Citation Nr: 1237145 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 09-08 110 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from April 1963 to April 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota, in which the RO denied service connection for a bilateral hearing loss disability and tinnitus. FINDINGS OF FACT 1. A bilateral hearing loss disability did not manifest in service, within the one year presumptive period, or for many years thereafter, and current bilateral hearing loss disability is unrelated to service. 2. Tinnitus did not manifest in service or for many years thereafter, and current tinnitus is unrelated to service. CONCLUSIONS OF LAW 1. Bilateral hearing loss disability was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012). 2. Tinnitus was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist 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 (2012), 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. 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. Additionally, the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002) 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). The timing requirement enunciated in Pelegrini applies equally to the initial disability-rating and effective-date elements of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the RO provided the Veteran with the notice required under the VCAA in a pre-rating letter dated in April 2008. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records (STRs) and the Veteran submitted a private audiology evaluation from Hearing Solutions, Inc. No other post-service treatment records were identified. In June 2008, the Veteran was provided with a VA examination. As the VA examination and medical opinion included a review of the pertinent medical history, clinical findings, and diagnoses, and was supported by medical rationale, the Board finds that the examination is adequate to make a determination on these claims. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claims for service connection are thus ready to be considered on the merits. Legal Criteria Initially, the Board notes that the Veteran does not claim that his hearing loss and tinnitus are the result of combat nor does the evidence indicate that he served in combat. Thus, he is not entitled to application of the provisions of 38 U.S.C.A. § 1154(b) (West 2002). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including organic disease of the nervous system, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a) , 3.309(a). See also Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995 (sensorineural hearing loss is an organic disease of the nervous system). The threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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, 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Analysis In this case, the Veteran asserts that he has bilateral hearing loss and tinnitus as a result of noise exposure during service - specifically, from working on the flight line and around evacuation buses. Prior to November 1967, service departments used ASA units to record puretone sensitivity thresholds in audiometric measurement. VA currently uses ISO (ANSI) units. For purposes of comparison between the service audiometric data and more recent VA audiometric data, the table below shows the ASA measurements recorded in service, with the comparable ISO (ANSI) measurements in parentheses. At the time of the Veteran's April 1963 enlistment examination, pure tone thresholds, in decibels, were noted as follows: HERTZ For ISO add 500 (15) 1000 (10) 2000 (10) 3000 (10) 4000 (5) RIGHT 5 (20) 0 (10) 0 (10) -- 5 (10) LEFT 0 (15) 0 (10) 5 (15) -- 5 (10) On physical examination, the Veteran's ears were normal and on the corresponding Report of Medical History, he denied ear, nose, and throat trouble. In April 1964, the Veteran underwent an examination for initial flight status. Pure tone thresholds, in decibels, were noted as follows: HERTZ For ISO add 500 (15) 1000 (10) 2000 (10) 3000 (10) 4000 (5) 6000 (10) RIGHT -5 (10) -10 (0) -5 (5) -5 (5) 5 (10) -5 (5) LEFT -5 (10) -5 (5) 5 (15) 5 (15) 5 (10) 5 (15) On physical examination, the Veteran's ears were normal and on the corresponding Report of Medical History, he denied ear, nose, and throat trouble. At the time of the Veteran's November 1966 separation examination, pure tone thresholds, in decibels, were noted as follows: HERTZ For ISO add 500 (15) 1000 (10) 2000 (10) 3000 (10) 4000 (5) 6000 (10) RIGHT -5 (10) -10 (0) -10 (0) -5 (5) 0 (5) 5 (15) LEFT 0 (15) 0 (10) 0 (10) 0 (10) 5 (10) 5 (15) On physical examination, the Veteran's ears were normal and on the corresponding Report of Medical History, he denied ear, nose, and throat trouble, and hearing loss. Post service, a March 2008 private audiology evaluation report from Hearing Solutions, Inc., reflects that the Veteran reported difficulty hearing, especially with background noise. He also complained of severe tinnitus, which he described as "crickets chirping". The audiologist indicated that the Veteran's military specialty was transporting casualties and the wounded from the flight line to the appropriate triage centers and that he operated the "Air-Vac" bus and was required to be on the flight line one to two hours prior to the aircrafts scheduled landings. He said he was subjected to many hours of jet engine noise and was not issued hearing protection. Following military service, the Veteran reported that he worked in a typical office and did not have any significant noise exposure. The Veteran's puretone thresholds, in decibels, were as follows (in ISO units): HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 60 70 80 LEFT 25 40 75 75 90 Speech audiometry revealed speech recognition ability of 72 percent in the right ear and of 80 percent in the left ear at 80 to 90 db. The audiologist indicated that the Veteran's hearing loss was consistent with noise induced hearing loss with a significant reduction of high frequency sensitivity. Considering the Veteran's reports of noise exposure during service, the examiner opined that "it is at least as likely as not that the [V]eteran's current hearing loss and tinnitus is related to military service." The report of the June 2008 VA examination reflects that the Veteran reported noise exposure during military service from working on the flight line, air evacuation buses, and marksmanship training. He said he had some exposure to power tools during civilian life. He reported that he first noticed hearing loss 30 years ago (in 1978) and tinnitus 20 years ago (in 1988). During audiological evaluation, the Veteran's puretone thresholds, in decibels, were as follows (in ISO units): HERTZ 500 1000 2000 3000 4000 RIGHT 15 30 60 60 70 LEFT 15 15 55 65 75 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 80 percent in the left ear. The assessment was right mild to severe sloping sensorineural hearing loss and left moderate to severe sloping sensorineural hearing loss. The examiner, a clinical audiologist, noted that there was no evidence of hearing loss or tinnitus in the service medical records and that the Veteran reported that the onset of hearing loss and tinnitus was years after his military service. Based on a review of the claims file, the clinical findings, and the Veteran's assertions, the examiner opined that "it is less than likely that" the hearing loss and tinnitus are related to military noise exposure. The Board notes that the results of the March 2008 and June 2008 audiology evaluations indicate that the Veteran's hearing loss meets the VA's definition of a disability under 38 C.F.R. § 3.385. The remaining question is whether his current bilateral hearing loss and tinnitus were incurred in or are otherwise related to noise exposure during service. The Veteran's DD 214 reflects that his primary specialty was an application administrative specialist (PAFSC 70230). The Board notes that the Veteran's April 1964 initial flight status examination report indicates that his rating or specialty was loadmaster, which is consistent with the Veteran's statements that he worked in the flight line and loaded and unloaded passengers and equipment. The reports of medical history dated in April 1964 and November 1966 indicate that his usual occupation was an administrative clerk or specialist. Resolving the benefit of the doubt in the Veteran's favor, the Board finds that to the extent the Veteran's duties involved working on the flight line, it is "highly probable" that he was exposed to hazardous noise during service. See VBA Fast Letter 10-35 (Sept. 2, 2010). In this case, 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"). The Board points out that there is no dispute that Veteran is competent to report symptoms of hearing loss and tinnitus because this requires only personal knowledge as it comes to him through his own senses. Layno v. Brown, 6 Vet. App. 465, 470 (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007) ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination. Here, the Veteran's statements regarding the onset of his hearing loss and tinnitus have been inconsistent. In an October 2008 statement, he said that he began noticing that he was missing parts of conversations when he exited the military; however, during the June 2008 VA examination, he said he first noticed hearing loss 30 years ago (in 1978) and tinnitus 20 years ago (in 1988). Furthermore, his statements that he first began noticing hearing loss and tinnitus when exiting military service is inconsistent with the contemporaneous medical record. The Veteran's ears and hearing were normal when he separated from service. Significantly, he denied having hearing loss or any ear trouble at his separation examination. The Board finds the contemporaneous medical evidence much more probative than the Veteran's assertions made years later in the course of filing a claim for compensation benefits. The Board notes that the Veteran submitted several lay statements from friends who have known him since his military service. (See October 2008 statements from G.L., G.L., G.O., and G.M). These individuals generally state they noticed that the Veteran had difficulty hearing when he returned from military service and that his hearing has progressively worsened over the years. As a layperson, each of these individuals is competent to report that which they have personally observed, including the Veteran's difficulty hearing conversations. However, the probative value of these statements is limited by the fact that the Veteran's own statements as to the onset of his hearing loss are inconsistent and the fact that the contemporaneous medical evidence conflicts with the assertion that hearing loss and tinnitus existed when the Veteran exited military service. In addition, the Board notes that the first medical record documenting a bilateral hearing loss disability and tinnitus is the March 2008 private audiology report - over 40 years since active service. The passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board stresses that the present case involves not simply a lack of clinical evidence, but normal findings at separation and a time gap of four decades. For these reasons, the Board finds the Veteran's statements regarding the onset of his hearing loss and tinnitus and continuity of symptomatology are not credible and lack probative value. The only remaining issue is whether there is a nexus between the Veteran's current bilateral hearing loss disability and tinnitus, and his in-service noise exposure. See 38 C.F.R. § 3.303(d). In this regard, the Board acknowledges that competent, yet conflicting, medical evidence has been presented with respect to this question. As noted above, it is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board, however, may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App 171 (1991). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993). In this case, the Board finds the VA examiner's opinion that the Veteran's hearing loss and tinnitus is not related to hazardous noise exposure during service is more probative than the private audiologist's opinion to the contrary. The Board finds the VA examiner's opinion is highly probative as it was based on a detailed review of the Veteran's medical history and clinical findings, and supported by medical rationale. Furthermore, the VA examiner had access to and reviewed the entire claims file, including audiological evaluations at entrance and separation from service. Consequently, this opinion is especially probative. On the other hand, the private audiologist's opinion, while competent, has less probative value. The audiologist did not review the Veteran's service treatment records and did not address the normal findings at separation or the fact that the Veteran denied having hearing loss and tinnitus. While the audiologist indicated that the pattern of hearing loss was consistent with noise induced hearing loss, he did not provide an explanation for the delayed onset. For the foregoing reasons, the preponderance of the evidence is against the claims for service connection for a bilateral hearing loss disability and tinnitus. The benefit-of-the-doubt doctrine is therefore not for application, and the claims must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER Service connection for a bilateral hearing loss disability is denied. Service connection for tinnitus is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs