Citation Nr: 1237606 Decision Date: 11/02/12 Archive Date: 11/09/12 DOCKET NO. 10-17 608 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral 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 T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran had active duty service from July 1954 to June 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied the benefits sought on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. A preponderance of the evidence is against a finding that the Veteran's current bilateral hearing impairment as defined by 38 C.F.R. § 3.385 is related to his period of active military service, to include acoustic trauma therein, and against a finding that hearing loss, as an organic disease of the nervous system, was manifested to a compensable degree within one year after separation from service. 2. A preponderance of the evidence is against a finding that tinnitus is due to any incident or event which arose during active military service, to include any acoustic trauma sustained therein, or that tinnitus as an organic disease of the nervous system was manifested to a compensable degree within one year after separation from active service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in or aggravated by service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1131, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2011). 2. Tinnitus was not incurred in or aggravated by service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1131, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection The Veteran contends that he has hearing loss and tinnitus that are related to exposure to acoustic trauma during service. Specifically he asserts that his exposure to loud noise while performing his duties as a radio operator during service caused his hearing problems. Service connection may be established for a disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303, 3.304 (2011). Disability which is proximately due to or the result of a disease or injury incurred in or aggravated by service will also be service-connected. 38 C.F.R. § 3.310 (2011). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if pre-existing such service, was aggravated by service. That may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a) (2011). Service connection may also be warranted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2011). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2011). Certain chronic diseases, including sensorineural hearing loss or an organic disease of the nervous system, may be presumed to have been incurred in service if manifest to a compensable degree within one year from discharge from service. 38 U.S.C.A. §§ 1112, 1113, 1137 (West 2002); 38 C.F.R. § 3.309(a) (2011). Service connection requires (1) evidence of a current disability, (2) evidence of in-service incurrence or aggravation of an injury or disease, and (3) evidence of a nexus between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). For 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 at 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, and 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). VA regulations, however, do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). 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). Lay persons can also provide an eye-witness account of an individual's visible symptoms. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See 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"). In this case, the medical evidence of record clearly shows that the Veteran currently suffers from a bilateral hearing impairment as defined by VA regulation. On VA examination in July 2009 the puretone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz in the right ear were 65, 55, 65, and 65, and 80, 60, 70, and 75, in the left ear. Speech recognition scores with the Maryland CNC Test were 88 percent for the right ear and 80 percent for the left ear. There is no indication that the audiometric results reported in the July 2009 VA audiological examination report are unreliable or otherwise inadequate. Thus, the above evidence establishes a diagnosis of a current bilateral hearing impairment as defined by 38 C.F.R. § 3.385. The examiner diagnosed moderate mixed hearing loss in the right ear, and moderately severe mixed hearing loss in the left ear. In addition, the evidence also shows current tinnitus. Specifically, the Veteran reported at the audiological examination that he had recurrent intermittent bilateral tinnitus. The audiologist appeared to have found the Veteran's account of current tinnitus credible. Moreover, the Veteran is considered competent to report the presence of tinnitus, and there is no indication from the record that his account of current tinnitus is not credible. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). Thus, the presence of current tinnitus is also established. Having determined that the Veteran currently has diagnoses of tinnitus and bilateral hearing loss for VA disability purposes, the remaining question before the Board is whether there is nexus between the currently diagnosed tinnitus and hearing loss and his service. Brock v. Brown, 10 Vet. App. 155 (1997); Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459 (1996). The Board initially observes that the Veteran's DD Form 214 and service records identify his military occupational specialty (MOS) as a radio operator. He has competently reported being exposed to loud noise from radio equipment during his period of service. The Board finds that the Veteran's competent lay account of having been exposed to military noise is consistent with the circumstances of his service, and is, therefore, deemed credible. However, the preponderance of the evidence weighs against a finding that the Veteran's current hearing loss and tinnitus are related in any way to his period of active military service, to include in-service noise exposure. Initially, the Board notes that the Veteran's service treatment records are incomplete. However, it is notable that in a July 2009 statement, the Veteran denied having sought treatment for hearing problems in service. It is additionally observed that the May 1956 separation examination report, which is of record, shows that the Veteran scored 15/15, bilaterally, on whisper voice tests. No complaints of hearing problems were noted. Additionally, examination of the Veteran's ears and neurological system were normal. Although the Veteran's complete service medical records are not in the claims file, there is no evidence contemporaneous with service from any other source to affirmatively show that bilateral hearing loss or tinnitus was present during service or within one year following separation from service. Nor does the evidence of record show that there were any complaints, diagnoses, or treatment for hearing loss or tinnitus within one year after the Veteran's separation from service. Thus the Board finds that chronicity of hearing loss and tinnitus in service is not established in this case. 38 C.F.R. § 3.303(b) (2011); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). To the extent that the Veteran claims continuity of symptomatology of hearing problems after the claimed in-service excessive noise exposure and after discharge from service, the Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, can be competent, despite the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). The Board has weighed statements made by the Veteran as to continuity of symptoms since service and finds the current recollections and statements made in connection with the claims for benefits to be of lesser probative value, as the current assertions are inconsistent with other statements from the Veteran and clinical documentation contemporaneous to, and after, service. In this regard, the Board notes that while the Veteran asserts that his hearing problems are due to noise exposure during his period of active military service, he has not consistently alleged a continuity of symptomatology since service with respect to tinnitus. For example, at the July 2009 VA audiological examination, the Veteran competently reported onset of his tinnitus for many years, but he could recall an acoustic event giving rise to the condition, to include an event in service. However, in the substantive appeal it was indicated that he had tinnitus ever since he was in the military. Moreover, the separation examination found the ears and neurological system were normal and the Veteran signed a statement approximately two weeks later that there was no change in his condition. The Board finds the lay and medical evidence closer in time to his period of service credible rather than the Veteran's more recent assertion. After service, the initial documentation of an auditory disorder included in the record is dated in 2009, approximately 53 years after separation from active service, well beyond the one-year presumptive period for manifestation of hearing loss as a chronic disease or tinnitus as an organic disease of the nervous system, the Board finds that service connection cannot be established on a presumptive basis. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2011). Additionally, in view of the lengthy period without evidence of treatment or complaints of hearing loss or tinnitus, the Board finds that the evidence is against a finding of a continuity of treatment, which weighs heavily against the claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Accordingly, the evidence does not show, nor does the Veteran claim, that his hearing problems have been symptomatic since service. Therefore, the Board finds that continuity of symptomatology has not been established, either through the competent evidence or through the Veteran's statements. As for service connection based on the initial diagnoses after service, where the determinative issue involves a question of a medical nexus or medical causation, a lay assertion of medical causation is not competent evidence. Grottveit v. Brown, 5 Vet. App. 91 (1993). Competent medical evidence is required to substantiate the claim. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical opinion. 38 C.F.R. § 3.159 (2011). The Veteran, as a lay person, is not competent to report that his hearing loss and tinnitus, first shown after service, are related to service, including excessive noise exposure therein. Here, the competent medical opinion evidence of record does not support a finding that there is a nexus relationship between the Veteran's claimed hearing loss and tinnitus and service. As stated above, the Veteran was provided with a VA audiological examination in July 2009 in connection with his claims. At that time, the examining audiologist concluded that it is less likely as not that the Veteran's bilateral hearing loss and tinnitus were caused by or a result of in-service noise exposure, based on his examination and interview of the Veteran and review of the claims folder, to include the Veteran's discharge examination which was limited to a whispered voice test. The examiner noted that diagnostic testing could not validate normal middle ears. Bone conduction testing supported the presence of a middle ear condition (L>R). The examiner concluded that the Veteran's hearing examination was dominated by a middle ear condition, as opposed to a cochlear hearing loss related to acoustic trauma. The examiner further opined that the Veteran's tinnitus was a symptom associated with the diagnosed mixed loss of hearing. The examiner explained that pursuant to the Veteran's report, his tinnitus was not locked to an acoustic event as the Veteran reported onset of his tinnitus for many years, but he could not recall an acoustic event giving rise to the condition. Accordingly, the examiner opined that more likely than not, the Veteran's tinnitus was related to the medical condition affecting the Veteran's middle ears. The audiologist, unlike the Veteran, has specialized expertise in the area of auditory disorders and is able to render a competent opinion regarding the likelihood that the claimed disorders are related to service. Also, the audiologist's opinion is based on review of the claims folder, and refers to relevant documentation, that is, the Veteran's June 1956 separation examination report. Further, the opinion is the only competent medical opinion of record and is found to be adequate. The examiner reviewed the history, conducted an examination and provided an opinion that was supported by a rationale. While the Veteran is competent to report the onset of his hearing problems, he is not competent to render an opinion regarding their etiology. Moreover, as previously discussed, his report of having experienced a continuity of hearing loss symptomatology since service is not found to be credible. Thus, in summary, the most credible and probative evidence shows that hearing loss and tinnitus manifested more than 1 year after discharge from service and are not otherwise related to active service. For these reasons, the preponderance of the evidence weighs against the award of service connection for either disorder on a direct basis or on a presumptive basis as a chronic disease. Service connection for hearing loss and tinnitus is, therefore, denied. In reaching these conclusions, the Board notes that, under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be given to the claimant in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the Veteran's claims in this case, and that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duty to notify and to assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. § 3.159 (2011); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). Specifically, the Veteran was notified in a letter dated in June 2009. The letter informed him of how to substantiate his claims for service connection. He was also informed of the allocation of responsibilities between himself and VA and of how ratings and effective dates are assigned. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the March 2010 statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The Veteran's complete service treatment records are not available in this case. The RO informed the Veteran by way of an August 2009 letter that his complete service medical records were unavailable and that the Veteran had an opportunity to submit any records in his possession. He was specifically informed that his service treatment records had unsuccessfully been requested from the National Personnel Records Center, that he had 10 days in which to submit his service treatment records, and that the case would be decided on the 10th day. See 38 C.F.R. § 3.159(e) (2011). While the Veteran was not specifically provided with notice that he could submit alternate sources of evidence, such is not prejudicial to him. He was notified in the June 2009 letter that he could submit evidence showing he had hearing loss and tinnitus since service, he completed a NA Form 13055 indicating that he had not been treated in the military, and he provided information concerning noise exposure in service, which the Board found credible. Nevertheless, when service treatment records are missing, there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully whether reasonable doubt exists to resolve in favor of the Veteran. Cuevas v. Principi, 3 Vet. App. 542 (1992); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). Because those records, if they existed, remain absent from the file, the Board's analysis has been undertaken with the heightened obligation in mind. The case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. Russo v. Brown, 9 Vet. App. 46 (1996). Additionally, the Veteran has not identified any additional, outstanding records necessary to decide his pending appeal. VA has obtained an examination with respect to the claims herein decided. The examination is adequate because it was based on a review of the history, a physical examination and as an opinion with supporting rationale was provided. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs