Citation Nr: 1205355 Decision Date: 02/13/12 Archive Date: 02/23/12 DOCKET NO. 10-09 522 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida 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 David Gratz, Counsel INTRODUCTION The Veteran served on active duty from July 1974 to June 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. FINDINGS OF FACT 1. Bilateral hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident in service, and did not manifest within one year of the Veteran's discharge from service. 2. Tinnitus is not shown to be causally or etiologically related to any disease, injury, or incident in service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in or aggravated by the Veteran's active duty military service, nor may it be presumed to have been incurred in or aggravated by such service. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2011). 2. Tinnitus was not incurred in or aggravated by the Veteran's active duty military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). Proper 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, an October 2008 letter, sent prior to initial unfavorable AOJ decision issued in January 2009, advised the Veteran of the evidence and information necessary to substantiate his service connection claims as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, that letter informed the Veteran of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Relevant to the duty to assist, the Veteran's service treatment records, as well as VA examination records and private treatment records, have been obtained and considered. In this regard, neither the Veteran nor his representative has identified any outstanding treatment records that have not been obtained. Additionally, the RO contacted the Social Security Administration (SSA), which informed VA in February 2009 that no Title II or Title XVI data for the Veteran was found. Golz v. Shinseki, 590 F.3d 1317, 1323 (2010). Therefore, the Board finds that VA has satisfied its duty to assist in obtaining all available records. Additionally, the Veteran was afforded a VA examination in December 2008 in order to adjudicate his service connection claims. In this regard, the Board notes that the December 2008 VA examiner offered etiological opinions as to each claimed disorder and based her conclusions on an interview with the Veteran, a review of the record, and a full examination. Moreover, she offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). As such, the Board finds that the opinions proffered by the December 2008 VA examiner are sufficient to assist VA in deciding the Veteran's claims. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Analysis The Veteran seeks entitlement to service connection for bilateral hearing loss and tinnitus. He alleges in his September 2008 claim that he was exposed to extreme acoustic trauma during service in connection with his duties working in the artillery. Therefore, he claims that service connection is warranted for such disorders. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in- service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. 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 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. The Court has held that service connection can be granted for hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for hearing loss which first met VA's definition of disability after service. Hensley, supra, at 159. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's service treatment records include no complaints, diagnoses, or treatment of hearing loss. At his entrance examination in July 1974, an audiometer evaluation revealed pure tone thresholds, in decibels, were as follows: July 1974 HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 x 30 LEFT 20 10 20 x 35 The Board notes that the Veteran's service treatment records include three index cards marked "AUDIOGRAM." Because the first such card is dated July 1974 and noted to have been administered in Coral Gables, Florida, while the others include no place or date, and because the third test card is labeled "Test (3)," the Board finds that in-service clinicians reflected the results of these three audiograms in their audiometric findings in the Veteran's July 1974 Report of Medical Examination, as described in the chart above. At his separation examination in June 1976, an audiometer evaluation revealed pure tone thresholds, in decibels, were as follows: June 1976 HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 10 x 30 LEFT 10 5 10 x 35 As indicated previously, the Veteran claims that he was exposed to extreme acoustic trauma while working in the artillery during his military service. Despite the fact that the record is void of documentation of complaints or treatment for hearing difficulty or tinnitus during service, the Veteran is competent to describe the nature and extent of his in-service noise exposure. See 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). After service, a clinician administered a Beltone Audiogram to the Veteran in September 2008. The clinician found that the Veteran had average pure-tone thresholds of 58 decibels in his right ear, and 60 decibels in his left ear. VA provided the Veteran with a compensation and pension (C&P) audio examination in December 2008. The examiner reviewed the claims file. The Veteran reported having been exposed to noise in service from large caliber weapons fire and rifle fire. The Veteran stated that he usually wore hearing protection in service. The Veteran also reported a positive history of civilian occupational noise exposure as a truck driver for 30 years, without hearing protection. The Veteran asserted that his tinnitus began with gradual onset during military service. The December 2008 C&P examiner's evaluation revealed that pure tone thresholds, in decibels, were as follows: Dec. 2008 HERTZ 500 1000 2000 3000 4000 RIGHT 20 40 80 85 80 LEFT 25 50 80 95 90 Speech recognition was 72 percent in the right ear and 68 percent in the left ear. The examiner diagnosed normal falling to severe sensorineural hearing loss in the right ear and normal falling to profound sensorineural hearing loss in the left ear. Therefore, the Board finds that the contemporary medical evidence demonstrates a current bilateral hearing loss disability as defined by 38 C.F.R. § 3.385. The December 2008 VA examiner also noted that the Veteran reported having constant bilateral tinnitus. Tinnitus is a disorder capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002); Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board has initially considered whether presumptive service connection is warranted for the Veteran's bilateral hearing loss. However, the record fails to show that the Veteran manifested bilateral hearing loss to a degree of 10 percent within the one year following his service discharge in July 1976. As such, presumptive service connection is not warranted for bilateral hearing loss. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The Board further finds that direct service connection for bilateral hearing loss and tinnitus is not warranted as the December 2008 VA examiner determined that such disorders were less likely than not the result of acoustic trauma incurred during military service. The examiner explained that her opinion was based on the service treatment record evidence which was negative for hearing loss under VA standards, significant hearing threshold shift, or any complaint or diagnosis of tinnitus, as well as the conceded history of military noise exposure. The examiner further opined that the Veteran's tinnitus is at least as likely as not a symptom associated with his hearing loss. The Board places great probative weight on the December 2008 VA examiner's opinion regarding the etiology of the Veteran's bilateral hearing loss and tinnitus as the examiner considered all of the evidence of record, to include his service treatment records, post-service treatment records, and lay testimony, and conducted a clinical evaluation in rendering her opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Additionally, the Board finds that there is no contrary medical opinion of record. In this regard, the Board notes that the Veteran has contended on his own behalf that his bilateral hearing loss and tinnitus are related to noise exposure during his military service. The Board notes that lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to," and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question regarding the potential relationship between the Veteran's bilateral hearing loss and tinnitus and any instance of his military service to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). While the Veteran is competent to describe his difficulty hearing and complaints of tinnitus, the Board accords his statements regarding the etiology of such disorders little probative value as he is not competent to opine on such complex medical questions. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). Moreover, the Veteran has only offered conclusory statements regarding the relationship between his military service and his current bilateral hearing loss and tinnitus. In contrast, the December 2008 VA examiner took into consideration all the relevant facts described above in providing her opinion. Therefore, the Board accords greater probative weight to the December 2008 VA examiner's etiological opinion. Therefore, the Board finds that the Veteran's contentions regarding the etiology of his bilateral hearing loss and tinnitus, as well as his allegations of continuity of his hearing loss symptomatology, are outweighed by the competent and probative December 2008 VA examiner's findings. In his February 2009 notice of disagreement and March 2010 substantive appeal, the Veteran asserted that "I feel the examiner failed to account for my reported in service noise exposure, which is confirmed by my military occupation. I feel the examiner relied entirely on the lack of the showing of hearing loss and tinnitus in service medical records when rendering his or her opinion and as such the examination report is not adequate for rating purposes." The Veteran proceeded to cite Dalton v. Nicholson, 21 Vet. App. 23 (2007) in support of the proposition that a medical examiner cannot rely on the absence of medical records corroborating that injury to conclude that there is no relationship between my current disability and my military service. The Board finds that the Veteran's legal theory is misapplied in this case because the December 2008 C&P examiner specifically acknowledged "the conceded history of [the Veteran's] military noise exposure" in her etiological opinion. As such, the assertions that the examiner "failed to account for my reported in service noise exposure," or "relied entirely on the lack of the showing of hearing loss and tinnitus in service medical records when rendering his or her opinion," are inapplicable and factually baseless in this case. Unlike in Dalton, supra, the December 2008 examiner did comment on the Veteran's report of in-service injury. Also in his February 2009 notice of disagreement and March 2010 substantive appeal, the Veteran asserted that he is not required to show that hearing loss was present during active military service in order to establish service connection. He cited Godfrey, supra, and Hensley, supra, in support of that proposition. While the Court did hold in those cases that service connection can be granted for hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service, the Veteran has not established said nexus in this case for the reasons discussed above. The Court did not establish an automatic guarantee of service connection for hearing loss and tinnitus in Godfrey, supra, and Hensley, supra, for all cases in which a Veteran was exposed to audiological trauma in service. Moreover, the examiner did not base the conclusion solely on the fact that hearing did not meet 38 C.F.R. § 3.385 at the time of separation. The examiner also reasoned that there was no significant shift in hearing shown in service. This conclusion is not specifically precluded by Hensley. The Veteran also alleged in an October 2008 VA Form 21-4138 that he failed a hearing test in Bamberg, Germany three times in June 1976. Likewise, he asserted at his December 2008 C&P examination that he has experienced tinnitus since his military service. As noted above, the Veteran is competent to make these observations. Layno, supra; Davidson, supra; Charles, supra; Barr, supra; Jandreau, supra. However, the Board finds that the credibility of these allegations is outweighed by the contemporaneous evidence of record and, therefore, the Board accords no probative weight to such contentions. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board may discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); see also Caluza v. Brown, 7 Vet. App. 498 (1995); Curry v. Brown, 7 Vet. App. 59, 68 (1994) (holding that contemporaneous evidence has greater probative value than subsequently reported history). Specifically, the in-service clinician's findings show that the Veteran's hearing loss at separation in June 1976 did not rise to the level of cognizable hearing loss under 38 C.F.R. § 3.385. Accordingly, a chronic disability was not shown in service. Moreover, nowhere on the June 1976 Report of Medical Examination did any clinician note any "failed" hearing test; to the contrary, the clinician found that the Veteran was qualified for separation. The Board finds that this documented contemporaneous evidence outweighs the Veteran's reported recollection. Curry, supra. Similarly, the Board notes that the in-service clinician found that the Veteran's ears and eardrums were normal at his June 1976 Report of Medical Examination at separation, and that this documented contemporaneous evidence outweighs the Veteran's allegation of continuous tinnitus that began in service. Curry, supra. The only abnormalities noted by the examiner at the time of separation were warts and chronic left epididymitis. Although the Veteran's reports that he experienced tinnitus in service that continued thereafter are competent, the service treatment records and particularly the normal separation examination are found to be credible and probative evidence rather than the current statements made many years after service. The Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for bilateral hearing loss and tinnitus. As such, that doctrine is not applicable in the instant appeal, and his claims must be denied. 38 U.S.C.A. § 5107. (CONTINUED ON NEXT PAGE) ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ S. S. Toth Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs