Citation Nr: 1641755 Decision Date: 10/28/16 Archive Date: 11/08/16 DOCKET NO. 12-20 003 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to a disability rating greater than 40 percent for a lumbosacral spine disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from September 1972 to May 1973 and additional unverified service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied, in pertinent part, the Veteran's claims of service connection for bilateral hearing loss and for tinnitus. The RO also granted the Veteran's claim for a disability rating greater than 10 percent for a lumbosacral spine disability, assigning a higher 40 percent rating effective September 18, 2009, for this disability. The Veteran disagreed with this decision in March 2010. He perfected a timely appeal in July 2012. A videoconference Board hearing was held at the RO in July 2016 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. The Board notes that, in statements on the record at his July 2016 hearing, the Veteran requested that his appeal as to an increased rating for a lumbosacral spine disability be withdrawn. See Board hearing transcript dated July 27, 2016, at pp. 2. FINDINGS OF FACT 1. The record evidence shows that the Veteran's current bilateral hearing loss disability and tinnitus are not related to active service. 2. In statements made on the record at his July 2016 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran requested that his appeal as to an increased rating for a lumbosacral spine disability be withdrawn. CONCLUSIONS OF LAW 1. Bilateral hearing loss disability was not incurred in or aggravated by active service nor may sensorineural hearing loss be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2015). 2. Tinnitus was not incurred in or aggravated by active service nor may it be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2015). 3. The criteria for withdrawal of an appeal by the appellant have been met on the issue of entitlement to a disability rating greater than 40 percent for a lumbosacral spine disability. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his or her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. With respect to the Veteran's service connection claims for bilateral hearing loss and for tinnitus, VA's duty to notify was satisfied by a letter dated in May 2011. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). This letter notified the Veteran of the information and evidence needed to substantiate and complete his claims, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. The Veteran also was informed of when and where to send the evidence. After consideration of the contents of this letter, the Board finds that VA has satisfied substantially the requirement that the Veteran be advised to submit any additional information in support of his claims. VA also complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the Board. It appears that all known and available records relevant to the issues on appeal have been obtained and associated with the claims file; the Veteran has not contended otherwise. The Veteran's electronic paperless claims files in VVA and in VBMS have been reviewed. The Veteran's complete Social Security Administration (SSA) records also have been obtained and associated with the claims file. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In March 2016, the Federal Circuit ruled in Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott, 789 F.3d at 1375. Because the Veteran has not raised a potential Bryant problem in this appeal, no further discussion of Bryant is necessary. The Veteran has been provided with a VA examination which addresses the contended causal relationship between the claimed disability and active service. This examination report sets forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations. Thus, the Board finds the examination of record is adequate for rating purposes and additional examination is not necessary regarding the claims adjudicated in this decision. In summary, VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. Service Connection Claims The Veteran contends that he incurred bilateral hearing loss and tinnitus during active service. He specifically contends that in-service noise exposure caused or contributed to his current bilateral hearing loss and tinnitus. Laws and Regulations Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. 1110, 1131 (West 2014); 38 C.F.R. 3.303(a) (2015). Certain chronic diseases, including sensorineural hearing loss (as an organic disease 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. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). The Court has added tinnitus (as an organic disease of the nervous system) to the list of disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a). See Fountain v. McDonald, 27 Vet. App. 258 (2015). Establishing service connection generally requires (1) medical evidence of a presently existing disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence 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 disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)); Hickson v. West, 12 Vet. App. 247, 253 (1999). Clinically, the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For compensation purposes, however, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater or where the auditory thresholds for at least three of these frequencies are 26 dB or greater or when speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Id., at 495-498. In Walker, the Federal Circuit overruled Savage and limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Because bilateral hearing loss and tinnitus are considered "chronic" disabilities under 38 C.F.R. § 3.309(a), the theory of continuity of symptomatology remains valid in adjudicating the Veteran's claims. Factual Background and Analysis The Board finds that the preponderance of the evidence is against granting the Veteran's claims of service connection for bilateral hearing loss and for tinnitus. The Veteran contends that in-service noise exposure caused or contributed to his current bilateral hearing loss and tinnitus. The record evidence does not support his assertions regarding in-service incurrence or an etiological link between his current bilateral hearing loss, tinnitus, and active service. It shows instead that, although he currently experiences bilateral hearing loss and tinnitus, neither of these disabilities is related to active service or any incident of service. For example, the Veteran's available service treatment records show that, at his pre-enlistment physical examination in March 1972, prior to his entry on to active service in September 1972, his hearing was 15/15 (or within normal limits) bilaterally. The Veteran denied all relevant pre-service medical history. It appears that a copy of the Veteran's separation physical examination was not available for review. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). The post-service evidence also does not support granting service connection for bilateral hearing loss or for tinnitus. It shows instead that, although the Veteran currently experiences bilateral hearing loss and tinnitus, neither of these disabilities is related to active service. For example, on private outpatient treatment in June 2010, the Veteran complained of decreased hearing, left ear greater than right ear, and tinnitus. "The symptoms may be related to exposure to loud environments." The Veteran reported an in-service history of noise exposure in the engine rooms of U.S. Navy ships. He also reported a post-service history of noise exposure while working in a U.S. Postal Service processing plant. Physical examination of the ears was unremarkable. Audiometric testing showed moderate sloping to severe sensorineural hearing loss. The assessment included sensorineural hearing loss, not otherwise specified, consistent with presbycusis, and tinnitus, not otherwise specified. The private audiologist stated, "[G]iven already moderate to severe loss...also likely a component of genetic predisposition." This audiologist also stated that there was no "trough" at 4000 Hertz "to indicate noise induced loss but does have a significant history of noise exposure (mostly in the military)." On VA hearing loss and tinnitus Disability Benefits Questionnaire (DBQ) in April 2012, the Veteran's complaints included bilateral hearing loss and recurrent bilateral tinnitus. He stated that his tinnitus occurred 3-4 times per week lasting a few seconds at a time. He also stated that he first experiencing tinnitus in 1996. The Veteran stated further that his tinnitus "interferes with my sleeping." He denied that his hearing loss impacted his daily life. The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records. The Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 25 25 35 LEFT 15 15 15 25 30 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 98 percent in the left ear. The VA examiner opined that it was less likely than not that the Veteran's bilateral hearing loss and tinnitus were related to active service. The rationale for this opinion was that the Veteran himself reported that both of these problems began in 1996 "after he started doing plant work for the [U.S. Postal Service]. He reports lots of excessive noise without consistent [hearing protection device] use." The diagnoses were bilateral sensorineural hearing loss and tinnitus associated with hearing loss. The Veteran contends that he incurred bilateral hearing loss and tinnitus during active service. Despite these assertions, the record evidence shows that the Veteran himself reported that did not incur either of these claimed disabilities until several decades after his service separation in approximately 1996 while he was working for the postal service. More importantly, the record evidence shows that the Veteran's current bilateral hearing loss and tinnitus are not related to active service or any incident of service. A private audiologist noted in June 2010 that the Veteran's audiometric testing results did not support a finding of "noise-induced" hearing loss despite his reported in-service noise exposure. This audiologist also noted that the Veteran's bilateral hearing loss was consistent with presbycusis which is defined as "a progressive bilaterally symmetric perceptive hearing loss occurring with age." See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1503 (30th ed. 2003). The June 2010 private clinician also found that there was "likely a component of genetic predisposition" in the Veteran's bilateral hearing loss. Critically, the April 2012 VA examiner specifically opined that neither bilateral hearing loss nor tinnitus was related to active service. The April 2012 VA examiner's opinion was fully supported. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Veteran also has not identified or submitted any evidence, to include a medical nexus, which demonstrates his entitlement to service connection for bilateral hearing loss or for tinnitus. In summary, the Board finds that service connection for bilateral hearing loss and for tinnitus is not warranted. The Board finally finds that service connection for bilateral sensorineural hearing loss and for tinnitus is not warranted on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309; Fountain, 27 Vet. App. at 258 (adding tinnitus (as an organic disease of the nervous system) to disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a)). The Veteran does not contend, and the evidence does not show, that he was diagnosed as having either of these claimed disabilities during active service or within the first post-service year (i.e., by May 1974) such that service connection for bilateral sensorineural hearing loss or for tinnitus is warranted on a presumptive basis as a chronic disease. Id. Instead, as noted above, the Veteran himself dated the onset of both of these disabilities to 1996 (when he was employed in a postal service processing plant) or several decades after his service separation. Accordingly, the Board finds that service connection for bilateral sensorineural hearing loss and for tinnitus is denied on a presumptive basis. In making this determination, the Board has considered the lay statements submitted in support of this claim, in which the Veteran asserts that his hearing loss and tinnitus are due to his noise exposure in service. In certain circumstances, laypersons are competent to provide opinions regarding diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Board finds that the opinion provided by the VA examiner is more probative than the Veteran's assertions. The examiner has specific audiological training, expertise, and education that the Veteran is not shown to have. As such, the opinion provided by the examiner is given more probative weight than the one provided by the Veteran. Dismissal of Increased Rating Claim The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2014). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2015). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. As noted in the Introduction, after the Veteran perfected a timely appeal on the issue of an increased rating for a lumbosacral spine disability, he requested that his appeal for this claim be withdrawn in statements made on the record at his July 2016 Board hearing. See Board hearing transcript dated July 27, 2016, at pp. 2. Accordingly, because there remain no allegations of errors of fact or law for appellate consideration, the Board does not have jurisdiction to review this claim and it is dismissed. ORDER Entitlement to service connection for bilateral hearing loss disability is denied. Entitlement to service connection for tinnitus is denied. Entitlement to a disability rating greater than 40 percent for a lumbosacral spine disability is dismissed. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs