Citation Nr: 1136843 Decision Date: 09/29/11 Archive Date: 10/11/11 DOCKET NO. 09-08 842 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J.B. Freeman, Counsel INTRODUCTION The Veteran served on active duty from July 1973 to July 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of the RO in Los Angeles, California, which denied the claims. The Veteran testified before the undersigned at a January 2011 hearing at the RO. A transcript has been associated with the file. The Board remanded this case in April 2011. It returns now for appellate consideration. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss is not related to any incident of service, including noise exposure as a coxswain, nor was it manifest to a compensable degree within one year of separation. 2. The Veteran's tinnitus is not related to any incident of service, including noise exposure as a coxswain, nor was it manifest to a compensable degree within one year of separation. CONCLUSIONS OF LAW 1. The Veteran's bilateral hearing loss was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2011). 2. The Veteran's tinnitus was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all 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 preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claims for service connection. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2011). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2011). The United States Court of Appeals for Veterans Claims (Court) held that VA 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; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Court observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. See 38 U.S.C. § 5103(a); see also Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). Compliance with the first Quartuccio element requires notice of these five elements. See id. Prior to initial adjudication of the Veteran's claims, an October 2003 letter purported to satisfy VA's duty to notify obligations. The Board notes that this letter omitted the tinnitus claim entirely and failed to provide the degree of disability and effective date notice provisions under Dingess. A November 2006 letter did in fact satisfy the duty to notify requirements. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. Although this letter was not sent prior to initial adjudication of the Veteran's claim, this was not prejudicial to him, since he was subsequently provided adequate notice in November 2006, he was provided ample opportunity over four years to respond with additional argument and evidence and the claim was readjudicated and a supplemental statement of the case (SSOC) was provided to the Veteran most recently in August 2011. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79 (2006). If VA provides a claimant with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). The Veteran was afforded a May 2011 medical examination to obtain an opinion as to whether his bilateral hearing loss or tinnitus was the result of inservice noise exposure. This opinion was rendered by a medical professional following a thorough examination and interview of the Veteran and review of the claims file. The examiner obtained an accurate history and listened to the Veteran's assertions. The examiner laid a factual foundation and reasoned basis for the conclusions that were reached. Therefore, the Board finds that the examination is adequate. See Nieves-Rodriguez, supra. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Service Connection The Veteran contends that he has bilateral hearing loss and tinnitus as a result of inservice noise exposure. For the reasons that follow, the Board finds that the Veteran's bilateral hearing loss and tinnitus are not related to any incident of service and were not manifest within one year of separation from service. The Board concludes that service connection is not warranted. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. 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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may 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). In order to establish service connection for the claimed disorder, there must be (1) competent and credible evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent and credible evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service, as opposed to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Impaired hearing will be considered a disability for VA purposes when the thresholds for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz are 40 decibels or more; the thresholds for at least three of these frequencies are 26 decibels or more; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2011). At a May 2011 VA examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 20 15 25 45 LEFT 15 20 20 25 50 Speech recognition was 96 percent the right ear and 100 percent in the left. The Veteran clearly has a hearing loss disability for VA purposes. See Hensley, supra. The Veteran was also diagnosed with bilateral tinnitus. The first element of service connection is met. See Hickson, Hensley. The Veteran contends that he had noise exposure during service, while working as a coxswain from October 1973 to October 1974. The Veteran stated in his May 2003 claim that he served aboard 84 foot "Mike"-8 boats, equipped with four diesel engines with twinscrews. The Veteran reported driving Liberty launches. The Veteran reported in his February 2004 that his daily work schedule required his presence on the boats twelve hours a day. The Veteran's April 2005, June and November 2006, November 2007 and February 2009 statements repeated this account. The Veteran's service personnel records show that he qualified as a coxswain in small boats in May 1974. Prior to this, the Veteran had been a postal clerk. The Veteran served aboard the U.S.S. Howard W. Gilmore from October 1973 to November 1974. While the Veteran did not have a year service as a coxswain as he claimed, noise exposure is consistent with the conditions of service as a coxswain from May to November 1974. The Board will assume for the purposes of this decision that the Veteran had inservice noise exposure. 38 U.S.C.A. § 1154(a). The second element of service connection is satisfied. See Hickson, Hensley. This does not, however, mean that the Veteran has a current disability as a result of this inservice noise exposure. At a preinduction physical examination in April 1973, the Veteran underwent an authorized audiological evaluation. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 N/A 5 LEFT 15 15 15 N/A 5 The Veteran was provided February and May 1979 physical examinations for Reserve service. No audiometric scores were recorded. The Veteran denied hearing loss on his report of medical history on both occasions. The Veteran did endorse ear nose or throat trouble, which was explained as earaches. The Veteran testified before the undersigned and has maintained repeatedly in his statements in the course of the instant claim that he believes that his bilateral hearing loss and tinnitus were directly caused by inservice noise exposure. Lay evidence can be competent and sufficient to establish each element of service connection within certain limitations. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology). In this case, the Veteran's statements prior to the January 2011 Board hearing do not explain how the Veteran arrived at his belief that his bilateral hearing loss and tinnitus were related to service. During testimony, the Veteran reported first noticing ringing in his ears about twenty years before. The Veteran did not provide a history of lay observation of either bilateral hearing loss or tinnitus to service. At best, his lay history relates to the early 1990's, fifteen years after separation. Similarly, during the May 2011 VA examination, the Veteran reported a history of about twelve years of tinnitus and bilateral hearing loss. Thus, the Veteran has not reported continuity of symptomatology to service. The Veteran has also not reported that a medical professional had discussed his noise exposure, tinnitus and bilateral hearing loss with him and told him that his tinnitus or bilateral hearing loss might be or likely were related to inservice noise exposure. In the absence of lay symptoms describing continuity of symptoms to service or a competent report of a contemporaneous medical opinion, the Board finds that the Veteran's lay statements are not competent to establish the nexus element. See Hickson, Hensley. The Board acknowledges that the Veteran is competent to give evidence about what he experiences. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). The Board finds that the Veteran's statements are not competent medical evidence. In the absence of either competent lay or medical evidence, the Board remanded the case for a VA examination and opinion to determine if his current complaints of hearing loss or tinnitus were related to service. Following interview and examination of the Veteran and review of the claims file and his service treatment records, the examiner concluded that his hearing loss and tinnitus were not at least as likely as not related to service. The examiner reviewed two prior VA audiology treatment notes from 2003 and 2005. The examiner noted that the probability of noise exposure in the Navy was high and that the Veteran reported a twelve year history of bilateral hearing loss and tinnitus. The Board notes that the examiner described the Veteran's service occupation as a boatswain's mate, not as a coxswain. Considering that the examiner assumed a high probability of noise exposure, there is no harm to the misstatement. The examiner stated that if noise exposure inservice had been sufficient to cause bilateral hearing loss and tinnitus, the Veteran would have noticed them at the latest a few years after discharge. The examiner found that the recent onset of the bilateral hearing loss and tinnitus made the disorders not at least as likely as not related to inservice noise exposure. The Board finds that the evidence against a nexus to service outweighs the evidence in favor. The May 2011 VA opinion addresses the Veteran's lay history of symptoms, the objective evidence of bilateral hearing loss and tinnitus in the VA treatment records and applies general medical principles in a manner producing a reliable opinion. As stated, the Veteran's statements are not competent to establish nexus to service. No other positive evidence is of record regarding the nexus element. The Board finds that the preponderance of the evidence is against a relationship between the Veteran's current hearing loss and tinnitus disabilities and any incident of service, including noise exposure as a coxswain. Service connection on a direct basis must be denied. See Hensley and Hickson, both supra. Where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and other organic diseases of the nervous system (including sensorineural hearing loss) become manifest to a degree of 10 percent within 1 year from date of termination of such 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. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The Veteran's hearing loss and tinnitus were not shown for more than fifteen years after service. The Veteran cannot benefit from the presumption. As such, the Board finds that the preponderance of the evidence is against the Veteran's bilateral hearing loss and tinnitus claims. Consequently, the benefit-of-the-doubt rule does not apply, and the claims must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs