Citation Nr: 1206363 Decision Date: 02/21/12 Archive Date: 03/01/12 DOCKET NO. 10-35 098 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD V. Chiappetta, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from February 1951 to January 1953. This matter is before the Board of Veterans' Appeals (the Board) on appeal of a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the Veteran's service-connection claims for a bilateral hearing loss disability and for tinnitus. The Veteran disagreed with these determinations, and perfected an appeal as to both issues. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The evidence of record does not demonstrate that a relationship exists between the Veteran's current bilateral hearing loss disability and his active duty military service. 2. The evidence of record does not demonstrate that a relationship exists between the Veteran's tinnitus and his active duty military service. CONCLUSIONS OF LAW 1. A bilateral hearing loss disability was not incurred in active duty military service, and may not be so presumed. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2011). 2. Tinnitus was not incurred in active duty military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2011), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2011), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, defined to include: (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 of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In the case at hand, the record reflects that the originating agency provided the Veteran with the notice required under the VCAA and under Dingess by a letter mailed in October 2009. Subsequently, in December 2009, the RO adjudicated the Veteran's claims in the first instance. The Veteran filed a timely appeal as to this December 2009 rating decision. Accordingly, with respect to VCAA notice, there is no prejudice to the Veteran in the Board's proceeding with the issuance of a decision on the merits as to his service-connection claims for a bilateral hearing loss disability and for tinnitus. Concerning the VA's duty to assist, the Board notes that the Veteran's service treatment records, his lay statements of argument, and a private audiological examination dated in 1999 have been obtained. Pertinently, the Veteran has not indicated that any other VA treatment reports relevant to his hearing loss and tinnitus claims currently exist, nor has he requested that the VA attempt to obtain any other private treatment records. The Board notes that a response from the National Personnel Records Center (NPRC) to VA's request for service treatment records included an indication that the Veteran's record is "fire-related." Pertinently however, the Veteran's service treatment records were not destroyed in a fire, but rather, were simply determined to be "moldy or brittle" by the NPRC and could not be mailed. See the September 2009 Request/Response Information sheet. As a result, the NPRC photocopied the Veteran's records, and mailed them to VA to associate with the file. These records, although clearly singed on the edges, are legible, and include entrance and separation examinations, as well as dental records for the Veteran's two years of active service. The Veteran has not suggested that these records are incomplete, and the Board finds no reason to believe that a request for additional records would be anything but an exercise in futility. With respect to the December 2009 VA examination conducted in conjunction with this appeal, the Board observes that the findings contained therein are more than adequate to adjudicate the Veteran's claims. The report of this examination reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate examination, and rendered appropriate diagnoses consistent with the remainder of the evidence of record. The examination report included audiological testing of the Veteran, to include puretone threshold readings as well as speech recognition scores using the Maryland CNC test. Furthermore, the examiner provided an opinion addressing whether the Veteran's hearing loss and/or tinnitus were related to in-service noise exposure. The Board therefore concludes that this December 2009 examination report is adequate for rating purposes. See 38 C.F.R. § 4.2 (2011); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations or opinions with respect to the issues on appeal have been met. 38 C.F.R. § 3.159(c)(4). In short, the Board has carefully considered the provisions of the VCAA, in light of the record on appeal and, for the reasons expressed above, finds that the development of these issues has been consistent with said provisions. The Board is satisfied that any procedural errors in the originating agency's development and consideration of the issues were insignificant and nonprejudicial to the Veteran. The Veteran has been accorded ample opportunity to present evidence and argument in support of his claims. See 38 C.F.R. § 3.103 (2011). He has retained the services of a representative, and declined an opportunity for a personal hearing. Accordingly, the Board will address the claims on appeal. Relevant law and regulations In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303. Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2011). In order to establish service connection for the claimed disorder on a direct basis, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus or relationship between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). For certain chronic disorders, including sensorineural hearing loss disability, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2011). No such presumption exists for tinnitus disabilities. Under § 3.303(b), an alternative method of establishing the second and/or third element of Hickson is through a demonstration of continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495-97; see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385 (2011). For the purposes 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, 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. 38 C.F.R. § 3.385 (2011). When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. See Hensley, supra. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis In essence, the Veteran contends he has a bilateral hearing loss disability and a tinnitus disability that were each caused by acoustic trauma endured in performance of his duties as a pumpman while serving in the motor pool during active duty service in the early 1950s. See the Veteran's September 2009 Application for Compensation, part B, page 2. As noted above, in order to establish service connection for the claimed disorders, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the two. See Hickson, 12 Vet. App. at 253. With respect to Hickson element (1), current disability, it is undisputed that the Veteran currently has a bilateral hearing loss disability for VA purposes. Audiometric testing at the December 2009 VA examination demonstrated that the Veteran had puretone threshold values over 40 decibels at four frequencies in the left ear, and at three frequencies in the right. See the December 2009 VA examiner's report, page 2; see also 38 C.F.R. § 3.385. The VA examiner also specifically noted that the Veteran currently experiences bilateral intermittent tinnitus. See the December 2009 VA examiner's report, page 2. Accordingly, current hearing loss and tinnitus disability is demonstrated by the record. Hickson element (1) is therefore satisfied as to both issues. With respect to Hickson element (2), in-service disease or injury, the Board will separately address disease and injury. Concerning in-service disease, the Veteran's service treatment records do not reflect that the Veteran complained of, sought treatment for, or was diagnosed with any disease affecting his ears. Service audiological testing reflects no worsening of hearing loss during service. A February 1951 service entrance examination demonstrated that the Veteran's bilateral hearing acuity was within normal limits, with scores of fifteen out of fifteen in the whisper voice test bilaterally. A January 1953 service separation examination similarly demonstrated that the Veteran's bilateral hearing acuity was within normal limits, with scores of fifteen out of fifteen in the whisper voice test bilaterally. While audiometric testing is undoubtedly more precise than a whisper voice test, the whisper voice test is an alternative means of testing hearing. See Smith v. Derwinski, 2 Vet. App. 137, 138, 140 (1992). The Board adds that there is no medical evidence of record demonstrating that the Veteran developed bilateral sensorineural hearing loss as defined by VA under 38 C.F.R. § 3.385 within his first year following his separation from service in January 1953. As such, service-connection for hearing loss may not be presumed under the provisions of 38 C.F.R. § 3.309(a). Concerning in-service injury, the Veteran contends that his duties as a pumpman in the motor pool exposed him to acoustic trauma in service, as he was required to work in loud garages with heavy machinery and engines. See the Veteran's March 2010 Notice of Disagreement. The Veteran is certainly competent to discuss whether or not he worked around loud noise. See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007). His DD-214 confirms his military occupational specialty as "pumpman," and the Board finds no reason to doubt that the Veteran experienced in-service noise exposure working with engines and heavy machinery during his active duty military service. Hickson element (2) is therefore satisfied as to both issues as well. With respect to crucial Hickson element (3), nexus or relationship, the only medical opinion of record addressing the etiology of the Veteran's hearing loss and tinnitus disabilities is that of the December 2009 VA examiner, who after reviewing the Veteran's claims folder, opined that it is less likely as not that the Veteran's hearing loss and tinnitus are related to or caused by military noise exposure. In formulating this opinion, the VA examiner recognized the Veteran's two years of noise exposure as a pumpman in the motor pool during service, but placed more significance on the fact that the Veteran had 30 years of post-service occupational noise exposure as a millwright and equipment operator, working with compressors. See the December 2009 VA examiner's report, pages 1 and 3. There is no medical opinion of record contrary to that of the December 2009 VA examiner. The Veteran has been accorded ample opportunity to furnish medical and other evidence in support of his service-connection claims, and against the reasoned conclusions of the December 2009 VA examiner; he has not done so. See 38 U.S.C.A. § 5107(a) [it is a claimant's responsibility to support a claim for VA benefits]. The June 1999 private audiology examination submitted by the Veteran confirms a diagnosis of hearing loss at that time, but makes no suggestion as to the etiology of the disease. See the June 1999 private audiogram report by the Q.M.C. As noted above, under § 3.303(b), an alternative method of establishing the third element of Hickson is through a demonstration of continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495-97; see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). The Board notes that at no time during the appeal period has the Veteran asserted that his tinnitus disability had its onset during service, or that he has experienced tinnitus continuously since service, and there is no favorable medical evidence of record to suggest otherwise. The Veteran has however recently asserted that his hearing loss began during his military service. See the Veteran's September 2010 VA Form 9. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ["although interest may affect the credibility of testimony, it does not affect competency to testify"]. As noted above, lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. Barr v. Nicholson, 21 Vet.App. 303, 307 (2007). The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) ["[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"]. With regard to the Veteran's assertion of continuity of hearing loss symptomatology since service, the Board finds that such assertions are competent, but not credible. Significantly, the Veteran's September 2010 assertions of in-service onset are inconsistent with the history he originally provided to VA when he first filed his claim for service connection in September 2009. Indeed, the Veteran specifically noted on his application for compensation that his hearing loss disability began in 1999, more than 45 years following his separation from service in 1953. See Caluza v. Brown, 7 Vet. App. 498 (1995) [in determining whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of a veteran]; see also the Veteran's September 2009 Application for Compensation, part B, page 1. Additionally, as noted above, the Veteran's service treatment records do not reflect that the Veteran had anything but normal hearing in service. His whisper voice tests were 15/15 at entrance and separation, and he was assigned a score of "H-1" for his hearing both at entrance and separation from service on his Physical Profile Serials [or as it is more commonly known, PULHES]. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) [observing that the "PULHES" profile reflects the overall physical and psychiatric condition of the veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of fitness for retention in the military service); the "H" reflects the state of the "hearing and ear"]. The Veteran's absence of hearing loss complaints, both in-service and for decades after his separation, also weighs against a finding of continuity. See Buchanan, 451 F.3d at 1337 [The Board may "weigh the absence of contemporaneous medical evidence against the lay evidence of record"]; Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) [noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised]; Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) [affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of the claimed condition]. In light of the Veteran's conflicting histories as to the date of onset for his hearing loss, his pertinently normal service treatment records, the absence of complaint or treatment for any hearing problems in-service or for multiple decades thereafter, his 30 year history of post-service occupational noise exposure coupled with the December 2009 VA examiner's emphasis on that post-service noise exposure in rendering a negative nexus opinion, and the Veteran's potential bias, the Board is unable to afford the Veteran's statements any probative value with respect to the question of whether there has been a continuity of hearing loss symptomatology since service. See Caluza, supra. Thus, no credible evidence of record, lay or medical, supports a finding of continuity of hearing loss symptomatology since the Veteran's separation from service in 1953. As noted above, the Veteran has not contended that his tinnitus had its onset in service. Indeed, he specifically noted onset of tinnitus in September 1999 on his September 2009 Application for Compensation. Accordingly, Hickson element (3), relationship or nexus, has not been satisfied as to both issues, and the Veteran's service-connection claims fail on this basis alone. The benefit of the doubt rule is not for application because the evidence is not in relative equipoise. ORDER Service connection for a bilateral hearing loss disability is denied. Service connection for tinnitus is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs