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