Citation Nr: 1219829 Decision Date: 06/06/12 Archive Date: 06/20/12 DOCKET NO. 09-48 637 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Barstow, Associate Counsel INTRODUCTION The Veteran had active military service from July 1964 to June 1967. He also had service in a reserve component, including the National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDINGS OF FACT 1. Hearing loss was first manifested several years after the Veteran's active duty and is not causally or etiologically related to military service. 2. The Veteran has tinnitus that is as likely as not related to his military service. CONCLUSIONS OF LAW 1. The Veteran does not have hearing loss that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2011). 2. Resolving reasonable doubt in favor of the Veteran, he has tinnitus that is the result of disease or injury incurred during active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board has considered the legislation regarding VA's duty to notify and to assist claimants but finds that, given the favorable action taken herein with regard to the issue of entitlement to service connection for tinnitus, no further discussion of these VCAA requirements is required with respect to this claim. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). As for the issue of service connection for hearing loss, a pre-decisional letter dated in June 2009 complied with VA's duty to notify the Veteran. This letter apprised the Veteran of what the evidence must show to establish entitlement to the benefit sought, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. Additionally, the letter notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist, the RO obtained the Veteran's service treatment records (STRs), National Guard personnel records, and also secured an examination in furtherance of his claims. VA has no duty to inform or assist that was unmet. The Veteran has not identified any pertinent medical records that have not been obtained and associated with the claims folder. A VA examination/opinion with respect to the issue of service connection for hearing loss was obtained in August 2009. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The August 2009 VA examination obtained in this case is sufficient, as it considered all of the pertinent evidence of record, including the statements of the Veteran, and provided an explanation for the opinion stated. The Board finds that VA's duty to assist the Veteran with respect to obtaining a VA examination/opinion concerning the issue of service connection for hearing loss adjudicated herein has been met. 38 C.F.R. § 3.159(c)(4). II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (1995). Certain chronic diseases (e.g., organic diseases of the nervous system such as sensorineural hearing loss) may be presumed to have been incurred in or aggravated by service if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307(a)(3); 3.309(a) (2011). Active military service includes any period of active duty for training (ACDUTRA) during which the individual was disabled from a disease or an injury incurred in the line of duty, or a period of inactive duty training during which the veteran was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). ACDUTRA includes full-time duty in the Armed Forces performed by the Reserves for training purposes. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Inactive duty training includes duty, other than full-time duty, prescribed for the Reserves. 38 U.S.C.A. § 101(23)(A) (2011). Reserves includes the National Guard. 38 U.S.C.A. § 101(26), (27) (2011). The fact that a claimant has established status as a "veteran" for purposes of other periods of service (e.g., the veteran's period of active duty) does not obviate the need to establish that the claimant is also a "veteran" for purposes of the period of ACDUTRA or inactive duty training where the claim for benefits is premised on that period of ACDUTRA or inactive duty training (INACDUTRA). See Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). When a claim for service connection is based upon an injury that occurred during a period of ACDUTRA or INACDUTRA, presumptive periods and the presumption of sound of condition do not apply, regardless of whether the individual had a prior period of active service. Smith v. Shinseki, 24 Vet. App. 40, 44-46 (2011); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies 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. The absence of evidence of hearing loss in service is not a bar to service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The Veteran contends that he has hearing loss and tinnitus as a result of in-service acoustic trauma. His DD 214 shows that his military occupational specialty (MOS) was that of a combat engineer. According to his personnel records, the Veteran had various periods of ACDUTRA and INACDUTRA between July 1982 and October 1986. The Veteran's STRs include an enlistment examination in June 1964 that show his hearing acuity in puretone thresholds. (The Board observes that service department audiometric readings prior to November 1, 1967, must be converted from American Standards Association (ASA) units to newer International Standard Organization (ISO) units for comparison purposes. As this evaluation was conducted prior to November 1967, the Board has converted the ASA units to ISO units as shown below (in parentheses).) The Veteran had puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) 5 (15) 5 (15) 5 (15) -5 (0) LEFT 5 (20) 10 (20) 5 (15) 5 (15) -5 (0) The Veteran's discharge examination in March 1967 also reported his hearing acuity in puretone thresholds. (As this evaluation was also conducted prior to November 1967, the Board has converted the ASA units to ISO units as shown below (in parentheses).) These puretone thresholds, in decibels, are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 (30) 0 (10) 0 (10) -- 0 (5) LEFT 0 (15) 0 (10) 0 (10) -- 0 (5) In his accompanying report of medical history, the Veteran denied having hearing loss or ear trouble. As noted in the Introduction, the Veteran also had service in a reserve component, including the National Guard. His STRs from his National Guard service include several audiometric examinations. An examination in July 1982 revealed puretone thresholds, in decibels, are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 10 15 18 LEFT 15 15 15 18 20 His accompanying report of medical history shows that he again denied having hearing loss or ear trouble. A periodic examination in October 1986 revealed puretone thresholds, in decibels, are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 5 40 35 LEFT 20 20 25 30 25 Minimal hearing loss was notated. The Veteran was advised to wear hearing protection. In his accompanying report of medical history, the Veteran answered no to having hearing loss or ear trouble. National Guard examinations in July 1990 and November 1993 continued to show bilateral hearing loss. In his June 2009 claim, the Veteran reported that he was not provided proper hearing protection in service. He indicated that he had experienced tinnitus since service. In a July 2009 statement, he reported having tinnitus since 1965. The Veteran was afforded a VA examination in August 2009. He reported bilateral hearing loss with gradual onset and unknown onset time. He reported that he had had to ask people to repeat themselves for at least 15 years. The onset of his constant bilateral tinnitus was in the mid-1960s. The Veteran reported in-service noise exposure from being a combat engineer, demolitions, and being a wheel and track vehicle mechanic. Hearing protection was available, but he was not encouraged to wear it. In 1967, he was an instructor on the night firing range without hearing protection. As a civilian, he worked on a punch press for 19 years with hearing protection. Recreationally, he had gone hunting about two or three times per year for the last three or four years with hearing protection. Hearing examination revealed bilateral hearing loss as defined by VA in accordance with 38 C.F.R. § 3.385. He was diagnosed with bilateral sensorineural hearing loss. The examiner noted that audiometric data from his National Guard service indicated normal hearing bilaterally in July 1982. His hearing loss deteriorated after that time (October 1986, July 1990, and November 1993). There were no complaints of tinnitus. Due to normal hearing bilaterally in July 1982, it was obvious to the examiner that the Veteran had had normal hearing at separation from active duty in 1967. There were no complaints of tinnitus in any of the National Guard records either. In part because of the lack of evidence of loss of acuity until many years after active duty service and the absence of complaints of tinnitus in any available records, and because of the excessive amount of civilian occupational noise exposure, it was the examiner's opinion that it was not at least as likely as not that hearing loss and tinnitus were related to military service. In his August 2009 notice of disagreement, the Veteran contended that he incurred acoustic trauma during his National Guard service in drills and summer camps. He reported that he worked in his military MOS at those times. Based on a review of the record, the Board concludes that service connection for hearing loss is not warranted, but service connection for tinnitus is warranted. The Board notes the likelihood of noise exposure during the Veteran's period of active duty service from July 1964 to June 1967 as evidenced by the Veteran's MOS as a combat engineer and his own statements. Additionally, the evidence clearly shows that the Veteran has a current bilateral hearing loss disability as defined by VA, as well as tinnitus. However, with regard to the Veteran's hearing loss, the evidence fails to show a nexus to any in-service noise exposure. In this case, the only nexus opinion of record, that of the August 2009 VA examiner, indicates that the Veteran's hearing loss is not related to his military service. That opinion is uncontradicted. As explained by the VA examiner, the Veteran was shown to have normal hearing acuity bilaterally in July 1982, over one decade after the Veteran was discharged from active duty service. Although the absence of hearing loss at discharge from service is not a bar to service connection, the Board finds the fact that the Veteran had normal hearing bilaterally in 1982 weighs against a finding that his hearing loss can be traced to his period of active duty service that ended in 1967. As the VA examiner's opinion was premised, in part, on the Veteran having normal hearing acuity in 1982, the Board finds the opinion to be probative evidence regarding onset of loss of acuity. Although the Veteran reported wearing hearing protection after service while working on a punch press, a reasonable inference to make from the examiner's opinion is that loss of hearing acuity is not attributable to any activities of the appellant's service, including those during ACDUTRA or INACDUTRA. Even if read in a light most favorable to the Veteran, the opinion falls short of linking any hearing loss to any period of military service. No medical professional has provided any opinion suggesting that any hearing loss is related to acoustic exposure during military service. The August 2009 examiner had the benefit of reviewing the Veteran's records, in addition to taking into account his statements, and did not opine that hearing loss was related to any National Guard service. Although the Veteran's hearing loss was noticed while the appellant was serving as a member of the National Guard, the evidence fails to show that it was the result of any specific instance of acoustic trauma during such service. Therefore, the evidence does not support a finding that the Veteran's hearing loss is related to his National Guard service. Given the lack of competent evidence linking hearing loss to military service or any event coincident with service, including any period of ACDUTRA or INACDUTRA, the Board finds that the preponderance of the evidence is against this claim. Additionally, as there is no indication that hearing loss was manifested to a degree of 10 percent or more within one year from the Veteran's discharge from active military service in 1967, service connection on a presumptive basis is not warranted. See 38 C.F.R. §§ 3.3.07, 3.309. As noted above, there is no indication that any period of ACDUTRA or INACDUTRA has qualified as "active military service," such that the one-year presumption may be applied to any such period. The Board acknowledges the Veteran's belief that he has hearing loss that is related to his military service. However, there is no evidence of record showing that he has the specialized medical education, training, and experience necessary to render a competent medical opinion as to etiology of a disability. Espiritu v. Derwinski, 2 Vet. App. 492 (1992); 38 C.F.R. § 3.159(a)(1) (2011). Thus, the Veteran's own assertions as to etiology of a disability have no probative value. Without competent evidence of the onset of hearing loss during military service or competent evidence of a link between current hearing loss and any period of service, service connection for hearing loss is not warranted. Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for bilateral hearing loss. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection hearing loss is denied. See 38 U.S.C.A §5107 (West 2002 & Supp. 2011). As for the Veteran's tinnitus claim, the Board finds that the evidence supports a finding of a nexus between his military service and his current tinnitus. The Veteran has reported that he has experienced tinnitus since about 1965 when he was on active duty. The Veteran is competent to report his having experienced such a disability. Layno v. Brown, 6 Vet. App. 465 (1994). Also, a layperson is competent to testify as to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). The Board finds the Veteran competent and credible regarding his reports of tinnitus beginning during active duty in the 1960s. In reaching this conclusion, the Board acknowledges that the VA examiner opined that the Veteran's tinnitus was not related to his military service due to the absence of complaints in his STRs. However, such opinion did not address the Veteran's competent and seemingly credible contentions regarding the onset of his tinnitus and the continuity of his symptoms since service. Therefore, the Board finds that the VA examiner's nexus opinion lacks probative value as to the issue of service connection for tinnitus. Further, the Board observes that, in some instances, lay evidence may be sufficient to establish a nexus. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (rejecting view lay person is not competent to provide testimony regarding nexus). In this case, the Veteran has provided a credible report that his tinnitus began in service. There is nothing in the record to directly contradict the Veteran's statements regarding the onset of his tinnitus being in service and of a continuity of symptomatology since service. The Board consequently concludes that the Veteran's reports alone are sufficient to establish a positive nexus to military service. Accordingly, with the benefit-of-the-doubt doctrine applied in the Veteran's favor, the Board finds that it is at least as likely as not that he has tinnitus that began during active duty service. The evidence is in favor of the grant of service connection for tinnitus. See 38 U.S.C.A §5107. ORDER Entitlement to service connection for hearing loss is denied. Entitlement to service connection for tinnitus is granted. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs