Citation Nr: 0812153	
Decision Date: 04/11/08    Archive Date: 04/23/08

DOCKET NO.  07-18 043	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manchester, 
New Hampshire


THE ISSUES

Entitlement to service connection for hearing loss.

Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	New Hampshire State Veterans 
Council


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

S. Layton, Associate Counsel


INTRODUCTION

The appellant is a veteran who served on active duty from 
December 1965 to December 1968.  The veteran also served in 
the New Hampshire National Guard and Army Reserves with 
active duty deployments from November 1993 to June 1994 and 
July 2005 to November 2005.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a December 2006 rating decision by the 
Manchester, New Hampshire Regional Office (RO) of the 
Department of Veterans Affairs (VA).

In May and August 2007, the veteran presented testimony 
during personal hearings.  Transcripts of the hearings are of 
record.


FINDINGS OF FACT

1.  All relevant evidence necessary for the equitable 
disposition of the issue on appeal was obtained.

2.  The evidence of record does not demonstrate that hearing 
loss developed as a result of an established event, injury, 
or disease during active service.

3.  The evidence of record does not demonstrate tinnitus was 
manifest during active service or developed as a result of an 
established event, injury, or disease during active service.




CONCLUSIONS OF LAW

1.  Hearing loss was not incurred by service, nor may service 
incurrence of a sensorineural hearing loss be presumed.  38 
U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2007); 38 
C.F.R. §§ 3.303 (2007).

2.  Tinnitus was not incurred by service, nor may service 
incurrence of a sensorineural hearing loss be presumed.  38 
U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2007); 38 
C.F.R. §§ 3.303 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The provisions of the Veterans Claims Assistance Act of 2000 
(VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 
3.326(a), and as interpreted by the United States Court of 
Appeals for Veterans Claims (the Court) have been fulfilled 
by information provided to the veteran in letters from the RO 
dated in June 2006.  Those letters notified the veteran of 
VA's responsibilities in obtaining information to assist the 
veteran in completing his claims, identified the veteran's 
duties in obtaining information and evidence to substantiate 
his claims, and requested that the veteran send in any 
evidence in his possession that would support his claims.  
(See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)), 
Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. 
Principi, 18 Vet. App. 112 (2004).  See also Mayfield v. 
Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other 
grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. 
Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson 
(Mayfield II), 20 Vet. App. 537 (2006).

The veteran has been made aware of the information and 
evidence necessary to substantiate his claims and has been 
provided opportunities to submit such evidence.  The RO has 
properly processed the appeal following the issuance of the 
required notice.  Moreover, all pertinent development has 
been undertaken, examinations have been performed, and all 
available evidence has been obtained in this case.  Thus, the 
content of the notice letters complied with the requirements 
of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).  No 
further action is necessary for compliance with the VCAA.  

During the pendency of this appeal, the Court in 
Dingess/Hartman found that the VCAA notice requirements 
applied to all elements of a claim.  Notice as to these 
matters was provided in the June 2006 letter from the RO.  
The notice requirements pertinent to the issue addressed in 
this decision have been met and all identified and authorized 
records relevant to the matter have been requested or 
obtained.

Further attempts to obtain additional evidence would be 
futile.  The Board finds the available medical evidence is 
sufficient for an adequate determination.  There has been 
substantial compliance with all pertinent VA law and 
regulations and to move forward with the claim would not 
cause any prejudice to the appellant.

Law and Regulations

Service connection may be granted for a disability resulting 
from personal injury suffered or disease contracted in line 
of duty or for aggravation of preexisting injury suffered or 
disease contracted in line of duty.  38 U.S.C.A. § 1110, 1131 
(West 2002); 38 C.F.R. § 3.303 (2007).  

VA regulations provide that where a veteran served 90 days or 
more of continuous, active military service during a period 
of war or after January 1, 1947, and certain chronic 
diseases, including arthritis and organic diseases of the 
nervous system (sensorineural hearing loss), become manifest 
to a degree of 10 percent within one year from date of 
termination of service, such disease shall be presumed to 
have been incurred in service even though there is no 
evidence of such disease during the period of service.  This 
presumption is rebuttable by affirmative evidence to the 
contrary.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 
38 C.F.R. §§ 3.307, 3.309 (2007).

The United States Court of Appeals for the Federal Circuit 
(Federal Circuit) has also held that when a claimed disorder 
is not included as a presumptive disorder direct service 
connection may nevertheless be established by evidence 
demonstrating that the disease was in fact "incurred" 
during the service.  See Combee v. Brown, 34 F.3d 1039 (Fed. 
Cir. 1994).

In addition, service connection may be granted for any 
disease diagnosed after discharge, when all of the evidence, 
including that pertinent to service, establishes the disease 
was incurred in service.  38 C.F.R. § 3.303(d).  For the 
showing of chronic disease in service, there are required a 
combination of manifestations sufficient to identify a 
disease entity, and sufficient observation to establish 
chronicity at the time, as distinguished from merely isolated 
findings or a diagnosis including the word chronic.  
Continuity of symptomatology is required only where the 
condition noted during service is not, in fact, shown to be 
chronic or when the diagnosis of chronicity may be 
legitimately questioned.  When the fact of chronicity in 
service is not adequately supported, then a showing of 
continuity after discharge is required to support the claim.  
38 C.F.R. § 3.303(b).

In order to prevail on the issue of service connection on the 
merits, there must be medical evidence of (1) a current 
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 disease 
or injury.  Hickson v. West, 12 Vet. App. 247, 253 (1999).  
The Federal Circuit has held that a veteran seeking 
disability benefits must establish the existence of a 
disability and a connection between service and the 
disability.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 
2000).

The Court has held that where the determinative issue 
involves medical causation or a medical diagnosis, competent 
medical evidence is required.  Grottveit v. Brown, 5 Vet. 
App. 91 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 
492 (1992).  The Federal Circuit has also recognized the 
Board's "authority to discount the weight and probity of 
evidence in light of its own inherent characteristics and its 
relationship to other items of evidence."  Madden v. Gober, 
125 F.3d 1477, 1481 (Fed. Cir. 1997).  VA is free to favor 
one medical opinion over another provided it offers an 
adequate basis for doing so.  See Owens v. Brown, 7 Vet. App. 
429 (1995).

It is the policy of VA to administer the law under a broad 
interpretation, consistent with the facts in each case with 
all reasonable doubt to be resolved in favor of the claimant; 
however, the reasonable doubt rule is not a means for 
reconciling actual conflict or a contradiction in the 
evidence.  38 C.F.R. § 3.102 (2007).
A hearing loss disability for VA compensation purposes is 
defined by regulation and impaired hearing is 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.  
See 38 C.F.R. § 3.385 (2007).

Once the requirements of 38 C.F.R. § 3.385 have been met and 
a present hearing "disability" under applicable VA laws and 
regulations is found, a determination must be made as to 
whether the current hearing disorder is related to service.  
In particular, the Court has held that 38 C.F.R. § 3.385 
operates to establish when a measured hearing loss is, or is 
not, a "disability" for which compensation may be paid, 
provided that the requirements for service connection are 
otherwise met.  Hensley v. Brown, 5 Vet. App. 155 (1993).  
Even if a veteran does not have a hearing loss disability for 
VA compensation purposes recorded during service, service 
connection may still be established if post-service evidence 
satisfies the criteria of 38 C.F.R. § 3.385 and the evidence 
links the present hearing loss to active service.  Id. at 
158.

Factual Background

In this case, the veteran's DD Form 214 listed his military 
occupational specialty as crane shovel operator.   

On the pre-entry Report of Medical History report obtained in 
September 1965, the veteran reported that prior to service, 
he worked in the construction trade.  Service treatment 
records are silent for any reference to hearing loss or 
tinnitus.  On the December 1968 separation examination report 
the examiner noted normal ears.  No complaints of tinnitus 
were recorded.  The audiological pure tone thresholds, in 
decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
10
--
0
LEFT
10
10
15
--
0

In January 1974, the veteran joined the New Hampshire 
National Guard.  He left the National Guard and joined the 
Army Reserves in January 1977.  On the Report of Medical 
History obtained at the time of enlistment, he listed his 
civilian occupation as a production mechanic.  During a 
service examination in January 1977, the audiological pure 
tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
15
5
20
LEFT
15
15
20
25
25

In July 1981, during a periodic service examination, the 
audiological pure tone thresholds, in decibels, were as 
follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
25
15
10
35
LEFT
15
25
25
25
35

The examiner noted the presence of mild hearing loss.  On the 
Report of Medical History that accompanied the examination, 
the veteran reported his civilian occupation as a production 
supervisor.

In June 1985, during a periodic service examination, the 
audiological pure tone thresholds, in decibels, were as 
follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
25
25
15
35
LEFT
15
15
25
35
25

A hearing impairment was noted.  He was determined to be 
physically qualified for retention.  On the Report of Medical 
History that accompanied the examination, the veteran 
reported his civilian occupation as a production mechanic.

In November 1989, on the Report of Medical History that 
accompanied a periodic service examination the veteran 
reported his civilian occupation as a mechanical technician.  
During the audiological evaluation, pure tone thresholds, in 
decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
20
15
45
LEFT
20
20
30
35
40

In September 1990, the veteran indicated in a Report of 
Medical History that his civilian occupation was to maintain 
building machines.  During a periodic service audiology 
examination, the audiological pure tone thresholds, in 
decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
25
20
45
LEFT
20
25
35
40
40

In February 1996, during a periodic service audiology 
examination the veteran reported his civilian occupation as a 
truck driver.  On examination, the audiological pure tone 
thresholds, in decibels, were as follows:



HERTZ



500
1000
2000
3000
4000
RIGHT
20
25
40
45
50
LEFT
25
25
35
30
50

On a post-deployment health assessment dated October 2005, 
the veteran indicated that he did not experience ringing in 
his ears.  A service audiogram from October 2005 revealed 
audiological pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
50
50
50
50
LEFT
30
40
35
30
45

The veteran stated in January 2006 that while on active duty 
from December 1965 through December 1968, he worked as a 
heavy equipment operator.  He said that while serving in 
Vietnam, he worked around rock crushers and was subject to 
incoming and outgoing artillery in addition to constant 
blasting from a rock quarry.  While serving in the National 
Guard and Army Reserve, he said he worked as a mechanic and 
as a crane and heavy equipment operator.  He also indicated 
that he was around firing ranges for weapons qualification.  
While deployed in Iraq in 2005, he reported being exposed to 
incoming rockets and mortars as well as outgoing fire.

During a VA audiology consultation in January 2006, the 
veteran reported a longstanding history of hearing loss.  He 
complained of a "whistling/water running sound" in both of 
his ears.  He denied any prior hear history.  Pure tone 
thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
55
55
40
55
LEFT
50
60
60
65
70

Speech audiometry revealed speech recognition ability of 88 
percent in the right ear and 84 percent in the left ear.

On VA examination in November 2006, the veteran reported 
difficulty understanding what people were saying in all 
listening situations.  He could not be specific about the 
onset of his hearing loss.  He also reported a constant 
tinnitus which sounded like "whistling and a water running 
sound" that started within the past year.  He recounted his 
military and civilian work history.  From 1968 to 1986 he was 
a productive machine mechanic and worked in a shop that had 
its noise levels monitored for OSHA.  For recreation the 
veteran said he hunted, performed carpentry, and used a 
chainsaw without hearing protection.  He also rode a 
motorcycle for several years.

Pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
55
60
60
60
LEFT
40
60
60
65
70

Speech audiometry revealed speech recognition ability of 92 
percent in the right ear and 82 percent in the left ear.

During a May 2007 hearing before a Decision Review Officer at 
the RO, the veteran's accredited representative said that the 
veteran was involved with the National Guard every two weeks 
in addition to two weeks of active duty for training during 
the summer.  He recounted that the veteran served by 
operating a 25-ton crane, driving artillery equipment to 
where it needed to go, and participating as a crew member on 
a 155 mm gun.  He stated that when a 155 mm howitzer was 
fired, it had a noise level of 178 dB.  The representative 
noted that the veteran had progressive hearing loss from 
1977.  He said that when the veteran worked on machinery for 
his civilian job he wore hearing protection and the machinery 
was off.  According to the accredited representative, the 
veteran did hunt recreationally for a few years but he never 
took a shot at an animal.  He said that the veteran only used 
a chainsaw occasionally.  The veteran said that he first saw 
a private audiologist about six or seven years previously.

In May 2007, the VA examiner who performed the November 2006 
examination again reviewed the claims file.  The examiner 
reviewed and commented on the veteran's medical record from 
his first period of active service through the present.  
After commenting individually on events in the treatment 
record that the examiner found significant, the examiner 
opined that it was less likely as not that the veteran's 
hearing loss and tinnitus were related to military service.

During his August 2007 videoconference hearing before the 
undersigned veteran's law judge, the veteran's accredited 
representative noted that the veteran had a mild hearing loss 
in 1977.  He said that when the veteran worked as a civilian 
in a machine shop, the machines were not running.  He said 
that the veteran wore hearing protection while he worked in 
artillery, but he didn't wear it when he operated the cranes 
in the reserves.  The veteran said that he did go hunting a 
couple of times prior to 1977, but he did not recall ever 
firing his weapon.  He also said that he volunteered a lot of 
extra time with the reserves.  He recounted that he first 
really noticed his hearing loss about ten years previously.  
He said that before he entered active duty, he worked on a 
road crew repairing and maintaining roads.

Analysis

Based upon the evidence of record, the Board finds the 
veteran's hearing loss and tinnitus were not incurred as a 
result of an established event, injury, or disease during 
active service.  In this matter, the Board finds the 
November 2006 and May 2007 VA examiner's opinion persuasive.  
The examiner reviewed the claims file on two separate 
occasions, thoroughly interviewed the veteran, and performed 
all necessary tests.  Additionally, in the May 2007 opinion, 
the examiner specifically commented on individual events 
present throughout the veteran's military and medical 
history.  The examiner opined that it was less likely as not 
that the veteran's hearing loss and tinnitus were related to 
military service.  Without competent medical evidence of a 
nexus between the claimed in-service disease or injury and 
the present disease or injury, service connection cannot be 
granted.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).

The Board has considered whether service connection for 
hearing loss and tinnitus could be established on a 
presumptive basis.  To establish service connection for a 
disability on a presumptive basis, the disability must 
manifest itself to a compensable degree within one year of 
the veteran leaving active duty.  See 38 C.F.R. §§ 3.307, 
3.309 (2007).  In this case, the separation examination 
report from the veteran's first period of active duty 
revealed normal ears.  No medical evidence demonstrates that 
the veteran experienced hearing loss to a compensable level 
within a year after his 1968 discharge from active duty.  
Therefore, the presumption cannot apply to the veteran's 
first period of active duty.  While the veteran's hearing 
loss is apparent from audiological evaluations conducted 
around his second and third periods of active duty, the 
presumption of service connection is rebutted by the May 2007 
VA examiner's opinion.  As discussed previously, the May 2007 
VA opinion indicated that it was less likely than not that 
the veteran's hearing loss and tinnitus was related to his 
military service.  The examiner provided adequate reasons and 
bases for the opinion.

The Board has carefully considered the veteran's and 
veteran's accredited representative's statements alleging 
that his hearing loss and tinnitus were caused by his active 
duty service.  While they may sincerely believe the veteran 
has tinnitus and hearing loss as a result of service, they 
are not licensed medical practitioners and are not competent 
to offer opinions on questions of medical causation or 
diagnosis.  Grottveit, 5 Vet. App. 91; Espiritu, 2 Vet. App. 
492.  Therefore, the Board finds entitlement to service 
connection is not warranted.

When all the evidence is assembled VA is then 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 
the claim in which case the claim is denied.  Gilbert v. 
Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 
F. 3d 1361 (Fed. Cir. 2001).  The preponderance of the 
evidence is against the claim.


ORDER

Entitlement to service connection for hearing loss is denied.

Entitlement to service connection for tinnitus is denied.



____________________________________________
RENÉE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs