnoses lists DJD of the left
ankle.

A March 2004 QTC examination, however, showed "negative X-
rays of the bilateral ankles.  The assessment was no
diagnosis and no pathology of the bilateral ankles.  A VA
examination in February 2007 likewise resulted in an
assessment of "normal examination of both ankles," with
"normal" X-rays of the bilateral ankles.

During his July 2009 Board hearing, the Veteran testified
that he rolled his ankles during physical training in
service.  This would cause a strain, and he would then have a
lot of tenderness.  Due to turning his ankles so much, he
felt that his ankles were weaker by the time he was
discharged.  The Veteran further testified that his symptoms
have continued to the present, and he has been diagnosed with
tendinitis and arthritis.

In light of this evidence, the Board finds that remand for a
VA examination is necessary before deciding the claims of
service connection for disorders of the left and right elbow
and left and right ankles.  The record reveals credible and
competent evidence of continuous symptoms since service;
evidence establishing that an event, injury, or disease
occurred in service; and (3) an indication that there is a
current disability that may be associated with the Veteran's
service.  Because the record otherwise lacks sufficient
competent evidence upon which the Board can make a decision,
remand for a VA examination is required.  See 38 U.S.C.A.
� 5103A(d); 38 C.F.R. � 3.159(c)(4)(i).

With regard to the Veteran's right wrist, STRs include an
April 2002 treatment record showing that he complained of
recurrent right wrist pain.  Physical examination revealed a
nodule at the digital carpo-ulnar junction of the right
wrist.  An X-ray was "negative."  During his discharge
examination in October 2003, the Veteran did not complain of
any symptoms related to the right wrist; physical examination
was "normal."  At his March 2004 QTC examination, the
Veteran complained of symptoms beginning in April 1983 due to
physical training.  His current symptoms consisted of pain
with pushups and typing, plus flare-ups with frequent
exercise.

During his February 2007, post-service VA examination, the
Veteran reported in-service and post-service symptoms as
noted.  With regard to the wrist, the Veteran further
explained that he had a ganglion cyst in the dorsum of the
right wrist that resolved in the later 1990's without surgery
and had not recurred; he now had no pain and took no
medication for the wrist.  The examiner performed a thorough
clinical evaluation.  His assessment was normal examination
of the right wrist.  X-rays showed "normal" right wrist.

The post-service treatment records also include a February
2008 non-VA rheumatology note showing a diagnosis of
"likely" carpal tunnel syndrome of the bilateral wrists.
It was noted that the Veteran was a mechanic and used his
wrists often at work.  He was advised to wear a wrist splint
at home.

The Board finds that remand for a VA examination is necessary
in regard to the Veteran's claim of service connection for
the right wrist.  In particular, the record shows that the
Veteran received right wrist treatment during service and has
had continued problems with that joint.  Also, as discussed
earlier in this decision, service connection for degenerative
joint disease of the cervical spine has been found to be
warranted.  Thus, consideration should also be given to
whether the Veteran has a right wrist disability resulted
from, or having been aggravated by, his now service-connected
cervical spine disorder.  In this regard, the Board notes
that service connection may be granted for a disability that
is proximately due to or the result of a service-connected
disability where the evidence shows (1) evidence of a current
disability, (2) evidence of a service-connected disability,
and (3) medical nexus evidence establishing a connection
between the current disability and the service-connected
disability.  See 38 C.F.R. � 3.310(a); Wallin v. West, 11
Vet. App. 509, 512 (1998).

The Board acknowledges that the Veteran has not claimed
service connection on a secondary basis.  However, VA has a
duty to consider a claim under all theories of entitlement.
See Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004).
Accordingly, remand of this issue for a further VA
examination is necessary.  See 38 U.S.C.A. � 5103A(d); 38
C.F.R. � 3.159(c)(4)(i).

The actions identified herein are consistent with the duties
imposed by the Veterans Claims Assistance Act of 2000 (VCAA).
See 38 U.S.C.A. �� 5100, 5102, 5103, 5103A, and 5107 (West
2002 & Supp. 2008); 38 C.F.R. �� 3.102, 3.156(a), 3.159,
3.326(a) (2008).  However, identification of the specific
actions requested on remand does not relieve the RO of the
responsibility to ensure full compliance with VCAA.  Hence,
in addition to the actions requested above, the RO should
undertake any other development and provide any further
notification deemed warranted by VCAA prior to readjudicating
the remanded claim.

Accordingly, the claims of service connection for a left and
right elbow disorder, a left and right ankle disorder, and a
right wrist disorder, are REMANDED for the following action:

1.  Send the Veteran a letter advising him
of the information and evidence necessary
to substantiate the remanded claims, as
required by Dingess/Hartmann v. Nicholson,
19 Vet. App. 473 (2006).  [The issues
remaining on appeal include entitlement to
service connection for left and right
elbow disabilities, left and right ankles
disabilities, and a right wrist disability
(to include as secondary to a
service-connected disability).]  The
letter should also request that the
Veteran provide the names, addresses, and
approximate dates of treatment for all
health care providers who treated him for
his claimed disabilities.

2.  After the Veteran has signed any
necessary releases, make as many attempts
as necessary to obtain all pertinent
records identified by the Veteran and not
already associated with the claims file.

All records obtained must be associated
with the claims file.  Further, all
attempts to procure any identified records
must be documented in the claims file and,
if any records cannot be obtained, a
notation to that effect should be inserted
in the file.  The Veteran is to be
notified of any unsuccessful efforts in
order to allow him the opportunity to
obtain and submit those records for VA
review.

3.  Then, the RO should schedule the
Veteran for an appropriate VA
examination(s).

The entire claims file, along with a copy
of this remand, must be made available to
the examiner(s) for review.  Accordingly,
the examiner(s) should review the pertinent
evidence, including the Veteran's credible
lay assertions, and also undertake any
indicated studies.

Then, based on the examination results,
including the record review, the
examiner(s) should prepare a printed
(typewritten) report setting forth all
examination findings, along with a
complete rationale for all opinions and
conclusions reached.  It is imperative
that the examiner offer a detailed
analysis for all conclusions and opinions
reached which is supported by specific
references to the Veteran's claims file,
including the in-service and post-service
medical records, and the Veteran's lay
assertions.

In particular, the VA examiner(s) is asked
to address  the following:

(a) Does the Veteran have a current right
and/or left elbow disorder?  If so, the
examiner should state the diagnosis and
specifically indicate whether it is at
least as likely as not (i.e., there is at
least a 50 percent probability) that the
Veteran's current left and/or right elbow
disorder was incurred during his active
service, became manifest within a one-year
period following his discharge from
service, or is otherwise consistent with
his credible assertions of in-service
symptoms and continuous post-service
symptoms.  In making this assessment, the
examiner is asked to address the April
2005 opinion of the Veteran's treating
physician indicating that the Veteran has
conditions that "should be service-
connected."

(b) Does the Veteran have a current right
and/or left ankle disorder?  If so, the
examiner should state the diagnosis and
specifically indicate whether it is at
least as likely as not (i.e., there is at
least a 50 percent probability) that the
Veteran's left and/or right ankle disorder
was incurred during the Veteran's active
service, became manifest within a one-year
period following his discharge from
service, or is otherwise consistent with
his credible assertions of in-service
symptoms and continuous post-service
symptoms.  In making the above
assessments, the examiner is asked to
address the April 2005 opinion of the
Veteran's treating physician indicating
that the Veteran has conditions that
"should be service-connected."

(c) Does the Veteran have a current right
wrist disorder?  If so, the examiner
should state the diagnosis and
specifically indicate whether it is at
least as likely as not (i.e., there is at
least a 50 percent probability) that the
Veteran's right wrist disorder was
incurred during his active service, became
manifest within a one-year period
following his discharge from service, or
is otherwise consistent with his credible
assertions of in-service symptoms and
continuous post-service symptoms.

If the examiner finds that the Veteran
does not have a current right wrist
disorder that as likely as not had its
onset during the Veteran's service, the
examiner should offer an opinion as to
whether it is at least as likely as not
(i.e., there is at least a 50 percent
probability) that the Veteran has a right
wrist disorder that was caused or
permanently worsened beyond the natural
progression of the disorder as a
consequence of (i.e., aggravated by) a
service-connected disability, such as
degenerative disease of the cervical
spine.

In making these assessments regarding the
claimed right wrist disorder, the examiner
is specifically asked to address the April
2005 opinion of the Veteran's treating
physician that the Veteran has conditions
that "should be service-connected."

4.  To help avoid future remand, ensure
that the requested actions have been
accomplished (to the extent possible) in
compliance with this REMAND.  If any
action is not undertaken, or is taken in a
deficient manner, appropriate corrective
action should be undertaken.  See Stegall
v. West, 11 Vet. App. 268 (1998).

5.  After completing the requested
actions, and any additional notification
and/or development warranted by the
record, the RO should readjudicate the
service connection claims remaining on
appeal considering all pertinent evidence
and legal authority and addressing all
relevant theories of entitlement.  If any
benefit sought on appeal remains denied,
furnish to the Veteran and his
representative, if any, an appropriate
Supplemental Statement of the Case (SSOC)
that includes clear reasons and bases for
all determinations, and affords them the
appropriate time period for response.

No action is required of the Veteran until he is notified by
the RO; however, the Veteran is advised that failure to
report for any scheduled examination may result in the denial
of his claims.  38 C.F.R. � 3.655 (2009).  He has the right
to submit additional evidence and argument on the matters
that 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 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).

______________________________________________
THERESA M. CATINO
Acting Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


series: legacy

judge_norm: THOMAS J DANNAHER

disposition: denied

condition: tinnitus

text: Entitlement to a TDIU is denied.

text:
Citation Nr: 1012000
Decision Date: 03/31/10    Archive Date: 04/07/10

DOCKET NO.  08-23 070A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida

THE ISSUES

1.  Entitlement to service connection for bilateral hearing
loss disability.

2.  Entitlement to service connection for tinnitus
disability.

3.  Entitlement to a total disability evaluation based on
individual unemployability (TDIU) due to service-connected
disabilities.

REPRESENTATION

Veteran represented by:	Kimberly J. Syfrett, Attorney-
at-Law

ATTORNEY FOR THE BOARD

M.W. Kreindler, Counsel

INTRODUCTION

The Veteran had active service from September 1969 to
September 1973.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an August 2007 rating decision of a
Department of Veterans Affairs (VA) Regional Office (RO),
which, in pertinent part, denied service connection for
bilateral hearing loss, tinnitus, and entitlement to a TDIU.
A notice of disagreement was filed in October 2007, a
statement of the case was issued in June 2008, and a
substantive appeal was received in August 2008.  The Veteran
requested a Board hearing; however, withdrew such request in
September 2009 and January 2010.

In November 2009, the Veteran, through his representative,
waived AOJ review of additional evidence received.  See 38
C.F.R. �� 19.9, 19.31(b)(1) (2009).

The Board notes that a December 2009 rating decision proposed
to reduce the disability rating assigned to diabetes
mellitus, from 40 percent disabling, to 20 percent disabling.
In December 2009, the Veteran filed a notice of disagreement.
Such notice of disagreement, however, was premature as the
December 2009 rating decision only proposed to reduce the
rating assigned, and had not implemented the rating
reduction.  Thus, it did not constitute a final and
appealable decision.  In a February 2010 rating decision, the
RO reduced the rating assigned to diabetes mellitus to 20
percent, effective May 1, 2010.  To date, a notice of
disagreement has not been received.

FINDINGS OF FACT

1.  Hearing loss was not manifested during service,
sensorineural hearing loss was not exhibited within the first
post service year, and current hearing loss is not otherwise
related to the Veteran's active service.

2.  Tinnitus was not manifested during service and is not
otherwise related to the Veteran's active service.

3.  The Veteran's service-connected PTSD, diabetes mellitus,
hypertension, peripheral neuropathy, bilateral upper
extremity, peripheral neuropathy, bilateral lower extremity,
coronary atherosclerotic heart disease, scar, right buttock,
residual of gunshot wound, and, erectile dysfunction do not
preclude substantially gainful employment.

CONCLUSIONS OF LAW

1.  Bilateral hearing loss was not incurred in or aggravated
by active service, and sensorineural hearing loss may not be
presumed to have been incurred therein.  38 U.S.C.A. �� 1110,
1112, 1113, 1154(b), 5103A, 5107 (West 2002); 38 C.F.R.
�� 3.303, 3.304(d), 3.307, 3.309 (2009).

2.  Tinnitus was not incurred in or aggravated by active
service.  38 U.S.C.A. �� 1110, 1154(b), 5103A, 5107 (West
2002); 38 C.F.R. � 3.303, 3.304(d) (2009).

3.  The criteria for entitlement to a total disability rating
due to service-connected disabilities have not been met.
38 U.S.C.A. �� 1155, 5103(a), 5103A, 5107 (West 2002);
38 C.F.R. �� 3.340, 3.341, 4.16, 4.19, 4.25 (2009).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Under the Veterans Claims Assistance Act of 2000 (VCAA),
codified at 38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5106,
5107 and 5126; see also 38 C.F.R. �� 3.102, 3.156(a), and
3.326(a), VA has a duty to notify the claimant of any
information and evidence needed to substantiate and complete
a claim, and of what part of that evidence is to be provided
by the claimant and what part VA will attempt to obtain for
the claimant.  38 U.S.C.A. � 5103(a); 38 C.F.R.
� 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187
(2002).

The United States Court of Appeals for Veteran Claims'
(Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412
(2004), held, in part, that a VCAA notice, as required by
38 U.S.C.A. � 5103(a), must be provided to a claimant before
the initial unfavorable agency of original jurisdiction (AOJ)
decision on a claim for VA benefits.  This decision has since
been replaced by Pelegrini v. Principi, 18 Vet. App. 112
(2004), in which the Court continued to recognize that
typically a VCAA notice, as required by 38 U.S.C.A.
� 5103(a), must be provided to a claimant before the initial
unfavorable agency of original jurisdiction (AOJ) decision on
a claim for VA benefits.

In this case, VA satisfied its duties to the Veteran in VCAA
letters issued in November 2005 pertaining to his claims of
service connection, and December 2006 pertaining to his
claims of service connection and a TDIU.  The letters
predated the August 2007 rating decision.  See id.
Thereafter, in December 2007 the Veteran was issued another
VCAA letter pertaining to the claims in appellate status.
Collectively, the VCAA letters notified the Veteran of what
information and evidence is needed to substantiate his
claims, as well as what information and evidence must be
submitted by the claimant, what information and evidence will
be obtained by VA, and the evidence necessary to support a
disability rating and effective date pertaining to his
service connection claims, and the evidence necessary to
support an effective date pertaining to his claim for a TDIU.
Id.; but see VA O.G.C. Prec. Op. No. 1-2004 (Feb. 24, 2004).
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The
November 2005, December 2006, and December 2007 letters have
clearly advised the Veteran of the evidence necessary to
substantiate his claims.

The Court in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008),
purported to clarify VA's notice obligations in increased
rating claims.  The Court held that a notice letter must
inform the Veteran that, to substantiate a claim, he must
provide, or ask VA to obtain, medical or lay evidence
demonstrating a worsening or increase in severity of the
disability and the effect that worsening has on the
claimant's employment and daily life.  The Court also held
that where the claimant is rated under a diagnostic code that
contains criteria necessary for entitlement to a higher
disability rating that would not be satisfied by the claimant
demonstrating a noticeable worsening or increase in severity
of the disability and the effect that worsening has on the
claimant's employment and daily life, the notice letter must
provide at least general notice of that requirement.

The Board points out that the U.S. Court of Appeals for the
Federal Circuit recently reversed the Court's holding in
Vazquez, to the extent the Court imposed a requirement that
VA notify a Veteran of alternative diagnostic codes or
potential "daily life" evidence.  See Vazquez-Flores v.
Shinseki, No. 08-7150 (Fed. Cir. Sept. 4, 2009).  Reviewing
the November 2005, December 2006, and December 2007 notices
together, in light of the Federal Circuit's decision, the
Board finds that the Veteran has received 38 U.S.C.A.
� 5103(a) compliant notice as to his claim for a TDIU.

The Veteran has received all essential notice, has had a
meaningful opportunity to participate in the development of
his claims, and is not prejudiced by any technical notice
deficiency along the way.  See Conway v. Principi, 353 F.3d
1369 (Fed. Cir. 2004).  In any event, the Veteran has not
demonstrated any prejudice with regard to the content of any
notice.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009)
(Reversing prior case law imposing a presumption of prejudice
on any notice deficiency, and clarifying that the burden of
showing that an error is harmful, or prejudicial, normally
falls upon the party attacking the agency's determination.)
See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed.
Cir. 2006).

The Board also finds that VA has complied with all assistance
provisions of VCAA.  The evidence of record contains the
Veteran's service treatment records, post-service VA medical
records, post-service private medical records, and Social
Security Administration (SSA) records (electronically
produced).  There is no indication of relevant, outstanding
records which would support the Veteran's claims.
38 U.S.C.A. � 5103A(c); 38 C.F.R. � 3.159(c)(1)-(3).
Additionally, the evidence of record contains a VA
examination performed in March 2007 pertaining to his service
connection claims, and VA examinations performed in May 2009
and November 2009 pertaining to his service-connected
disabilities.  The examination reports obtained are thorough
and contain sufficient information to decide the issues on
appeal.  See Massey v. Brown, 7 Vet. App. 204 (1994).

For all the foregoing reasons, the Board concludes that VA's
duties to the Veteran have been fulfilled with respect to the
issues on appeal.

Service connection

This appeal involves claims of service connection for
bilateral hearing loss and for tinnitus.  Applicable law
provides that service connection will be granted if it is
shown that the veteran suffers from disability resulting from
an injury suffered or disease contracted in line of duty, or
for aggravation of a preexisting injury suffered or disease
contracted in line of duty, in the active military, naval, or
air service.  38 U.S.C.A. � 1110; 38 C.F.R. � 3.303.  That an
injury occurred in service alone is not enough; there must be
chronic disability resulting from that injury.  If there is
no showing of a resulting chronic condition during service,
then a showing of continuity of symptomatology after service
is required to support a finding of chronicity.  38 C.F.R. �
3.303(b).  Service connection may also be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service.  38 C.F.R. � 3.303(d).

Certain chronic disabilities, such as organic diseases of the
nervous system, are presumed to have been incurred in service
if manifest to a compensable degree within one year of
discharge from service.  38 U.S.C.A. �� 1101, 1112; 38 C.F.R.
�� 3.307, 3.309.  In an October 4, 1995, opinion, VA's Under
Secretary for Health determined that it was appropriate to
consider high frequency sensorineural hearing loss an organic
disease of the nervous system and therefore a presumptive
disability.

Service connection for impaired hearing is subject to 38
C.F.R. � 3.385, which provides that impaired hearing will be
considered to be a disability when the auditory threshold in
any of the frequencies of 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,
or 4000 Hertz are 26 decibels or greater; or when speech
recognition scores using the Maryland CNC Test are less than
94 percent.  See also Hensley v. Brown, 5 Vet. App. 155
(1993).

The lack of any evidence that the Veteran exhibited hearing
loss during service is not fatal to his claim.  The laws and
regulations do not require in-service complaints of or
treatment for hearing loss in order to establish service
connection.  See Ledford v. Derwinski, 3 Vet. App. 87, 89
(1992).  Instead, as noted by the Court:

[W]here the regulatory threshold
requirements for hearing disability 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....For example, if
the record shows (a) acoustic trauma due
to significant noise exposure in service
and audiometric test results reflecting
an upward shift in tested thresholds 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
meeting the requirements of 38 C.F.R. �
3.385, rating authorities must consider
whether there is a medically sound basis
to attribute the post-service findings to
the injury in service, or whether they
are more properly attributable to
intercurrent causes.

Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a
brief of the VA Secretary).

The record shows that the Veteran participated in combat in
Vietnam, and is in receipt of the Combat Infantryman Badge
(CIB).  Pursuant to 38 U.S.C.A. � 1154(b), if the record
demonstrates that the veteran engaged in combat with enemy
forces, then by statute VA shall accept as sufficient proof
of service connection of any disease or injury alleged to
have been incurred in or aggravated by such service
satisfactory lay or other evidence of service incurrence or
aggravation of such injury or disease, if consistent with the
circumstances, conditions, or hardships of such service,
notwithstanding the fact that there is no official record of
such incurrence or aggravation in such service, and to that
end, shall resolve every reasonable doubt in favor of the
veteran.  Service connection of such injury or disease may be
rebutted by clear and convincing evidence to the contrary.
See also 38 C.F.R. � 3.304(d).  In light of such combat
service, it is conceded that he had in-service noise
exposure.

An August 1967 Report of Medical Examination performed for
induction purposes reflects pure tone thresholds, in
decibels, as follows:

HERTZ

500
1000
2000
3000
4000
RIGHT
0
0
0
0
0
LEFT
0
0
0
0
5

Service treatment records are negative for any complaints or
findings of hearing loss or tinnitus.  In August 1970, he
sought treatment for mild external otitis.  A physical
examination was negative and topical medicine was applied.

A February 1971 Report of Medical Examination reflects pure
tone thresholds, in decibels, as follows:

HERTZ

500
1000
2000
3000
4000
RIGHT
15
15
15

15
LEFT
15
15
15

15

A February 1972 service treatment record reflects findings of
a mildly reddened ear canal.  He was given a prescription.

An examination performed for separation purposes in June 1973
reflects puretone thresholds, in decibels, as follows:

HERTZ

500
1000
2000
3000
4000
RIGHT
0
0
0

0
LEFT
0
0
0

0

In October 2005, the Veteran sought VA outpatient treatment
complaining of bilateral hearing loss.  He reported a date of
onset of 8 years prior.  Upon audiological testing, the
examiner diagnosed mild to moderate sensorineural hearing
loss in both ears.

In March 2007, the Veteran underwent a VA examination.  The
examiner acknowledged the August 1967, February 1971, and
June 1973 in-service audiogram testing.  The Veteran reported
bilateral hearing loss and tinnitus, worse in the left ear.
The Veteran reported an onset about 10 years ago, stable
since.  He has the greatest difficulty hearing women's
voices.  The examiner acknowledged that he had served in
Vietnam in the infantry for two years.  The Veteran reported
military noise exposure of helicopters for 1 year, rifles,
grenades, artillery, and machine guns, all without hearing
protection.  He reported being right-handed for weapons fire
purposes.  He reported civilian noise exposure as occasional
power tool usage around the house, without hearing
protection.  He has used bilateral hearing aids for about 1
year.  With regard to tinnitus, he reported onset about 10
years ago, worse in the left ear, which occurs daily for 10
to 15 minutus, with no particular pattern of occurrence.  He
reported a moderate, high-pitched sound.  Pure tone
thresholds, in decibels, were as follows:

HERTZ

500
1000
2000
3000
4000
RIGHT
10
0
40
60
55
LEFT
0
5
25
50
55

Speech recognition was 84 percent in the right ear and 80
percent in the left ear.  The examiner diagnosed bilateral
sensorineural hearing loss, normal to moderately severe, and
recurrent intermittent bilateral subjective tinnitus.  The
examiner stated that military acoustic trauma has been
conceded, and his current hearing loss pattern has some
characteristics of noise-induced hearing loss (NIHL) and is
beyond age norms.  However, his hearing was within normal
limits in service, including at separation.  Therefore, the
examiner opined that the Veteran's hearing loss and tinnitus
are less likely as not caused by or as a result of military
noise exposure.  Based on in-service audiograms and his
report of onset 10 years ago, decades after separation, it
appears likely that his hearing loss and tinnitus are a post-
service occurrence more likely due to non-military etiologies
such as the aging process/presbucusis, heredity, and civilian
noise exposure.  It would be speculative to allocate a degree
of his current hearing loss and tinnitus to each of these
etiologies.  The examiner opined that his tinnitus is due the
same etiology as the hearing loss.

Upon review of the entire evidence of record, the Board finds
that the preponderance of the evidence is against the
Veteran's claims of entitlement to service connection for
bilateral hearing loss and tinnitus.  Initially, even in
consideration of in-service audiometric test results
reflecting an upward shift in tested thresholds between
August 1967 and February 1971, his June 1973 separation
examination then reflected zero puretone thresholds.  The
March 2007 VA examiner specifically acknowledged all three
audiograms, and stated that his hearing was within normal
limits during service.

While the lack of in-service findings of complaints or
diagnoses of hearing loss or tinnitus in service does not
preclude a finding of service connection, it is relevant that
the Veteran did not file an initial claim for compensation
until November 2005, thus over 32 years after he separated
from service.  Moreover, sensorineural hearing loss and
tinnitus was not documented until decades after service.  The
first indication in the record of hearing loss was not until
October 2005, when the Veteran sought VA outpatient treatment
complaining of hearing loss, wherein he reported noise
exposure in service.  The Veteran reported a date of onset 8
years prior, thus in approximately 1997.  Thus, the evidence
of record does not reflect any documented complaints of any
hearing loss or tinnitus until over 32 years after separation
from service.  At the March 2007 VA examination, the Veteran
reported that his hearing loss and tinnitus began
approximately 10 years prior, thus again

beginning in 1997; however, this still constituted 24 years
after separation from service.  In this regard, the Board
finds an absence of any evidence of hearing loss and/or
tinnitus for over three decades after discharge from service,
or of persistent symptoms of hearing loss and tinnitus
between service-discharge and 1997.  The lack of any evidence
of continuing hearing loss and/or tinnitus for many years
between the period of active duty and the initial findings or
even complaints of hearing loss and/or tinnitus weighs
against the claim.  A prolonged period without medical
complaint can be considered, along with other factors
concerning the claimant's health and medical treatment during
and after military service, as evidence of whether a
disability was incurred in service or whether an injury, if
any, resulted in any chronic or persistent disability which
still exists currently.  See Maxson v. Gober, 230 F.3d 1330
(Fed. Cir. 2000).

Likewise, the March 2007 VA examiner has opined that the
Veteran's hearing loss and tinnitus are not due to military
acoustic trauma, but likely due to non-military etiologies
such as the aging process/presbucusis, heredity, and civilian
noise exposure.  The opinion of the VA examiner leads to a
finding that the Veteran's hearing loss and tinnitus are less
likely than not related to service.  The Board accepts the VA
examiner's opinion as being the most probative medical
evidence on the subject, as such was based on a review of all
historical records, and contains detailed rationale for the
medical conclusions.  See Boggs v. West, 11 Vet. App. 334
(1998).  Given the depth of the examination report, and the
fact that the opinion was based on a review of the applicable
record, the Board finds such opinion probative and material
to the Veteran's claims.  See Owens v. Brown, 7 Vet. App. 429
(1995).

In sum, the Board is left with no documented complaints or
findings of hearing loss or tinnitus in service, no
documented complaints or findings of hearing loss or tinnitus
until decades after separation from service, and a medical
opinion to the effect that such current hearing loss and
tinnitus are not etiologically related to service.  There is
no contrary medical opinion of record.

The Board has also considered the Veteran's own lay
statements to the effect that his bilateral hearing loss and
tinnitus disabilities are causally related to his active
service.  While the Veteran is competent to state his
recollections of in-service noise exposure and while the
Board concedes that he was exposed to noise during his period
of combat service, he has not been shown to have the medical
expertise necessary to render an opinion with regard to a
diagnosis or etiology.  Espiritu v. Derwinski, 2 Vet. App.
492, 495 (1992).  The negative clinical and documentary
evidence post-service for many years is more probative than
the remote assertions of the Veteran.  As noted above, the
lack of continuity of treatment may bear in a merits
determination on the credibility of the evidence of
continuity of symptoms by lay parties.  Savage v. Gober, 10
Vet. App. 488, 496 (1997).

The questions involved regarding causation are medical in
nature.  As discussed above, the medical opinion of the VA
examiner (based on a review of the claims file and with
knowledge of the Veteran's in-service duties) was negative.
Under these circumstances, the Board is unable to find that
there is a state of equipoise of the positive evidence and
negative evidence.  The preponderance of the evidence now of
record is against the Veteran's claims.

TDIU

Total disability ratings for compensation may be assigned,
where the schedular rating is less than total, when the
disabled person is, in the judgment of the rating agency,
unable to secure or follow a substantially gainful occupation
as a result of service-connected disabilities.  38 C.F.R.
�� 3.340 and 4.16(a).  If, however, there is only one such
disability, it shall be ratable at 60 percent or more, and,
if there are two or more disabilities, there shall be at
least one ratable at 40 percent or more, and sufficient
additional disability to bring the combined rating to 70
percent or more.  38 C.F.R. � 4.16(a).

If a veteran fails to meet the applicable percentage
standards enunciated in 38 C.F.R. � 4.16(a), an extra-
schedular rating is for consideration where the veteran is
unable to secure and follow a substantially gainful
occupation by reason of service-connected disabilities.  38
C.F.R. � 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225
(1993).  Thus, the Board must evaluate whether there are
circumstances, apart from any nonservice-connected conditions
and advancing age, which would justify a total rating based
on unemployability.  See Van Hoose v. Brown, 4 Vet. App. 361,
363 (1993); see also 38 C.F.R. � 3.321(b)(1) (providing for
an extra-schedular disability when there is an exceptional or
unusual disability picture with such related factors as
marked interference with employment or frequent periods of
hospitalization).

Entitlement to a total rating must be based solely on the
impact of the veteran's service-connected disabilities on his
ability to keep and maintain substantially gainful
employment.  See 38 C.F.R. �� 3.340, 3.341, 4.16.  In
reaching such a determination, the central inquiry is
"whether the veteran's service connected disabilities alone
are of sufficient severity to produce unemployability."
Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  For VA
purposes, the term "unemployability" is synonymous with an
inability to secure and follow a substantially gainful
occupation.  VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992).

Consideration may be given to the veteran's level of
education, special training, and previous work experience in
arriving at a conclusion, but not to his age or to the
impairment caused by nonservice-connected disabilities.  See
38 C.F.R. �� 3.341, 4.16, 4.19.  A high rating in itself is
recognition that the impairment makes it difficult to obtain
or keep employment, but the ultimate question is whether the
veteran is capable of performing the physical and mental acts
required by employment, not whether he can find employment.
See Van Hoose, 4 Vet. App. at 363.

Service connection is in effect for posttraumatic stress
disorder (PTSD), rated 50 percent disabling, from April 18,
2002; diabetes mellitus, rated 40 percent disabling from
March 15, 2002, and 20 percent disabling from May 1, 2010;
hypertension, rated 10 percent disabling, from March 15,
2002; peripheral neuropathy (associated with diabetes
mellitus), bilateral upper extremity, separately rated 10
percent disabling, from March 15, 2002; peripheral neuropathy
(associated with diabetes mellitus), bilateral lower
extremity, separately rated 10 percent disabling, from March
15, 2002; coronary atherosclerotic heart disease (associated
with diabetes mellitus), rated 30 percent disabling from
March 3, 2004, and 10 percent disabling from March 28, 2007;
scar, right buttock, residual of gunshot wound, rated
noncompensably disabling from February 21, 1984; and,
erectile dysfunction (associated with diabetes mellitus),
rated noncompensably disabling from March 3, 2004.  His
combined rating is 70 percent from March 14, 2002; 80 percent
from April 18, 2002; 90 percent from March 3, 2004; and, 80
percent from May 1, 2010.  Thus, while his service-connected
disabilities do meet the percentage requirements of 38 C.F.R.
� 4.16(a), the issue remains whether the Veteran is unable to
secure or follow a substantially gainful occupation as a
result of service-connected disabilities.

A November 3, 2005 statement from Eric T. Silberg, M.D.
states that the Veteran has osteoarthritis of the left knee,
and an arthroscopy showed significant arthritic changes at
patellofemoral joints.  He was to undergo total left knee
replacement on November 30, 2005.  The medical statement
reflects that the Veteran has severe limitation of functional
capacity, and is incapable of minimal (sedentary) activity,
and that the Veteran ceased work due to this impairment on
November 29, 2005.  The Board notes that such medical
statement was submitted by the Veteran and is a copy.  A box
is checked pertaining to 'psychiatric impairment' and
'inability to function in almost all areas;' however, the
Board does not find this probative evidence that the
Veteran's PTSD affects his ability to function in all areas,
as Dr. Silberg is not a psychiatrist or psychologist, there
is no indication that Dr. Silberg has treated the Veteran for
a psychiatric disability, and Dr. Silberg's notations only
pertain to the left knee disability.  It is nonsensical that
Dr. Silberg would be reporting on any psychiatric impairment
when the intent of the report was to provide information
regarding his osteoarthritis of the left knee and left knee
replacement surgery.

A March 20, 2006, 'Attending Physician's Statement of
Continued Disability' from Abraham Slaim, D.O., for insurance
purposes, reflects that the Veteran has a primary diagnosis
of deep vein thrombosis (DVT), and has secondary diagnoses of
coagulopathy, arthritis, and chronic obstructive pulmonary
disease (COPD), and has subjective symptoms of leg pains.
Surgery was performed on March 18, 2006, and he was
discharged on March 19, 2006.  His progress is unchanged.

The Veteran was awarded SSA disability benefits, with a
finding that the disability began on November 29, 2005.  The
primary diagnoses were osteoarthrosis and allied disorders,
and the secondary disorder was affective/mood disorder.

In November 2006, the Veteran submitted an informal claim for
a TDIU, stating that he has been unable to work since
November 2005 due to his PTSD.  He submitted a duplicate
statement in February 2007.

In March 2007, the Veteran underwent a VA examination
pertaining to his PTSD.  The claims folder was reviewed.
Upon conducting a mental status examination, the examiner
diagnosed PTSD, and assigned a Global Assessment of Function
score of 60.  The Axis IV diagnosis was medical problems and
lifestyle consequence.  The examiner noted that his usual
occupation is janitor but noted that he was not currently
employed.  The examiner stated that he worked 10 to 20 years,
and was not working due to physical inability to perform.
The examiner stated the Veteran was not contending that his
unemployment was due to mental disorder's effects.  The
examiner stated that his dysthymia is related to his
inability to work (and be active in general) secondary to
medical problems.  The examiner stated that there was no
total occupational and social impairment due to his PTSD
signs and symptoms, and that his PTSD signs and symptoms do
not result in deficiencies in judgment, thinking, family
relations, work, mood, or school.

A March 2007 VA examination pertaining to his diabetes
mellitus reflects that the Veteran is not working, and
stopped working in November 2006 due to physical problems,
specifically recurrent left leg DVT.

In October 2007, the Veteran submitted a VA Form 21-8940.  He
reported that his disabilities of PTSD and diabetes mellitus
affected his full time employment in 2001, and that he last
worked full time in November 2005.  He reported working as a
janitor for Metrex from 2003 to November 2005.

In August 2008, the Veteran submitted a VA Form 21-8940.  He
reported that he worked from February 2003 to November 2005
for Metrex as a laborer, and that his disability affected his
full time employment on November 29, 2005, and he became too
disabled to work on November 29, 2005.  He stated that he had
difficulty dealing with coworkers and bosses due to his PTSD,
and that he had lost several jobs in the past due to this.
He also reported that his diabetes, hypertension, and
peripheral neuropathy affected his employment.

Metrex Research reported that he was employed as a warehouse
worker from February 2003 to December 2, 2006, and his
employment was terminated after 52 weeks of disability.
Metrex reported that he did not work from November 30, 2005
to March 12, 2006, and from March 17, 2006, to December 2,
2006 due to disability.  He last worked on March 16, 2006.

In May 2009, the Veteran underwent a VA examination
pertaining to his diabetes mellitus, peripheral nerves, and
cardiovascular disabilities.  Upon physical examination, the
examiner diagnosed diabetes mellitus, coronary
atherosclerotic heart disease, and bilateral upper and lower
extremity peripheral neuropathy.  The examiner opined that
there was no objective evidence that employment is precluded
secondary to his service-connected conditions.

In May 2009, the Veteran underwent a VA examination
pertaining to his PTSD.  Upon reviewing the claims folder and
conducting a physical examination, the examiner diagnosed
PTSD.  The examiner noted that the Veteran retired in 2004
due to medical problems, as a result of a heart attack and
bilateral knee condition.  The examiner opined that the
Veteran is not unemployable due to PTSD.  The examiner opined
that the Veteran's PTSD does have a significant impact upon
his social functioning as he is suspicious of people.  He has
no close friends and only two social friends (he had close
friends prior to service).  He has a stable marriage.  The
examiner stated that there was no total occupational and
social impairment due to PTSD signs and symptoms.  The
examiner stated that PTSD signs and symptoms do not result in
deficiencies in areas of judgment, thinking, family
relations, work, mood, or school.

In June 2009, Gerald Skipper, M.D., completed a physical of
the Veteran and completed a 'Medical Source Statement of
Ability to Do Work-Related Activities.'  Dr. Skipper stated
that lifting/carrying were affected by impairment and he
could occasionally lift and/or carry less than 10 pounds;
sitting is affected by the impairment; and, he must
periodically alternate sitting and standing to relieve pain
or discomfort.   Pushing and pulling are affected by the
impairment, specifically limited in lower extremities due to
severe degenerative joint disease of bilateral knees.  With
regard to the limitations, the examiner noted that the
Veteran has coronary artery disease, severe degenerative
joint disease of the bilateral knees.  He experiences angina
with repetitive lifting greater than 10 pounds.  He has been
advised that he needs knee replacement.  He is not a
candidate for this due to his other medical conditions.  He
has postural and manipulative limitations, and the examiner
noted that he has upper and lower extremity neuropathy which
impairs.  He has visual and communicative limitations due to
cataracts and hearing aids in both ears.  He has
environmental limitations, as he does not tolerate
temperature extremes, noise, vibration, dust, excessive
humidity, and some chemicals.  Dr. Skipper stated that the
Veteran has not been able to work from 2004 to present.

In November 2009, the Veteran underwent a VA examination
pertaining to his diabetes mellitus, heart, and peripheral
nerves.  The examiner diagnosed diabetes mellitus, coronary
artery disease, bilateral upper extremity neuropathy, and
bilateral lower extremity neuropathy.  There was no objective
evidence to show a worsening of any of the diagnosed
disabilities since the May 2009 VA examination.

An undated statement from Teressa Bruner, ARNP, states that
the Veteran has multiple medical conditions which impact his
ability to work.  He has coronary artery disease, diabetes
mellitus, PTSD, neuropathy of upper and lower extremities and
hypertension.  These conditions together prohibit him from
employment.  He is experiencing chest pain, anxiety, he has
great difficulty being mobile due to his neuropathy and his
degenerative joint disease of the knee.  He is clinically
depressed and experiences great difficulty sleeping.

Based on a review of the entire evidence of record, the Board
finds that while it is clear that the Veteran has suffered
residual disability as a result of his service-connected
disabilities (as evidenced by his 90 percent combined rating
from March 3, 2004, and current 80 percent combined rating
from May 1, 2010), the probative evidence is against a
finding that he is unemployable solely due to his service-
connected disabilities.

As detailed hereinabove, the Veteran stopped working in
November 2005 to undergo total left knee replacement due to
severe osteoarthritis.  The records reflect that post-
surgery, his condition was complicated by his DVT.  Per the
statements from Dr. Silberg and Dr. Slaim, it is clear that
the Veteran stopped working at Metrex and went on disability
due to undergoing surgery related to his left knee and deep
vein thrombosis.  There is no indication that the Veteran
stopped working in November 2005 due to any service-connected
disability.  Moreover, while acknowledging that the Veteran
has not worked since November 2005, the record does not
support a finding that his service-connected disabilities
preclude him from maintaining substantial and gainful
employment.

In his statements in support of his claim, the Veteran has
specifically contended that his PTSD affects his ability to
maintain employment.  The objective medical evidence of
record, however, does not support such a finding.  As
detailed, both the March 2007 and May 2009 VA examiners
reviewed the medical evidence of record and conducted mental
status examinations of the Veteran, and both concluded that
the Veteran's PTSD did not preclude employment, and there is
no total occupational impairment due to his PTSD.  The Board
acknowledges that the Veteran was awarded SSA disability
benefits, and affective/mood disorder was considered a
secondary diagnosis.  However, such finding by SSA does not
indicate that such a finding was due to his PTSD
symptomatology.  Initially, the Board notes that the standard
for awarding SSA disability benefits differs from that of VA
benefits.  Moreover, the March 2007 VA examiner opined that
it was his dysthymia, not PTSD, which was related to his
inability to work secondary to medical problems.  Dysthymia
is defined as a chronic mood disorder manifested as
depression for most of the day, more days than not
accompanied by a slew of symptoms.  STEDMAN'S MEDICAL DICTIONARY
556 (27th Ed. 2000)  Notwithstanding this, again, there are
two objective opinions from VA examiners that his PTSD does
not preclude employment.  Thus, the objective evidence does
not support a finding that his PTSD prevents the Veteran from
obtaining and maintaining employment.

With regard to his diabetes mellitus, and associated
peripheral neuropathy and coronary artery disease (to include
hypertension), the Board also finds that such disabilities do
not preclude the Veteran from maintaining employment.  The
May 2009 VA examiner determined that his diabetes mellitus
was optimally controlled.  With regard to his coronary artery
disease, although the Veteran complained of a frequency of
chest pain, as well as shortness of breath associated with
episodes of chest pain, his medications had not changed.
With regard to his bilateral lower extremity peripheral
neuropathy, the Veteran denied any right lower extremity
symptoms, and the examiner noted that left was worse than
right and although the Veteran reported his symptoms had
worsened the examiner opined that his symptoms had been
stable.  With regard to his bilateral upper extremity
peripheral neuropathy, the examiner determined that such
condition had not worsened over the years.  As detailed, upon
review of the medical records and examination of the Veteran,
the examiner concluded that employment was not precluded
secondary to his service-connected conditions.

The Board acknowledges the June 2009 opinion of Dr. Skipper;
however, does not find it supports a finding that his
service-connected disabilities preclude employment.  In the
report, Dr. Skipper discussed the Veteran's limitations
pertaining to coronary artery disease, severe degenerative
joint disease of bilateral knees, bilateral upper and lower
extremity peripheral neuropathy, cataracts, hearing aids, and
environmental limitations.  Due to such limitations, Dr.
Skipper concluded that the Veteran has not been able to work
since 2004.  However, such opinion discusses limitations
pertaining to nonservice-connected conditions and service-
connected conditions.  With regard to his coronary artery
disease, Dr. Skipper only stated that he experiences angina
with repetitive lifting greater than 10 pounds, but his
nonservice-connected degenerative joint disease of the knees
also affected his lifting/carrying, sitting, and
pushing/pulling.  With regard to his peripheral neuropathy,
Dr. Skipper described the Veteran's manipulative function
limitations as "occasionally" opposed to "frequently" or
"constantly."  The remaining limitations were all due to
nonservice-connected conditions.  Thus, such opinion does not
support a finding that the Veteran's service-connected
disabilities alone preclude employment.

The Board has also given consideration to Ms. Bruner's
statement that the Veteran's coronary artery disease,
diabetes mellitus, PTSD, neuropathy, and hypertension
prohibit him from employment.  While Ms. Bruner did examine
the Veteran on January 2010, when describing the associated
symptoms, she specifically discussed his immobility due, in
part, to degenerative joint disease of the knee, being
clinically depressed (not PTSD), and having difficulty
sleeping.  Thus, such statement does not support a finding
that he is unemployable due solely to his service-connected
disabilities.  There is also no indication that Ms. Bruner
has specialized experience to diagnose cardiovascular
disabilities, orthopedic disabilities, disabilities affecting
the lungs (COPD), and psychiatric disabilities.  With regard
to the diagnosis of anxiety and depression, there is no
indication that Ms. Bruner conducted a mental status
examination, thus such diagnosis is entitled to limited
probative weight.

After reviewing the evidence of record, the Board finds that
the preponderance of the evidence is against a finding that
the Veteran's service-connected disabilities alone are of
such severity as to preclude substantially gainful
employment.  In this case, the VA examiners specifically
considered the symptomatology associated with his service-
connected disabilities, and all concluded that his
disabilities did not preclude employment.  The Board
acknowledges the contentions of the Veteran and his spouse
that his service-connected disabilities preclude employment,
and the Board does not doubt their sincerity; however, the
Board believes the medical evidence from the VA examiners to
be more objective and more probative on the question of
whether the service-connected disabilities alone preclude
employment.  To the extent this may entail a medical
determination, the Veteran is not shown to be medically
competent to offer such opinion.  To the extent that the
question is not medical, the lay observations of the Veteran
have been considered, but the overall evidence is simply
against a finding that the service-connected disabilities
alone preclude employment consistent with his education and
work experience.

Following a full and thorough review of the evidence of
record, the Board concludes that the preponderance of the
evidence is against a finding that the Veteran's service-
connected disabilities alone render him unemployable.  The
evidence in not in a state of equipoise on that question.  As
such, the Veteran's claim for a TDIU is denied.

ORDER

Entitlement to service connection for bilateral hearing loss
disability is denied.

Entitlement to service connection for tinnitus disability is
denied.

Entitlement to a TDIU is denied.

____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: J PARKER

text:
Citation Nr: 1013000
Decision Date: 04/06/10    Archive Date: 04/14/10

DOCKET NO.  09-36 536	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Philadelphia, Pennsylvania

THE ISSUES

1.  Entitlement to service connection for bilateral hearing
loss.

2.  Entitlement to service connection for tinnitus.

REPRESENTATION

Appellant represented by:	Pennsylvania Department of
Military and Veterans Affairs

ATTORNEY FOR THE BOARD

M. Vavrina, Counsel

INTRODUCTION

The Veteran served on active duty from February 1944 to
December 1945.

These matters come to the Board of Veterans' Appeals (Board)
on appeal from a September 2008 rating decision in which the
RO, in pertinent part, denied the above claims for service
connection.  The Veteran perfected appeals to both denials.

Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. � 20.900(c) (2009).
38 U.S.C.A. � 7107(a)(2) (West 2002).

FINDINGS OF FACT

1.  While serving in combat with the Marine Corps, the
Veteran had significant noise exposure during World War II.

2.  Symptoms of hearing loss and tinnitus were chronic in
service and continuous after service.

3.  The Veteran currently has hearing loss in each ear to an
extent recognized as a disability for VA purposes, and the
overall record tends to support a finding that the Veteran's
current bilateral hearing loss is related to service.

4.  The Veteran currently has tinnitus, and the overall
record tends to support a finding that it is related to
service.

CONCLUSIONS OF LAW

1.  Resolving all reasonable doubt in the Veteran's favor,
the criteria for service connection for bilateral hearing
loss are met.  38 U.S.C.A. �� 1110, 5103, 5103A, 5107 (West
2002 & Supp. 2009); 38 C.F.R. �� 3.102, 3.159, 3.303, 3.385
(2009).

2.  Resolving all reasonable doubt in the Veteran's favor,
the criteria for service connection for tinnitus in the
right ear are met.  38 U.S.C.A. �� 1110, 5103, 5103A, 5107
(West 2009 & Supp. 2009); 38 C.F.R. �� 3.102, 3.159, 3.303
(2009).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

VA's duties to notify and assist claimants in substantiating
a claim for VA benefits are found at 38 U.S.C.A. �� 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38
C.F.R. �� 3.102, 3.156(a), 3.159, 3.326(a) (2009).

Given the Board's favorable disposition of the Veteran's
claims for service connection for bilateral hearing loss and
for tinnitus, the Board finds that all notification and
development actions needed to fairly adjudicate the appeal
have been accomplished.

II. Service Connection Analysis

Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. � 1110; 38 C.F.R. � 3.303.  Such a determination
requires a finding of current disability that is related to
an injury or disease in service.  Watson v. Brown, 4 Vet.
App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143
(1992).  Service connection may be granted for any disease
diagnosed after discharge from service when all the
evidence, including that pertinent to service, establishes
that the disease was incurred in service.
38 C.F.R. � 3.303(d).  Medical evidence is required to prove
the existence of a current disability and to fulfill the
nexus requirement.  Lay or medical evidence, as appropriate,
may be used to substantiate service incurrence.

Specific to claims for service connection, impaired hearing
is considered a disability for VA purposes when the auditory
threshold in any of the frequencies of 500, 1,000, 2,000,
3,000, or 4,000 Hertz is 40 decibels or greater; the
thresholds for at least three of these frequencies are 26 or
greater; or when speech recognition scores using the
Maryland CNC Test are less than 94 percent.  38 C.F.R. �
3.385.

When a veteran seeks service connection for a disability,
due consideration shall be given to the supporting evidence
in light of the places, types, and circumstances of service,
as evidenced by service records, the official history of
each organization in which he served, his military records,
and all pertinent medical and lay evidence.  38 C.F.R. �
3.303(a).  See also 38 U.S.C.A. � 1154 (West 2002).

When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the veteran prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied.  Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).

Resolving all doubt in the Veteran's favor and in light of
the law above, the Board finds that service connection for
bilateral hearing loss and tinnitus is warranted.

The Veteran asserts that his current bilateral hearing loss
and tinnitus are the result of noise exposure while serving
with the Marines during World War II, noting that he served
in combat and was wounded at the Battle of Iwo Jima.

Service treatment records reflect no complaints or findings
of hearing loss and/or tinnitus.  Although the Veteran was
not specifically diagnosed with hearing loss of either ear
in active service, the Board notes that the absence of
service treatment records showing in-service evidence of
hearing loss is not fatal to the claim for service
connection.  See Ledford v. Derwinski, 3 Vet. App. 87, 89
(1992).  Competent evidence of a current hearing loss
disability (i.e., one meeting the requirements of 38 C.F.R.
� 3.385, as noted above), and a medically sound basis for
attributing such disability to service, may serve as a basis
for a grant of service connection for hearing loss.  See
Hensley v. Brown, 5 Vet. App. 155, 159 (1993).

First addressing the question of current disability, the
Board notes that, during a July 2008 VA audiological
examination, the Veteran reported that he could not hear
from his right ear and felt that his left ear was okay.  He
also stated that sometimes he hears roaring in his ears.  As
a result of this hearing loss, he misses conversations at
times and needs repetition.  The onset of hearing loss, the
Veteran believed began in 1945 and it had gotten worse over
the years.  He reported no major illnesses or injuries to
have affected his hearing.  Constant tinnitus was reported
to be in his right ear with the onset being in 1945.
Occasionally, he has vertigo.  The examiner recorded that,
while serving in the military, the Veteran was exposed to
excessive noise when he was in the infantry and around heavy
equipment and big guns for a year.  No hearing protection
was worn.  Outside the military, the Veteran denied exposure
to any kind of excessive noise.

On audiological testing in July 2008, pure tone thresholds,
in decibels, were as follows:

HERTZ

500
1000
2000
3000
4000
RIGHT
25
35
45
45
60
LEFT
25
40
50
55
55

The Veteran's speech recognition score using the Maryland
CNC Word List was 76 percent in both ears.  The diagnoses
were normal hearing up to 500 Hertz and gently sloping from
mild to moderately severe sensorineural hearing loss at the
mid and high frequencies, bilaterally, and constant tinnitus
in the right ear.

After reviewing the Veteran's claims file, the July 2008 VA
examiner noted the lack of audiological information in the
treatment (medical) records.  Because of the lack of service
audiological measures, the VA audiologist purported to opine
that the Veteran's hearing loss is less likely as not caused
as a result of noise exposure while in the military, adding
that there was no audiological information found from the
time of service discharge, and that his type of hearing loss
is not a typical noise-induced hearing loss (for which she
gave no rationale).  Similarly, the VA audiologist could not
resolve the issue of whether the Veteran's tinnitus was
caused from noise exposure while in the service without
resort to mere speculation, adding that there was no
information available in the medical records to help
determine the true etiology of his tinnitus.

The July 2008 VA audiological evaluation results clearly
establish hearing loss disability in each ear as defined in
38 C.F.R. � 3.385 and the presence of tinnitus in the right
ear.  The question remains, however, as to whether there
exists a nexus between such bilateral hearing loss and
tinnitus in the right ear and service.

In this appeal, the Veteran has alleged that he had in-
service noise exposure, the "injury" to which his
disabilities relate.  While his service treatment records do
not document the occurrence of, or treatment for, any
specific incidence of acoustic trauma, the Board notes that
the Veteran's service personnel records confirm that he
participated in action against the enemy on Iwo Jima,
Volcano Island from February 22, 1945 to April 11, 1945,
where he incurred a shrapnel wound for which he is service
connected.

In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007),
the U. S. Court of Appeals for the Federal Circuit (Federal
Circuit) determined that 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
(noting that sometimes the layperson will be competent to
identify the condition where the condition is simple, for
example a broken leg, and sometimes not, for example, a form
of cancer), (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.  The relevance of lay evidence is not limited
to the third situation, but extends to the first two as
well.  See also Buchanan v. Nicholson, 451 F.3d 1331, 1337
(Fed. Cir. 2006) ("the Board cannot determine that lay
evidence lacks credibility merely because it is
unaccompanied by contemporaneous medical evidence").
Whether lay evidence is competent and sufficient in a
particular case is a fact issue.

In Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), the
Federal Circuit stated that it had previously and explicitly
rejected the view that competent medical evidence is
required when the determinative issue in a claim for
benefits involves either medical etiology or a medical
diagnosis.  Instead, under 38 U.S.C.A. � 1154(a), lay
evidence can be competent and sufficient to establish a
diagnosis of a condition when: a layperson is competent to
identify the medical condition; the layperson is reporting a
contemporaneous medical diagnosis; or lay testimony
describing symptoms at the time supports a later diagnosis
by a medical professional.  Davidson reaffirms the holdings
in Jandreau and Buchanan that VA must consider the
competency of the lay evidence and cannot outright reject
such evidence on the basis that such evidence can never
establish a medical diagnosis or nexus.  This does not mean,
however, that lay evidence is necessarily always sufficient
to identify a medical diagnosis, but rather only that it is
sufficient in those cases where the lay person is competent
and does not otherwise require specialized medical training
and expertise to do so, i.e., the Board must determine
whether the claimed disability is a type of disability for
which a lay person is competent to provide etiology or nexus
evidence.

In Charles v. Principi, 16 Vet. App. 370 (2002), the U. S.
Court of Appeals for Veterans Claims (Court) determined that
tinnitus is the type of disorder associated with symptoms
capable of lay observation.  Considering the circumstances
of the Veteran's service, he was likely exposed to
significant noise exposure in service from the firing of
weapons at the Battle of Iwo Jima.  In addition, the Veteran
is competent to assert the occurrence of in-service injury.
See, e.g., Grottveit v. Brown, 5 Vet. App. 91, 93 (1993);
see also 38 U.S.C.A. � 1154.  Therefore, the Board finds
that Veteran's statements are competent and credible with
respect to having been exposed to noise in the military and
having ringing in his right ear and hearing problems in
service which continued after service.  Thus, there is
objective evidence to support a specific incident of
acoustic trauma in service, and the Board accepts the
Veteran's assertions of in-service noise exposure as
credible.

The Board also finds that the record presents an objective
basis for attributing the Veteran's current hearing loss and
tinnitus to service.  For service connection, in-service
noise exposure need not be the only source of acoustic
trauma; it must only be a contributing source.

While there is no competent opinion of record explicitly
relating the Veteran's current bilateral hearing loss and
tinnitus to service, the Board finds that the opinion
provided by the VA examiner in July 2008 does not preclude
service connection for either disability.  The VA examiner,
an audiologist, indicated that a determination regarding
whether tinnitus was incurred in service would be
speculative.  The Board acknowledges that she also opined
that the Veteran's hearing loss is less likely as not caused
as a result of noise exposure while in the military, noting
that there was no audiological information found from the
time of discharge.

Such purported opinion by the July 2008 examiner contains
the legal error of reliance solely on the absence of in-
service treatment records as the basis for the opinion.
Under the holding in Buchanan, VA cannot determine that lay
evidence lacks credibility merely because of the lack of
contemporaneous medical records, especially in this case
where at the time of discharge only the subjective and
unreliable tests of watch, coin click, and whispered voice
hearing tests were performed, and the Veteran indicated, on
his VA Form 21-526, that he just deals "with not being able
to hear-[he has] no money for doctors or hearing aids!!"
Hearing loss and tinnitus are both the type of disorders
associated with symptoms capable of lay observation that
support a later diagnosis by a medical professional under
the holdings in Charles and Jandreau, cited to above.

The July 2008 VA audiologist's opinion that relied only on
the absence of in-service audiological results, implicitly
fails to recognize the significant acoustic trauma in
service.  Where audiological measures of hearing loss in
service do not demonstrate any measurable loss of hearing in
service, the United States Court of Appeals for Veterans
Claims (Court), in interpreting 38 C.F.R. � 3.385, has held
that "the regulation does not in and of itself rule out an
award of service connection due to the absence of results of
an in-service audiometric examination capable of being
compared with the regulatory pure tone and speech
recognition criteria  . . . Therefore, the provisions of
38 C.F.R. � 3.385 do not serve as a bar to service
connection."  Ledford v. Derwinski, 3 Vet. App. 87, 89
(1992).

As the July 2008 VA audiology opinion relied only on the
absence of medical evidence, rather than the presence of lay
evidence about in-service noise exposure, in-service chronic
hearing loss and tinnitus, and continuous post-service
hearing loss and tinnitus, the factual assumptions
underlying the July 2008 VA audiology opinion do no include
recognition of the significant acoustic trauma the Veteran
experienced, chronic symptoms in service, or continuous
post-service symptoms.  Without consideration of these
facts, the opinion is based on a factually inaccurate
history.  While an examiner can render a current diagnosis
based upon his examination of the veteran, the Court has
held that without a thorough review of the record, an
opinion regarding the etiology of the underlying condition
can be no better than the facts alleged by the veteran.
Swan v. Brown, 5 Vet. App. 229, 233 (1993).  In effect, it
is mere speculation.  See Black v. Brown, 5 Vet. App. 177,
180 (1993).  Moreover, an opinion based upon an inaccurate
factual premise has no probative value.  Reonal v. Brown, 5
Vet.App. 458, 461 (1993).

Considering the totality of the evidence, including the
Veteran's credible assertions of in-service noise exposure
(acoustic trauma), chronic hearing loss and tinnitus during
service, and continuous hearing loss and tinnitus since
service, and the nature of the disabilities, the Board finds
that the Veteran's hearing loss and tinnitus began in
service and were continuous after service.  The lay and
medial evidence shows current disability of hearing loss and
tinnitus.  Affording the Veteran the benefit of the doubt on
the question of medical nexus, the Board finds that the
criteria for service connection for bilateral hearing loss
and tinnitus are met.  38 U.S.C.A. � 5107; 38 C.F.R.
� 3.102.

ORDER

Service connection for bilateral hearing loss is granted.

Service connection for tinnitus in the right ear is granted.

____________________________________________
J. Parker
Acting Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs