Citation Nr: 0811732 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 07-19 585 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Ishizawar, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from April 1961 to April 1965. These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Cleveland, Ohio Department of Veterans Affairs (VA) Regional Office (RO). In December 2007, a Travel Board hearing was held before the undersigned. A transcript of this hearing is of record. At the Travel Board hearing, the undersigned granted a request to hold the case in abeyance 60 days for the submission of additional evidence. 38 C.F.R. § 20.709. That period of time has lapsed and no additional evidence was received. Hence, the claim will be considered based on the current record. Additional evidence was submitted in September 2007; a waiver of initial AOJ consideration of this evidence was submitted at the Travel Board hearing. The issue of entitlement to service connection for tinnitus is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if any action on his part is required. FINDINGS OF FACT 1. It is not shown that the veteran has a right ear hearing loss disability by VA standards. 2. A left ear hearing loss disability was not manifested in service; sensorineural hearing loss was not manifested to a compensable degree in the first postservice year; and the preponderance of the evidence is against a finding that the veteran's current left ear hearing loss disability is related to his service or to any event therein. CONCLUSION OF LAW Service connection for bilateral hearing loss disability is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The veteran was advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication of his claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). An August 2006 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, the evidence he was responsible for providing, and advised him to submit any evidence or provide any information he had regarding his claim. In compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), it also informed him of disability rating and effective date criteria. The veteran has had ample opportunity to respond/supplement the record, and is not prejudiced by any technical notice deficiency (including in timing) that may have occurred earlier in the process. The veteran's service medical records (SMRs) are associated with his claims file, and pertinent treatment records have been secured. The RO arranged for a VA examination in April 2007. The veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. B. Factual Background Service personnel records show that the veteran served as an instrument repairman in the United States Air Force. His SMRs are silent for complaints, findings, treatment or diagnosis relating to hearing loss. They reflect that because of his occupational noise exposure his hearing was regularly monitored. During his regular hearing conservation examinations, it was noted that he wore ear protection in the course of his duties. On clinical evaluation, on both April 1961 enlistment and April 1965 separation examinations, the veteran's ears were noted to be normal. Audiometry on April 1961 service entrance examination revealed that puretone thresholds, in decibels, were: Hertz 500 1,000 2,000 3,000 4,000 6,000 Right Ear 15 (25) 35 (40) Left Ear 15 (25) 35 (40) [The figures in parentheses represent conversions of audiometry reported in ASA values to ISO (ANSI) units, and are provided for data comparison purposes.] Audiometry on April 1965 service separation examination revealed that puretone thresholds, in decibels, were: Hertz 500 1,000 2,000 3,000 4,000 6,000 Right Ear 0 (15) 0 (10) -5 (5) -5 (5) -5 (0) -5 (5) Left Ear -5 (10) -5 (5) -5 (5) 0 (10) -5 (0) 10 (20) The veteran had audiometric evaluations performed as part of his employment physical examinations at the PPG Plant in September 1979, October 1981, November 1983, December 1984, October 1985, September 1986, October 1988, November 1990, and December 1991. In December 1984, high frequency hearing loss in the left ear was diagnosed. In October 1985, high frequency hearing loss in both ears was diagnosed. On a hearing evaluation at Circleville Hearing Center in August 2006, a history of military and factory noise exposure was noted. On otoscopic examination, slight cerumen was observed bilaterally. Otoacoustic emissions were absent in the left ear and consistent with loss in the right ear. It was recommended that the veteran follow with an otolaryngologist to explore the asymmetry of hearing sensitivity between the right and left ears; hearing aids were also recommended. On April 2007 VA audiological evaluation, puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 10 20 20 LEFT 10 10 40 55 65 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 92 percent in the left ear. The veteran reported military noise exposure to jet engines and occupational noise exposure to machinery noise working in a paint plant. The diagnosis was normal hearing acuity in the right ear, and moderately-severe sensorineural hearing loss in the left ear. The audiologist reviewed the claims file in conjunction with the examination and noted that the veteran's service entrance examination revealed a mild hearing loss at 4000 Hz; however, she did not consider this a valid result as numerous subsequent audiograms revealed normal hearing at that frequency. She also noted that the veteran's service separation audiogram revealed normal hearing and that he had reported postservice occupational noise exposure in a manufacturing plant. Based on this evidence, the audiologist concluded that the veteran's hearing loss was not caused by, or the result of, military noise exposure. At his December 2007 Travel Board hearing, the veteran testified that his most troublesome loss of hearing is in his left ear, and that he did not seek treatment for bilateral hearing loss during service because he was not aware of the problem until his separation from service when hearing loss was noted. He stated that his hearing loss was also shown on periodic physical examinations at his place of employment, the PPG Plant, though his problems predated his employment there. He also testified that he was not exposed to occupational noise at the PPG Plant as he worked mainly in office or laboratory settings; only when he occasionally walked through the plant would he be exposed to noise trauma. C. Legal Criteria and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service incurrence or aggravation of organic disease of the nervous system (to include sensorineural hearing loss) may be presumed if such is manifested to a compensable degree within a year of a veteran's discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection also may be granted for any disease initially 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). In order to prevail on the issue of service connection, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). Hearing loss disability is defined by regulation. For the purpose 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, 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. 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 veteran 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). Service personnel records show that the veteran served as an instrument repairman in the United States Air Force and was given hearing conservation examinations regularly due to his exposure to jet engine noises. Hence, it is conceded, and is not in dispute, that he was exposed to noise trauma during service. Initially, it is notable that there is no indication that the audiograms performed through PPG Plant and Circleville Hearing Center were conducted in the specific manner required by regulation. Consequently, neither the puretone thresholds nor the speech discrimination testing results of these audiograms are appropriate for use in establishing whether the veteran has a hearing loss disability by VA standards. The only audiometry suitable for determining whether the veteran has a hearing loss disability by VA standards is the official audiometry in April 2007, which shows that the veteran has a left ear hearing loss disability by VA standards, but does not have a right ear hearing loss disability by VA standards in the right. Thus, there is no competent (medical) evidence that he currently has a right ear hearing loss disability. In the absence of proof of a present disability, there is no valid claim of service connection; thus, it is not necessary to proceed with any further analysis regarding a nexus between the claimed disability and the veteran's service. See Hickson, 12 Vet. App. at 253; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Left ear hearing loss disability is diagnosed, and what the veteran must still show to establish service connection for such disability is that it is related to his noise trauma exposure in service or is otherwise related to service. The record does not include any competent evidence that suggests that there indeed is a relationship between the current left ear hearing loss disability and the veteran's service. The veteran's SMRs, including his separation examination report, contain no mention of hearing loss, and show normal hearing. Consequently, service connection for left ear hearing loss on the basis that such disability became manifest in service and persisted, is not warranted. As there is no competent (medical) evidence that sensorineural hearing loss was manifested in the first postservice year, there is no basis for considering (and applying) the 38 U.S.C.A. § 1112 chronic disease presumptions (for sensorineural hearing loss as an organic disease of the nervous system). The competent evidence of record regarding a nexus between the veteran's current hearing loss disability and his service consists, essentially, of the April 2007 VA audiological evaluation report. The examiner reviewed the veteran's claims file and noted the results of all service audiometry, including the April 1965 service separation audiometry, and that all showed normal hearing. [The only exception to this was the April 1961 service entrance audiometry which showed mild hearing loss; but, the examiner concluded that this result was invalid, as it was inconsistent with subsequent audiometry which showed normal hearing.] Based on this evidence and the veteran's reported postservice history of occupational noise exposure, she opined that the veteran's hearing loss was not caused by, or a result of military noise exposure. There is no other competent (medical) evidence of record that refutes this opinion. The veteran's own statements relating his left ear hearing loss disability to noise exposure in service are not competent evidence, as he is a layperson, and lacks the training to opine regarding medical etiology. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). The United States Court of Appeals for Veterans Claims (Court) has held that the Board may consider only independent medical evidence to support its findings. Colvin v. Derwinski, 1 Vet. App. 171 174 (1991). Thus, the Board cannot conclude, based solely upon the veteran's statements, that his hearing loss is related to noise exposure incurred during service; the medical evidence of record does not support such a finding. Since the VA examiner's opinion weights against a finding of a nexus between service and current left ear hearing loss and there is no competent (medical) evidence to the contrary, the preponderance of the evidence is against the veteran's claim, and it must be denied. ORDER Service connection for bilateral hearing loss is denied. REMAND On April 2007 VA audiological evaluation, the veteran complained of tinnitus and reported that it began in 1965. The examiner reviewed the claims file and noted, "No record of complaint of tinnitus was recorded in the SMRs." Therefore, she opined that based upon the evidence of record and the veteran's reported history of postservice occupational noise exposure, his tinnitus was not caused by, or the result of military noise exposure. However, the examiner's opinion is premised, in part, on inaccurate information. Specifically, SMRs show that the veteran had three hearing conservation examinations in May 1961, January 1964, and October 1964. The May 1961 examination is silent for complaints of tinnitus; but in January 1964, he complained of tinnitus in both ears. In October 1964, he denied tinnitus. Governing regulation provides that an examination or opinion is necessary if the evidence of record: (A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (B) establishes that the veteran suffered an event, injury or disease in service; (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service, but (D) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4). The Court has held that the requirement for evidence that a disability "may be associated" with service is a "low threshold" requirement. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The record reflects recent complaints of tinnitus, suggests that the veteran experienced noise exposure in service, and shows that he complained of tinnitus during service. His allegations of continuing symptoms of tinnitus since the noise exposure satisfy the "low threshold" for evidence suggesting a nexus to service (see McLendon, supra). Hence, a VA examination is necessary. Accordingly, the case is REMANDED for the following: 1. The RO should arrange for the veteran to be examined by an otolaryngologist to determine the likely etiology of his tinnitus. The physician should review the veteran's claims file, and provide an opinion as to whether it is at least as likely as not (a 50 percent or better probability) that the veteran has tinnitus that is related to his service, and specifically to noise trauma therein. The examiner should explain the rationale for the opinion given. 2. The RO should then re-adjudicate this claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case and give the veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter 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 for additional development or other appropriate action must be handled in an expeditious manner. ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs