Citation Nr: 1237180 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 10-22 020 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran had active service from December 1965 to December 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal of a July 2009 rating decision from the Wichita, Kansas Regional Office (RO) of the Department of Veterans Affairs (VA). Previously, the Veteran requested a hearing before a Decision Review Officer at the RO. However, in correspondence received in August 2010, the Veteran cancelled his hearing request. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. A review of the documents in the electronic file reveals that they are either substantively duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. The Veteran does not have right ear hearing loss to an extent recognized as a disability for VA compensation purposes. 2. Any current left ear hearing loss disability or tinnitus is unrelated to service or to a disease or injury of service origin. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral hearing loss disability have not been met or approximated. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2011). 2. The criteria for service connection for tinnitus have not been met or approximated. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), 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. 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. 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). 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). In this case, in a March 2009 letter issued prior to a decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claims, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. This letter advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. As this letter was sent prior to the July 2009 adjudication of the claims, the Board finds that the duty to notify was satisfied. The Board also finds the Veteran has been afforded adequate assistance in response to his claims. In April 2009, the Veteran stated that he had never seen a doctor for treatment for hearing loss or tinnitus. The Veteran's service treatment records (STRs) are on file. In May 2009, the Veteran was afforded a VA examination in connection with these claims. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claims. In sum, the Board is satisfied that any procedural errors in the RO's development and consideration of the claim were insignificant and non prejudicial to the Veteran. Accordingly, the Board will address the merits of the claims. Law and Regulations-Service Connection 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. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical 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) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. 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, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that the veteran still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). 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). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when 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); (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); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Bilateral Hearing Loss and Tinnitus For VA purposes, hearing impairment is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 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 (2012). Prior to a recitation of the evidence in this case, it should be noted that before November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). Therefore, in order to facilitate data comparison, the ASA standards (in parentheses) noted have been converted to ISO-ANSI standards. Service personnel records show that the Veteran's Military Occupational Specialty was helicopter mechanic. The Veteran's service entry audiogram from August 1964 reflects pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT (5) 20 (5) 15 (0) 10 -- (0) 5 LEFT (10) 25 (10) 20 (0) 10 -- (35) 40 The Veteran's October 1967 service separation examination report reflects pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT (15) 30 (15) 25 (15) 25 -- (15) 20 LEFT (15) 30 (15) 25 (15) 25 -- (15) 20 The Veteran indicated on his October 1967 Report of Medical History that he did not suffer from hearing loss. In April 2009, the Veteran remarked that when he was on active duty, a M-14 was shot close to his left ear. He believed that shot caused his current loss of hearing. He also remarked that his tinnitus began in 1968. He added that he had never been treated by a doctor for hearing loss. On VA examination in May 2009, the Veteran informed the examiner that he was subjected to noise as a crew chief while on active duty. The Veteran related that while he was in Vietnam, an M-14 was fired in close proximity to his left ear when he was in a truck. He stated that he was not provided with hearing protection during military service. The Veteran remarked that post service, he had many jobs working on airplanes and driving trucks. He stated that he wore hearing protection as required during his post-service work. The examiner recorded the Veteran's report of experiencing tinnitus that began in 1968. It was noted that the Veteran's tinnitus was constant. The report also reflects that the Veteran's hearing loss and tinnitus used to bother him, but as time went by, he had become accustomed to it. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 AVG RIGHT 0 5 20 35 35 34 LEFT 0 10 35 60 65 43 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 100 percent in the left ear. The examiner indicated that the Veteran's speech recognition scores were excellent bilaterally. The examiner also indicated that the Veteran's symptoms of hearing loss had no significant effects on his occupation and daily activities. After reviewing the treatment records, the audiologist opined that the Veteran's claimed hearing loss and tinnitus were not caused by or a result of his military noise exposure. The audiologist supported her opinion by observing that the Veteran's hearing sensitivity on enlisting was normal except for a milt hearing loss at 4000 Hertz in the left ear. She commented that there was no medical documentation of the Veteran's asserted rifle incident, but she also indicated that the Veteran said he did not receive medical care for an ear problem during military service. She noted that the Veteran's hearing was documented to be within normal limits bilaterally at the time of his discharge, and she additionally noted that the Veteran denied experiencing hearing loss on his separation examination. Concerning the claim for service connection for a right ear hearing loss disability, the Board notes that the interpreted pure tone thresholds as recorded by the May 2009 VA audiologist for the Veteran's right ear do not meet the numerical standards enumerated by 38 C.F.R. § 3.385 (2012). As such, the Veteran does not have a right ear hearing loss disability for VA benefit purposes. Without a diagnosis of a current right ear hearing loss disability that meets the standards of 38 C.F.R. § 3.385, service connection cannot be granted for a right ear hearing loss disability. Concerning the claim for service connection for tinnitus and for a left ear hearing loss disability, the interpreted pure tone thresholds as recorded by the May 2009 VA audiologist for the Veteran's left ear meet the numerical standards enumerated by 38 C.F.R. § 3.385 (2012). As such, the Veteran does have a left ear hearing loss disability for VA benefit purposes. Additionally, the May 2009 VA examiner provided a diagnosis of tinnitus. However, there is no competent and credible evidence of a link between the left ear hearing loss disability and tinnitus and the Veteran's service. The May 2009 VA examiner specifically opined that the Veteran's hearing loss and tinnitus were not caused by or a result of the Veteran's time in the military. The Board finds the opinion of the May 2009 VA examiner to be persuasive, as the examiner was a trained audiologist and supported her given opinion by citing from the service treatment records and the Veteran's own reported history. No other competent medical evidence has been submitted suggesting such a nexus between this specific Veteran's left ear hearing loss disability, tinnitus, and his service. The Board has carefully considered the Veteran's assertions and finds that the Veteran is competent to observe decreased hearing and ringing in his ears, as those are symptoms capable of lay observation. However, the Veteran's account has been contradictory. Although he presently asserts that he has experienced hearing loss and tinnitus since a M-16 was fired near his left ear while on active duty, the Veteran indicated on his Report of Medical History completed in October 1967 at the conclusion of his service that he did not experience ear trouble, running ears, or hearing loss. Due to this inconsistency, the Board finds the Veteran's remarks to not be credible. Additionally, the available evidence does not show that the Veteran has ever sought medical treatment for hearing loss or for tinnitus. The Federal Circuit has determined that a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. See generally Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). For these reasons, the Board finds that the opinion of the May 2009 VA audiologist outweighs the Veteran's assertions. In sum, as the Veteran's right ear hearing loss does not meet the numerical standards enumerated by 38 C.F.R. § 3.385, and the competent and credible evidence weighs against the finding of a nexus between the Veteran's left ear hearing loss disability and tinnitus and his active service, service connection for these disabilities is not warranted. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for a bilateral hearing loss disability is denied. Service connection for tinnitus is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs