Citation Nr: 1110457 Decision Date: 03/16/11 Archive Date: 03/30/11 DOCKET NO. 09-16 862 ) 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: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from October 1965 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the St. Petersburg, Florida, RO (regional office) of the Department of Veterans Affairs (VA). In January 2011, the Veteran participated in a Travel Board hearing with the undersigned. A transcript of that proceeding has been associated with the Veteran's claims folder. FINDING OF FACT The Veteran's bilateral hearing loss and tinnitus are not related to active service. CONCLUSION OF LAW Bilateral hearing loss, and tinnitus, were not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1153, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309, 3.385 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Service Connection The Veteran asserts that he is entitled to service connection for hearing loss, and tinnitus. During his hearing, held in January 2011, the Veteran testified that he was exposed to loud noise during his service as a jet engine mechanic. He testified that he used earplugs and earmuffs, but at times he only used earphones (during "run-ups"). He testified that he had hearing loss symptoms, and tinnitus symptoms, during service. He testified that following service, he worked as a property appraiser, and in an engine shop at an Air Force base, which both involved little noise exposure, and that he did some construction work, carpentry work, and had employment as a deputy (which required only annual qualifications on the firing range, with double ear protection). It was argued that there is evidence of a "threshold shift" between 500 Hz and 2,000 Hz, as well as a "slight shift in the high frequency loss." In April 2008, the Veteran filed his claims for service connection. In July 2008, the RO denied the claims. The Veteran has appealed. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection may also be granted for an organic disease of the nervous system, such as a sensorineural hearing loss, when manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2010). It is appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and, therefore, a presumptive disability. See Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995. Applicable regulations provide that impaired hearing shall be considered a disability when the auditory thresholds in any of the frequencies of 500, 1,000, 2,000, 3,000, and 4,000 Hz are 40 decibels or greater; the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores are 94 percent or less. 38 C.F.R. § 3.385 (2010). Claimants are presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that the injury or disease in question existed prior to service and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137. Only such conditions as are recorded in entrance examination reports are to be considered as "noted." Crowe v. Brown, 7 Vet. App. 238, 245 (1994). If evidence is submitted sufficient to demonstrate that a veteran's disorder pre-existed service, and underwent an increase in severity during service, it is presumed that the disorder was aggravated by service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is specific evidence that the increase in disability is due to the natural progress of the disease. Id. When a medical professional determines that a current condition is related to an inservice event, then it necessarily follows that the current condition was incurred during service. Godfrey v. Derwinski, 2 Vet. App. 352 (1992) (if a medical relationship exists between current hearing loss and inservice acoustical trauma, it follows that an injury was incurred during service); Hensley v. Brown, 5 Vet. App. 155 (1993) (notwithstanding that hearing loss was not noted upon separation, a medical relationship between current hearing loss and noise exposure during service demonstrates that the veteran incurred an injury during service). The Board observes that service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standard Organization (ISO) units. VA used ASA units prior to July 1966. However, in July 1966, VA adopted International Organization for Standardization (ISO) units, and the military followed suit in November 1967. The current definition for a hearing loss disability found at 38 C.F.R. § 3.385 is based on ISO units. The military audiogram in the instant case conducted in September 1965 must be converted from ASA to ISO units. Essentially, this means adding 10 decibels to the reported findings in most frequencies, the exceptions being adding 15 decibels at 250 and 500 Hertz and 5 decibels at 4000 Hertz. The Veteran's discharge (DD Form 214) shows that his military occupational specialty (MOS) was jet engine mechanic. His personnel file shows that he served as a jet engine mechanic from March 1966 until separation from service. The Veteran's service treatment reports include a pre-induction examination report, dated in September 1965, which includes audiometric test results (converted to ISO units) which show that he had right ear hearing loss as defined at 38 C.F.R. § 3.385. Service treatment reports include an audiogram, dated in April 1968, which does not show that the Veteran had hearing loss in either ear, as defined at 38 C.F.R. § 3.385. A separation examination report, dated in January 1969, includes audiometric test results which do not show that the Veteran had hearing loss in either ear, as defined at 38 C.F.R. § 3.385. An associated "report of medical history" shows that the Veteran denied having a history of hearing loss, "running ears," or "ear, nose or throat trouble." As for the post-service medical evidence, it includes a report from D.K.G., AuD, dated in February 2008, which include audiometric test results which show that the Veteran has bilateral hearing loss, as defined at 38 C.F.R. § 3.385. The report notes the following: the Veteran was a flight-line mechanic for four years during service, during which time he tested jet engines and "cellblocks"; double ear protection was used most of the time except while doing "run-ups," during which he had to remove his earplugs and just use earmuffs; there were anywhere from one to four engines tested, per aircraft, ranging from 30 to 45 minutes each with sustained sound levels over 120dB; the Veteran's right ear was exposed to more sound than his left; after each shift his ears would ring loudly for five to six hours until it became constant; he has had constant tinnitus in both ears since 1965, with no other significant occupational or recreational noise exposure; he reported hearing loss and tinnitus upon separation from service, but was told his hearing would return once he was away from loud noise. The report notes mild to severe sensorineural hearing loss in the left ear, and moderate to profound sensorineural hearing loss in the right ear. The audiologist concluded, "The sensorineural hearing loss and tinnitus are more likely than not a result of noise exposure while in service. Please evaluate and service connect [the Veteran] for hearing loss and tinnitus." A VA audiology examination report, dated in June 2008, shows that the Veteran reported inservice bilateral hearing loss, and service as a mechanic with use of double hearing protection most of the time, but occasionally without during "run-ups." He gave a civilian history of weapons training with a rifle, pistol, and shotgun as a policeman for six years, with double hearing protection, hunting with a .22 rifle and shotgun prior to service and about five times after service, without hearing protection, and riding a lawn mower around the house, with hearing protection. He also gave a history of constant bilateral tinnitus since service, as well as heart disease, smoking, and coffee drinking. On examination, he was shown to have bilateral hearing loss, as it is defined for VA purposes at 38 C.F.R. § 3.385. Response reliability was fair to poor. The diagnosis noted asymmetric hearing loss, worse in the right ear, and constant bilateral tinnitus. The examiner essentially stated that the Veteran's hearing loss and tinnitus were less likely as not (less than a 50/50 probability) caused by or a result of noise exposure, explaining that military noise exposure has been conceded, but that service audiograms revealed a preexisting HFHL (high-frequency hearing loss) AU (both ears) with no threshold shift evident at separation compared to his PI thresholds. The examiner concluded, "Therefore, there is no concrete evidence of any threshold shift in-service that would be consistent with aggravation of HL (hearing loss) from military noise exposure, and it is my clinical opinion that his current tinnitus and HL are less likely as not caused by or a result of his 4 years of military noise exposure that was mostly with double hearing protection, and more likely due to non-military etiologies such as aging, heart disease, pre-existing HL etiology, occupational and recreational (some without hearing protection) noise exposure, caffeine, nicotine, and potentially ototoxic medication. The apparent significant progression of HL is likely evidence of the post-service contribution of non-military etiologies." The audiologist cited to a medical treatise for the proposition that the characteristics of NIHL (noise-induced hearing loss) include that once the exposure to noise is discontinued, there is no significant further progression of hearing loss as a result of noise exposure. The audiologist stated that it would be speculative to allocate a degree of his current hearing loss and tinnitus to each of the non-military etiologies discussed, and that D.K.G. did not reference, and likely did not have access to, the Veteran's SMR (service medical report) evidence. A decision of the Social Security Administration (SSA), dated in May 2005, shows that the Veteran was determined to be disabled as of April 2005, with a primary diagnosis of cardiomyopathy (there was no secondary diagnosis). A statement from the Veteran's spouse, received in April 2008, shows that she asserts that she met the Veteran in 1983, and that he had a hearing deficiency at that time which he attributed to his service, and that his hearing has worsened since that time. A statement from C.G.T., received in April 2008, shows that the author asserts that she was married to the Veteran between 1967 and 1980, and that he had right ear ringing, and progressive worsening of his hearing. The Board has determined that the claims must be denied. With regard to the right ear, the Veteran's audiogram test results upon entrance into service show that he had right ear hearing loss, as defined at 38 C.F.R. § 3.385. Given the foregoing, right ear hearing loss was "noted" upon entrance to service. Crowe. Therefore, the presumption of soundness does not attach, and need not be rebutted. See VAOPGCPREC 3- 2003, 69 Fed. Reg. 25178 (2004). In deciding a claim based on aggravation, after having determined the presence of a preexisting condition, the Board must first determine whether there has been any measured worsening of the disability during service, and then whether this constitutes an increase in disability. See Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306(a). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The presumption of aggravation is applicable only if the pre-service disability underwent an increase in severity during service. Id. at 296; see also Beverly v. Brown, 9 Vet. App. 402, 405 (1996). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b). The Board finds that the evidence in insufficient to show that the Veteran's right ear hearing loss underwent an increase in disability during service. His right ear hearing loss was noted prior to entrance into service. He was not shown to have right ear hearing loss in an April 1968 audiogram, nor was he shown to have right ear hearing loss upon separation from service in January 1969. In addition, the earliest post-service medical evidence of right ear hearing loss is dated in 2008, which is about 39 years after separation from service. This lengthy period without treatment is evidence that there has not been a continuity of symptomatology, and it weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330, (Fed. Cir. 2000). Furthermore, in June 2008, a VA audiologist stated that there was no concrete evidence of any threshold shift in-service that would be consistent with aggravation of hearing loss from military noise exposure. The audiologist determined that the Veteran's hearing loss is less likely as not caused by or a result of his service. The audiologist indicated that his opinion was based on a review of the Veteran's C-file and medical records, and his opinion is accompanied by a sufficient rationale. This opinion is therefore considered to be highly probative evidence against the claim. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.); Neives- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Finally, the Board points out that the VA audiologist's opinion, which attributes the Veteran's hearing loss to etiologies that included aging, heart disease, occupational and recreational noise exposure, caffeine, and nicotine, is consistent with post-service medical evidence of record, which show that he was about 62 years old in 2008 (i.e., at the time of the earliest post-service evidence of hearing loss), that he has a history of employment as a police officer, and a carpenter, with post-service exposure to noise from riding a lawn mower, that he has been treated for a "myocardial infarction with history of cigarette abuse," and coronary artery disease, in 1985, with treatment noted to include four medications, and that he had considerable additional treatment for heart symptoms, with use of medication, between 2001 and 2005. See private medical reports associated with the SSA's decision, dated between 2001 and 2005; see also VA form 21-527, received in March 1985. The June 2008 VA examination report also shows that the Veteran reported drinking coffee daily. The Board therefore finds that the Veteran's pre-existing right ear hearing loss did not undergo an increase in disability during service. As the disability underwent no increase in severity during service, aggravation may not be conceded. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). Accordingly, service connection for right ear hearing loss is not warranted. With regard to the claims for left ear hearing loss, and tinnitus, the Veteran's service treatment reports do not show treatment for tinnitus. His service audiograms do not show that he had left ear hearing loss, as defined for VA purposes at 38 C.F.R. § 3.385. His separation examination report does not note tinnitus. The earliest medical evidence of either left ear hearing loss, or tinnitus, is dated in 2008. This is approximately 39 years after separation from service. This lengthy period without treatment is evidence that there has not been a continuity of symptomatology, and it weighs heavily against the claims. Maxson. Furthermore, the June 2008 VA examination report shows that the audiologist concluded that the Veteran's current tinnitus and hearing loss are less likely as not caused by or a result of his military noise exposure. As previously stated, the VA audiologist indicated that his opinion was based on a review of the Veteran's C-file and medical records, and his opinion is accompanied by a sufficient rationale. This opinion is therefore considered to be highly probative evidence against the claims. Prejean; Neives- Rodriguez. Finally, there is no competent evidence to show that left ear sensorineural hearing loss was manifested to a compensable degree within one year of separation from service. See 38 C.F.R. §§ 3.307, 3.309. Accordingly, the Board finds that the preponderance of the evidence is against the claims, and that the claims must be denied. In reaching this decision, the Board has considered the February 2008 report of D.K.G. However, this opinion is not shown to have been based on a review of the Veteran's C-file, or any other detailed and reliable medical history, and its rationale is not considered highly probative, as it makes no mention of the various etiological factors noted in the June 2008 VA examination report, nor does it contain a discussion of the Veteran's pre- and post-service occupational and recreational noise exposure (merely noting "no other significant occupational or recreational noise exposure"), and as it does not discuss any of the inservice audiograms. Prejean; Neives-Rodriguez; see also Hampton v. Gober, 10 Vet. App. 481 483 (1997) (noting that a medical examiner must consider the records of prior medical examinations and treatment in order to ensure a fully informed opinion). Therefore, this opinion is insufficiently probative to warrant a grant of the claim. With regard to the Veteran's own contentions, and the lay statements, a layperson is generally not capable of opining on matters requiring medical knowledge. Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The issues on appeal are based on the contentions that bilateral hearing loss, and tinnitus, were caused or aggravated by service that ended in 1969. The Veteran has stated that he had had hearing loss, and tinnitus, since his service. This lay evidence is competent evidence to show that the Veteran experienced symptoms of hearing loss, and ringing in the ears. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). In this regard, to the extent that the Veteran has asserted that he reported having hearing loss upon separation from service, the "report of medical history" accompanying his January 1969 separation examination report shows that he indicated that he did not have a history of hearing loss. This service treatment report is considered more probative evidence as to this aspect of the claim. See Struck v. Brown, 9 Vet. App. 145, 155-56 (1996) (contemporaneous medical findings may be given more weight than a medical opinion coming many years after separation from service). However, competency of evidence must be distinguished from the weight and credibility of the evidence, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence; if the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Board finds that the lay statements are insufficiently probative to warrant a grant of either of the claims. The issues on appeal are based on the contentions that bilateral hearing loss, and tinnitus, were caused or aggravated by service that ended in 1969. The Veteran's other descriptions of his symptoms have been considered. Although the arguments as to whether or not the service audiograms have been considered, the Board finds that the medical evidence warrants greater probative value on the issues of whether his bilateral hearing loss, or tinnitus, are related to his service, to include the June 2008 VA examination report and its discussion as to the lack of medically significant threshold shifts. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Specifically, when the Veteran's service treatment records, and his post-service medical records are considered (which do not show any relevant treatment prior to 2008, and which contain highly probative competent opinions against the claims), the Board finds that the service treatment reports, and the medical evidence, outweigh the lay statements, to the effect that the Veteran has the claimed conditions that are related to his service. In reaching these decisions, the Board has considered the doctrine of reasonable doubt, however, as is stated above, the preponderance of the evidence is against the appellant's claims, and the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. VCAA The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). The notification obligations in this case were accomplished by way of a letter from the RO to the Veteran dated in April 2008. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issues on appeal have been obtained and are associated with the Veteran's claims file. The RO has obtained the Veteran's VA and non-VA medical records, and SSA records. The Veteran has been afforded an examination, and an etiological opinion has been obtained. A review of the VA examination report shows that the examiner stated that he had reviewed the Veteran's C- file. It shows that the examiner recorded the Veteran's verbal history of his symptoms, and summarized his relevant medical history. An audiological examination was performed, and detailed findings are included in the report. The examiner essentially determined that the Veteran's bilateral hearing loss, and tinnitus, are not related to his service, and his opinions are accompanied by a sufficient rationale. The Board stresses that the Veteran's assertions as to his inservice noise exposure are considered credible. However, upon a review of his C-file, the audiologist determined that his current hearing loss and tinnitus are not related to his service. Given the foregoing, there is no basis to find that this report is inadequate, or that a remand for another opinion is required. See 38 C.F.R. § 3.159(d) (2010); Neives-Rodriguez; Prejean. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER The appeal is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs