Citation Nr: 1641922 Decision Date: 10/31/16 Archive Date: 11/08/16 DOCKET NO. 12-15 790 ) 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. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. Muetzel, Associate Counsel INTRODUCTION The Veteran had active service from February 1987 to August 1993 and June 1996 to April 2009. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board notes that the April 2012 Statement of the Case (SOC) identifies the September 2010 rating decision, in which the RO confirmed and continued its August 2009 denial of service connection for bilateral hearing loss and tinnitus, as the rating action on appeal. The Veteran submitted additional evidence and a request for reconsideration seven months after the August 2009 rating decision. See March 2010 statement. The Board observes that the Veteran was sent a corrected notice letter in April 2010, informing him that the prior notice letter contained erroneous information and that in fact his appeal period for the August 2009 decision had not expired. The Board will construe the March 2010 statements as a notice of disagreement to the August 2009 rating decision on the hearing loss and tinnitus issues. The SOC was issued in April 2012 and the VA Form 9 Substantive Appeal was received in June 2012. The Veteran requested a hearing before the Board. The requested hearing was conducted in November 2014 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. The claims were remanded by the Board in January 2015. A Supplemental SOC was issued in March 2015 and the matters have been returned to the Board for adjudication. FINDINGS OF FACT 1. The Veteran does not have a current bilateral hearing loss disability for VA purposes. 2. Resolving all doubt in the Veteran's favor, the evidence of record establishes that the Veteran has tinnitus which is a chronic condition that continued after service and presently exists. CONCLUSIONS OF LAW 1. Service connection for bilateral hearing loss is not established. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2015). 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014)) redefined VA's duty to notify and assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2015). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Prinicipi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. VA's duty to notify was satisfied by letters in June 2009, March 2010, and April 2010. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Additionally, the RO substantially complied with prior remand instructions. The instructions pertinent to deciding the claims included obtaining and associating with the record the Veteran's outstanding private and VA treatment records. Additionally, the remand instructions from the January 2015 remand included providing the Veteran with VA examinations concerning his claims of entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran was afforded an examination in March 2015. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim. The RO has obtained private and VA treatment records and provided the Veteran with VA examinations. The reports of the VA examination included a review of the Veteran's medical history, including his service treatment records, and an interview and examination of the Veteran. The exams also provide sufficient clinical and diagnostic findings for purposes of determining the nature and etiology of the Veteran's bilateral hearing loss and tinnitus. Therefore, the Board concludes that the VA examinations are adequate. 38 C.F.R. § 4.2 (2015); see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide an examination or obtain a VA opinion, it must ensure that examination or opinion is adequate). In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 539, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Service Connection As an initial matter, the Board notes it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the analysis will focus specifically on what the evidence shows, or fails to show, as to the issues on appeal. 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) (2016). Establishing entitlement to service connection for a disability on a direct basis generally requires 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for chronic disabilities, such as organic diseases of the nervous system, if such are shown to have been manifested to a compensable degree within one year after the veteran was separated from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Sensorineural hearing loss and tinnitus are considered organic diseases of the nervous system for purposes of 38 C.F.R. § 3.309 (a). See Fountain v. McDonald, 27 Vet. App. 258, 272-73 (2015) (finding tinnitus to be a chronic disease subject to applicable presumptions of 38 C.F.R. § 3.303 (b) as to claims of chronicity). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). 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. Id. However, if chronicity in service is not established or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). A claimant "can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if [the] chronic disease is one listed in § 3.309(a)." Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may nonetheless 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). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A. Hearing Loss The Veteran contends that his bilateral hearing loss is related to military noise exposure. The Veteran filed his claim of entitlement to service connection for hearing loss in December 2008, prior to his separation from service. As an initial matter, the record establishes that the Veteran was exposed to loud noises in service. The Veteran's military occupational specialties were motor vehicle operator, logistics vehicle systems operator, and recruiter. The Veteran competently and credibly testified to military noise exposure as a result of his duties both as a vehicle operator and as a recruiter because he worked with a fighter squadron or in support of a fighter squadron when he was recruiting. Therefore, the Veteran's exposure to noise in service is not in dispute. The next threshold matter that must be addressed is whether the Veteran has a diagnosis of hearing loss. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (holding that service connection cannot be granted "[i]n the absence of proof of a present disability"); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (explaining that the current disability requirement is satisfied when the claimant has a disability at the time the claim is filed or during the pendency of the appeal even though the disability may resolve prior to adjudication). Hearing loss disability is defined by regulation. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least 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. 38 C.F.R. § 3.385. There was no enlistment examination conducted, but the Veteran was provided an examination within one month of his enlistment, and the pure tone thresholds were as follows in February 1987: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 5 0 LEFT 10 5 5 0 5 The pure tone thresholds were as follows in March 1988: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 5 0 0 LEFT 20 15 5 0 10 The pure tone thresholds were as follows in May 1989: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 5 0 LEFT 15 10 5 15 30 The pure tone thresholds were as follows in February 1991: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 0 5 0 LEFT 10 5 0 5 5 The pure tone thresholds were as follows in July 1992: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 5 0 LEFT 10 5 5 0 5 The pure tone thresholds were as follows in November 1992: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 5 5 5 LEFT 10 10 0 5 5 The pure tone thresholds were as follows in May 1996: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 10 10 10 LEFT 15 15 10 5 0 The pure tone thresholds were as follows in October 1997: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 0 10 LEFT 10 10 5 5 10 The pure tone thresholds were as follows in March 1999: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 5 5 10 LEFT 15 10 5 5 10 The pure tone thresholds were as follows in October 2001: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 15 15 LEFT 15 10 5 10 10 The pure tone thresholds during another examination in October 2001 were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 5 10 10 LEFT 20 15 5 10 10 The pure tone thresholds were as follows in July 2007: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 5 15 15 LEFT 20 15 10 5 10 After separation, the Veteran provided a private audiogram from May 2010. The pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 25 20 25 15 LEFT 25 15 15 20 25 In February 2013, the VA treatment records show that the Veteran was seen for complaints of increased tinnitus and hearing loss. The clinician noted that the results from a January 2013 examination indicated that the Veteran had a 10-20 decibel increase in thresholds at several frequencies. The Veteran had a carpet cleaning and pressure washing business and was in situations consisting of loud noise and retesting was recommended after at least 14 hours of noise-free or use of ear protection. The clinician diagnosed the Veteran with mild hearing loss. Another VA examination was provided in March 2015. The pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 15 15 10 LEFT 20 15 15 10 15 The VA examiner diagnosed the Veteran with sensorineural hearing loss in the frequency range of 6000 Hz or higher frequencies. The Veteran's speech discrimination score on the Maryland CNC word list was 94 percent in the right ear and 96 percent in the left ear. After reviewing the foregoing evidence, the Board cannot conclude that the Veteran has a hearing loss disability that meets the requirements of 38 C.F.R. § 3.385. The Board acknowledges the Veteran's assertions that he has bilateral hearing loss and that his bilateral hearing loss began in-service. The Board notes that the Veteran is competent to report the onset of symptoms. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). In regard to continuity of symptoms, the Board finds that the Veteran's bilateral hearing loss is properly afforded such consideration, as it is an enumerated condition in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the diagnosis of bilateral hearing loss for VA purposes falls outside the realm of common knowledge of a lay person. In this regard, while the Veteran can competently report symptoms of hearing loss any opinion regarding whether he has hearing loss for VA purposes requires medical expertise, such as the ability to administer an audiogram, that the Veteran has not demonstrated. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As such, the Board assigns no probative weight to the Veteran's assertions that he has bilateral hearing loss for VA purposes. The Board notes that the Court has held that Congress specifically limited entitlement to service connected benefits to cases where there is a current disability. The Board notes that "in the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the Veteran does not have a hearing impairment for VA purposes, service connection may not be established. 38 C.F.R. § 3.385 (2015). In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). B. Tinnitus The Veteran contends that his tinnitus is related to military noise exposure. After reviewing the evidence of record, the Board finds that the criteria for entitlement to service connection for tinnitus have been met. The July 2009, September 2009, and March 2015 examinations all noted that the Veteran complained of tinnitus. The Veteran also filed his claim for entitlement to service connection for tinnitus prior to his separation from active duty in December 2008. The Veteran is competent to report the symptoms of ringing in the ears. Charles v. Principi, 16 Vet App 370 (2002). The claims file contains a negative nexus opinion from the August 2010 VA examiner, who opined that it is less likely than not that the Veteran's tinnitus is a result of noise exposure while in service because the Veteran's hearing was clinically normal and there were no significant threshold shifts. The examiner also noted that the Veteran's service treatment records were silent for complaints of tinnitus. Then, the March 2015 VA examiner also opined that the Veteran's tinnitus was less likely than not related to service and military noise exposure. By way of rationale, the examiner explained that, in the absence of an objectively verifiable noise injury, the association between claimed tinnitus and noise exposure cannot be assumed to exist. The examiner noted that tinnitus may occur following a single exposure to high-intensity impulse noise, long-term exposure to repetitive impulses, long-term exposure to continuous noise, or exposure to a combination of impulses and continuous noise. The examiner indicated that one would have to accept the scientifically unsubstantiated theory that tinnitus occurred as a result of some latent, undiagnosed noise injury. The examiner noted that the Institute of Medicine never stated that tinnitus could result from undiagnosed noise injuries. The examiner indicated that "[i]n most cases" tinnitus is accompanied by measurable hearing loss. The Board has reviewed the foregoing medical evidence as well as the statements from the Veteran. The March 2015 VA opinion suggests that the Veteran does not have tinnitus because the in-service audiograms do not show that the Veteran sustained a noise injury. Significantly, however, the examiner added that "[i]n most cases" tinnitus is accompanied by measurable hearing loss which suggests that there are some cases, albeit very limited, in which tinnitus is not accompanied by measurable hearing loss. Given such qualification, and the fact that the Veteran filed his claim seeking service connected benefits for tinnitus while he was in service, the Board resolves reasonable doubt in favor of the Veteran and finds that the Veteran has a valid diagnosis of tinnitus which is a chronic condition that continued after service and presently exists. U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2016). Thus, the elements of service connection are satisfied. See Walker, 701 F.3d 1331. Accordingly, service connection for tinnitus is warranted. ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs