Citation Nr: 1237648 Decision Date: 11/02/12 Archive Date: 11/09/12 DOCKET NO. 12-22 758 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from January 1952 to January 1954. He had service in the Republic of Korea, where his most significant assignment was to a heavy automotive maintenance company. This matter came to the Board of Veterans' Appeals (Board) on appeal from an January 2009 rating decision by the RO. 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. The Veteran's sensorineural hearing loss disability was first manifested many years after service, and the preponderance of the competent evidence of record is against a finding that it is related to service. 2. The Veteran's tinnitus was first manifested many years after service, and the preponderance of the competent evidence of record is against a finding that it is related to service. CONCLUSIONS OF LAW 1. A sensorineural hearing loss disability is not the result of disease or injury incurred in or aggravated by service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.385 (2012). 2. Tinnitus is not the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist Prior to consideration of the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory duty to assist him in the development of the issues of entitlement to service connection for a hearing loss disability and tinnitus. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. After reviewing the record, the Board finds that VA has met that duty. In July 2008, VA received the Veteran's claims, and there is no issue as to providing an appropriate application form or completeness of the application for service connection or for an increased rating. Following the receipt of that application, VA notified the Veteran of the information and evidence necessary to substantiate and complete his claims, including the evidence to be provided by him, and notice of the evidence VA would attempt to obtain. VA informed him of the criteria for service connection, as well as that for rating service-connected disabilities and assigning effective dates, should service connection be granted. Following the notice to the Veteran, VA fulfilled its duty to assist him in obtaining identified and available evidence necessary to substantiate his claim. That duty requires VA to make reasonable efforts to obtain relevant records (including private records) that the Veteran adequately identifies to VA and authorizes VA to obtain. 38 U.S.C.A. § 5103A(b)(1). However, the duty to assist is not a one-way street. Olsen v. Principi, 3 Vet. App. 480 (1992). It is the Veteran's responsibility to present and support his claim. 38 U.S.C.A. § 5103. In this case, VA obtained or ensured the presence of the Veteran's service treatment records; records reflecting his VA treatment from October 2005 to April 2011; and an examination report from J. D., M.S., CCC-A. In October 2008 and July 2012, VA also had the Veteran examined to determine the nature and etiology of any hearing loss disability and/or tinnitus found to be present. The VA examination reports show that the examiners reviewed the Veteran's medical history, interviewed and examined the Veteran, documented his medical conditions, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. Therefore, the Board concludes that the VA examinations are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2009); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Finally, VA offered the Veteran an opportunity to present additional evidence and argument at a hearing on appeal. However, to date, he has declined to accept that offer. In September 2008 and February, 2010, the National Personnel Records Center reported that the Veteran's service treatment records had been destroyed in a July 1973 fire at the Center. However, as noted above, VA has obtained the Veteran's service treatment records and associated them with the claims folder. In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal. He has not identified any outstanding evidence which could support either of his claims; and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to the merits of the appeal. The Applicable Law and Regulations Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1110. Generally, the evidence must show (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992). 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 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. 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. When the disease identity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. For certain organic neurologic disorders, such as a sensorineural hearing loss disability, service connection may be presumed when such disability is shown to a degree of 10 percent or more within one year of the veteran's discharge from active duty. 38 U.S.C.A. § 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Such a presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307. The foregoing law and regulations notwithstanding, 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. 38 C.F.R. § 3.303(d). The Factual Background The report of the Veteran's November 1951 service entrance examination shows that his ears and eardrums were normal. His hearing for the whispered voice was 15/15, bilaterally. The Veteran's service treatment records are negative for any complaints or clinical findings of a hearing loss disability or tinnitus. They do show treatment for multiple disorders, including pharyngitis, pes planus, and an injury to the left middle finger while participating in sports. The report of the Veteran's January 1954 service separation examination shows that his ears and eardrums were normal. His hearing for the whispered and spoken voices was 15/15, bilaterally. In January 1954, the Veteran filed a claim of entitlement to service connection for a nervous disorder and flat feet. Those claims were denied by the RO in March 1954. During VA outpatient treatment in January 2008, it was noted that the Veteran had a hearing loss disability and chronic tinnitus. In October 2008, the Veteran was examined to determine the nature and etiology of any hearing loss disability found to be present. In addition to his proximity to explosions, he reported that in service, he worked in an extremely noisy environment. Following service, it was noted that the Veteran had tested guns and ammunition for 20 years at the Lake City Army Ammunition Plant. It was also noted that he had done some hunting. In addition, the Veteran stated that sometime after the age of 50, he had begun to experience ringing in his ears. During the VA examination, audiologic testing revealed the following pure tone thresholds at the indicated hertz levels: HERTZ 500 1000 2000 3000 4000 RIGHT 35 35 55 70 70 LEFT 45 50 65 80 80 Speech audiometry revealed speech recognition ability of 72 percent in the right ear and 56 percent in the left ear. Following the VA examination, the diagnoses were severe bilateral sensorineural hearing loss disability and tinnitus. The examiner noted that the Veteran's levels of hearing loss were consistent with noise-induced hearing loss and that he had experienced extreme noise levels in service. However, the examiner also noted that the Veteran's post-service occupations included testing army ammunition and guns, welding, and farming. Therefore, the examiner could not determine the specific cause of the Veteran's hearing loss without resorting to mere speculation. The examiner did opine that it was at least as likely as not that the Veteran's tinnitus was a symptom of his hearing loss disability. VA treatment records, such as those dated in January, February, and August 2010, continued to show that the Veteran had a hearing loss disability and chronic tinnitus. In February 2012, the Veteran was examined by J. D., M.S. CCC-A. The examiner stated that she did not have the Veteran's records to review but noted that he had a history of military noise exposure as a vehicle mechanic and welder. She also noted that he had been in the vicinity of an explosion in service. Audiologic testing revealed the following pure tone thresholds at the indicated hertz levels: HERTZ 500 1000 2000 3000 4000 RIGHT 55 60 80 90 95 LEFT 65 65 75 85 95 Speech audiometry revealed speech recognition ability of 16 percent, bilaterally. Following the examination, the examiner opined that it was more likely than not that the Veteran's hearing loss disability and tinnitus were due to his noise exposure in service and that they worsened, thereafter. The examiner based her opinion on the Veteran's case history and the configuration of the hearing loss. In July 2012, the Veteran was reexamined by VA to determine the nature and etiology of any hearing loss disability found to be present. Audiologic testing revealed the following pure tone thresholds at the indicated hertz levels: HERTZ 500 1000 2000 3000 4000 RIGHT 40 45 70 75 75 LEFT 50 60 60 70 70 Speech audiometry revealed speech recognition ability of 60 percent in the right ear and 54 percent in the left ear. Following a review of the Veteran's claims file and the examination, the VA examiner's diagnoses were bilateral sensorineural hearing loss disability and tinnitus. The examiner noted that the Veteran's exposure to high risk noise in the military involved his work as a mechanic, as well as an incident in Korea, when he found himself near the site of a bomb explosion. He also cited minor explosions in his work area. The Veteran stated that in all these incidents, he did not sustain an injury. The VA examiner opined that the Veteran's current hearing status was dominated, more likely than not, by the effects of aging as seen in his low frequency hearing impairment and his poor word recognition scores, as well as his post-military noise exposure, both occupationally and recreationally. He stated that he did not recall having a hearing loss disability at the time of his separation from service but recalled that it had been aggravated during the last 30 years. As to the Veteran's tinnitus, the examiner noted the Veteran's statement that it had been present for 15 to 20 years. He did not relate it to an acoustic event. The examiner opined that it was less likely than not that the Veteran's tinnitus was associated with his hearing loss, as the hearing loss had been present far longer than the tinnitus. The examiner also found it less likely than not that the Veteran's tinnitus was due to his inservice noise exposure, due to the fairly recent onset of tinnitus. Analysis The Veteran contends that his hearing loss disability and tinnitus are primarily the result of noise exposure in service during the Korean Conflict. He notes that he was in the vicinity of several explosions which damaged his hearing. He states that he continued to experience hearing loss disability and tinnitus since that time; and therefore, he maintains that service connection is warranted. However, after carefully considering the Veteran's claims in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against those claims. Accordingly, service connection for hearing loss disability and tinnitus is not warranted, and the appeal will be denied. The Board acknowledges that the Veteran is competent to give testimony about what he experienced in and after service. For example, he is competent to report that he first noticed difficulty hearing and tinnitus in service. He is also competent to report that it has been present since that time. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). As a lay person, however, he is, generally, not qualified to render opinions which require medical expertise, such as the diagnosis of those symptoms or the cause of a particular disability. 38 C.F.R. § 3.159(a); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Therefore, his opinion, without more, is not dispositive, unless the particular disorders at issue are ones which are amenable to lay expertise. 38 C.F.R. § 3.159(a). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence if contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In deciding this appeal, the Board must weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11. The Board is mindful that it cannot make its own independent medical determination, and that there must be plausible reasons for favoring one medical opinion over another. Evans v. West, 12 Vet. App. 22, 31 (1998). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings. The probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). In this regard, contemporaneous evidence has greater probative weight than a history reported by the Veteran. Curry v. Brown, 7 Vet. App. 59, 68 (1994). However, medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). A review of the record shows that the Veteran has established diagnoses of a hearing loss disability for VA compensation purposes, as well as tinnitus. The salient question, then, is whether there is a nexus between either or both of those disorders and his claimed noise exposure in service. For several reasons, the Board finds the preponderance of the evidence against such a nexus. First, even if one assumes that the Veteran had extreme noise exposure in service, his service treatment records, as well as the reports of his service entrance and separation examinations, are negative for any complaints or clinical findings of hearing loss disability or tinnitus. It is reasonable to expect that had he experienced a hearing loss or tinnitus in service, he would have sought treatment for such disorders. After all, he had sought treatment for multiple other disorders, including pharyngitis, pes planus, and an injury to his left middle finger. That he did not seek treatment for a hearing loss disability or tinnitus militates against his claim. Second, the preponderance of the evidence is against the Veteran's assertion that he has had hearing loss and tinnitus since service. Those disorders were first manifested during VA outpatient treatment in January 2008. That was more than fifty years after his separation from active duty. While the Veteran has reported a 15 to 20 year history of tinnitus, that is still many years after service. Such a lengthy time frame without any clinical evidence to support the assertion of a continuity of symptomatology does not provide support for the Veteran's contentions that he experienced continuous hearing loss and tinnitus since service. Indeed, it further militates against his claims. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming the 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). Third, the Board notes that the Veteran did not file his claim of entitlement to service connection for a hearing loss disability or tinnitus until July 2008, many years after his separation from service. It is reasonable to expect that had the Veteran been experiencing chronic hearing problems and tinnitus since service, he would have filed an earlier claim for service connection. He certainly knew how to do so, given the fact that he filed a claim of entitlement to service connection for other disorders in January 1954, the month he was separated from service. That he did not file a claim prior to July 2008 with respect to service connection for a hearing loss disability and tinnitus is probative evidence against the claim. Despite the foregoing discussion, that does not end the inquiry. A nexus may still be established by other evidence, such as a competent medical opinion. During the course of the appeal, the Veteran was examined on three occasions to determine the nature and etiology of his hearing loss disability and tinnitus. The October 2008 examiner recognized the Veteran's noise exposure in service; but given the evidence of postservice noise exposure, she was unable to determine the etiology of the Veteran's hearing loss and tinnitus. As such, her opinion effectively constitutes non-evidence and has no probative value in deciding the claim. Obert supra at 33. In February 2012, following her audiologic examination, J. D., M.S. CCC-A, opined that it was more likely than not that the Veteran's hearing loss disability and tinnitus were due to his noise exposure in service and that they worsened, thereafter. The examiner based her opinion on the Veteran's case history and the configuration of the hearing loss. In July 2012, following a second VA audiologic examination, a different VA examiner opined that the Veteran's current hearing status was dominated, more likely than not, by the effects of aging as seen in his low frequency hearing impairment and his poor word recognition scores, as well as his post-military noise exposure, both occupationally and recreationally. As to the Veteran's tinnitus, the examiner opined that it was less likely than not that the Veteran's tinnitus was associated with his hearing loss, as the hearing loss had been present far longer than the tinnitus. The examiner also found it less likely than not that the Veteran's tinnitus was due to his inservice noise exposure, due to the fairly recent onset of tinnitus. At first blush, the opinions of J. D. and the VA examiner appear to be offsetting. Both interviewed and examined the Veteran and provided the rationale for their conclusions. However, J. D. based the history of the Veteran's hearing loss disability and tinnitus on that related by the Veteran. Unlike J. D., the VA examiner reviewed the Veteran's claims file and based the history on documented evidence. Thus, the VA examination and associated opinion were more full and complete than those provided by J. D. As such, the VA examination has greater probative value and constitutes the fourth reason that the Board finds the preponderance of the evidence against the Veteran's claims. Inasmuch as there is no evidence of hearing loss disability or tinnitus in service, and because the preponderance of the evidence is against a finding of a nexus to service, the Veteran does not meet the criteria for service connection. Therefore, service connection for hearing loss disability or tinnitus is not warranted, and the appeal is denied. In arriving at this decision, the Board has considered the doctrine of reasonable doubt. However, that doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves the claim. In this case, the preponderance of the evidence is against the Veteran's claims. Therefore, the doctrine of reasonable doubt is not applicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). ORDER Entitlement to service connection for a hearing loss disability is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs