Citation Nr: 1301159 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 09-32 239 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. C. Graham, Counsel INTRODUCTION The Veteran had active service from July 1974 to July 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. While appellate action was pending, the Veteran submitted additional evidence directly to the Board in December 2009. The additional evidence consists of identical letters co-signed by the Veteran and his mother, in one instance, and co-signed by the Veteran and his brother, in the other, stating that the Veteran was exposed to noise from machine gun fire in service and complained of ringing in the ears during that time and thereafter. Pursuant to 38 C.F.R. § 20.1304(c), a claimant must submit a written waiver of evidence submitted directly to the Board, or otherwise the new evidence along with the claims file must be referred back to the RO for consideration. However, section 20.1304(c) requires that such evidence must be "pertinent" to the claim. In this case, the Board finds that the December 2009 letters are redundant of evidence already of record and are therefore not "pertinent." As will be explained below, the Veteran has consistently contended, and the Board has conceded, that he was exposed to noise from machine gun fire in service. Further, the Veteran had previously asserted in the record that he has had ringing in the ears since service. See written statement from the Veteran received February 27, 2009. On the key point of the continuity of the Veteran's tinnitus, the newly submitted evidence sheds no new light. Thus, the Board finds that the evidence does not require referral to the RO, nor does it require a waiver signed by the Veteran. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss was first shown many years after his active duty and is not related to noise exposure incurred in such service, nor may it be presumed to have had its onset in his active service. 2. The Veteran's tinnitus was first shown many years after his active duty and is not related to noise exposure incurred in such service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in or aggravated by active service, and sensorineural hearing loss may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2012). 2. Tinnitus was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. The VCAA also requires 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 VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Here, the RO received the Veteran's service connection claims in July 2007. In August 2007, the RO sent to him a letter notifying him of the evidence required to substantiate those claims, the information already in VA's possession, the evidence that VA would obtain on his behalf, as well as the evidence that he was responsible for providing to VA, to include any records not in the possession of a Federal agency. The letter also included the notice elements required by Dingess for how VA determines disability ratings and effective dates. The Veteran has not disputed the contents of the VCAA notice in this case. Further, the Board finds that the August 2007 notice letter complies with the requirements of 38 U.S.C.A. § 5103(a), and afforded the Veteran a meaningful opportunity to participate in the development of his service connection claims. Thus, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied. Regarding the duty to assist, the Board also finds that VA has fulfilled its obligation to assist the Veteran. All available evidence pertaining to the Veteran's claims has been obtained. The evidence includes his service treatment records (STRs), treatment records from the Texas Department of Criminal Justice (TDCJ), June 2008 VA examination reports and a medical opinion, and lay statements in support of his claims. A review of the Veteran's Virtual VA reveals no additional, pertinent evidence. The Veteran elected to not have a hearing in his case. In June 2008, the Veteran was afforded VA ear diseases and audiology examinations and a medical opinion was prepared by a VA audiologist. The June 2008 VA audiologist reviewed the Veteran's claims folder, conducted the appropriate hearing tests, recorded the Veteran's subjective complaints related to his disability as well as the Veteran's account of his in-service and post-service noise exposure, and provided an opinion as to the etiology of the Veteran's hearing loss and tinnitus. The Board notes that, in the recent case of Monzingo v. Shinseki, No.10-922 (Vet. App. Nov. 21, 2012), the United States Court of Appeals for Veterans Claims (Court) held that "[t]here is no requirement that a medical examiner comment on every favorable piece of evidence in a claims file." Monzingo at 7 (citing Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners)). The Court instead has held that "examination reports are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion." Id. The Board finds that the 2008 VA audiologist's opinion is adequate under this standard as the audiologist provided his/her judgment on the requested medical questions as well as the essential rationales for his/her opinions. Further, the Board finds that the examination report contains sufficient evidence by which to evaluate the Veteran's claim and that the examiner's opinion is supported both by the evidence of record and the reasons stated therein. Thus, the Board finds that VA has properly assisted the Veteran by affording him adequate VA examinations and a medical opinion. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). VA did not have a duty to assist that was unmet. II. Analysis The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). In addition, certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). 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). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Evidence establishing a continuity of symptomatology may also be sufficient to substantiate the claim in accordance with 38 C.F.R. § 3.303(b). See Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). Continuity of symptomatology may be established if it is demonstrated that (1) a condition was "noted" during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Id. The Veteran contends that he currently suffers from bilateral hearing loss and tinnitus as a result of acoustic trauma in service from "tank fire/50 caliber machine gun fire." As noted above, the Veteran was afforded a VA audiology examination in connection with his claim in June 2008. The report of that examination reveals that the Veteran reported noise exposure to M60 machine gun firing and side arm firing in addition to tank guns. Post service noise exposure included "a lot" of work in construction; some deer hunting (for which he did not wear ear protection); some loud music concerts "years ago," minor engine work, and the use of a skill saw at home that he used with ear protection. He reported the onset of tinnitus since leaving the service. During the VA ear disease examination he reported the same noise exposure in service with the onset of hearing loss after 1977 and the onset of tinnitus "several years ago." Results of audiometric testing conducted as part of the June 2008 VA audiology examination was, in relevant part, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 30 40 40 60 LEFT 70 65 75 75 85 The VA audiologist diagnosed moderate to severe sensorineural hearing loss on right and moderately severe to profound hearing loss on the left. S/he opined that the Veteran's hearing loss and tinnitus were "less likely as not . . . caused by or a result of noise exposure while in the service." The audiologist based his/her opinion on the STRs that demonstrated normal hearing at entrance to and separation from service and no reported problems with his ears or hearing while in the service. (The Board notes that a review of the Veteran's STRs does indeed show that his hearing was within normal limits at entrance and separation, as demonstrated by the results of audiometric testing conducted as part of July 1974 and May 1977 examinations.) At the outset, the Board notes that impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, 4,000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 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 (2012). Thus, the evidence reflects that the Veteran has a current hearing disability for VA purposes. Id. Further, the Veteran's account of in-service noise exposure is credible and entirely consistent with the circumstances of his active duty, as his DD Form 214 indicates that his awards and decorations included marksman (rifle). Thus, in-service noise exposure has been conceded and the question is one of nexus. See Davidson, supra. In this case, the Veteran has stated his lay opinion as to why he believes that his hearing loss and tinnitus are related to service-and, in particular, his noise exposure during service. However, after reviewing the evidence of record, the Board finds that the preponderance of the evidence weighs against the claim. In this regard, the Board notes that the VA audiologist, after weighing the evidence of record, concluded that the Veteran's hearing loss and tinnitus were not related to service. The audiologist relied on the absence of reported problems with the ears or hearing while in service and the normal hearing at service entrance and separation. The examination report also contains a discussion of the Veteran's conceded in-service noise exposure, as well as his reported post-service noise exposure. The Board finds that, in light of the VA audiologist's negative nexus opinion, which is uncontradicted by any other competent evidence regarding etiology and which is supported by the reasons stated therein, there is no basis to establish service connection for hearing loss or tinnitus, as a crucial element of service connection has not been shown. See Davidson, supra (service connection requires evidence of a nexus between the claimed in-service disease or injury and the present disability). Indeed, there is simply insufficient evidence to demonstrate a medical relationship between the Veteran's in-service noise exposure and his current disability. See Hensley v. Brown, 5 Vet. App. 155 (1993). The Board notes that the Veteran has not submitted any opposing medical opinions in support of his claims for service connection for his bilateral hearing loss and tinnitus. In finding that service connection for hearing loss and tinnitus is not warranted, the Board has also considered the Veteran's assertion that his hearing loss and tinnitus are due to noise exposure in service. However, etiology of dysfunctions and disorders is generally a medical determination. See Jandreau v. Nicholson, 492 F.3d 1372, 1374-75 (Fed. Cir 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating and determining causal connections for ear conditions. See King v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. The Board also finds that there is no competent, credible evidence to suggest that sensorineural hearing loss manifested to a compensable degree within a year of the Veteran's separation from service. Accordingly, a presumption of service incurrence cannot be made. 38 C.F.R. §§ 3.307, 3.309. In addition, the Board has considered whether the evidence demonstrates a continuity of symptomatology since service, but finds that it does not. See 38 C.F.R. § 3.303(b). With respect to any lay statements specifically claiming that his hearing loss and tinnitus had its onset in service or has been continuous since service, the Board finds that the lay statements of the Veteran, his mother, and his brother are not credible. 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"); see also Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) ("Credibility can be genuinely evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, official plausibility of the testimony, and the consistency of the witness' testimony"). First, with respect to the Veteran's statements, any account reporting continuous manifestation of hearing loss or tinnitus symptoms since service is self-serving. Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the appellant's statements, it may consider whether self-interest may be a factor in making such statements). Second, the Veteran has provided inconsistent--and thus not credible--statements with respect to when he first experienced tinnitus. Prior to filing the current appeal, a TDCJ record dated in May 2007 noted that the Veteran reported "subj[ective] L[eft] sided tinnitus for "several" m[on]ths about 4 m[on]ths." This 4-month history was also noted in June and July 2007 TDCJ records, and a January 2008 record noted "P[atien]t st[ates] ringing in ears began 2/2007." In the current appeal, the Veteran told the June 2008 VA ear disease examiner that his symptoms of tinnitus began "several years ago." He told the June 2008 audiology examiner that his symptoms of tinnitus began "since leaving the service." The latter statement is vague as it does not pinpoint when after service the symptoms started. Since his claim was denied, he has repeatedly stated that the ringing in his ears began in service and has continued to the present time. See February 27, 2009 written statement; November 2011 written statements co-signed by the Veteran's mother and brother. Histories reported by the Veteran for treatment purposes are of more probative value than the more recent assertions and histories given for VA disability compensation purposes. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Based on the discrepancies between the lay evidence offered by the Veteran, his brother, and his mother in conjunction with his current claim and objective findings in the post-service treatment records, particularly repeated reference to tinnitus onset in 2007 in the TDCJ records, the Board finds that the Veteran's assertion that he exhibited symptoms related to hearing loss and tinnitus since service is not credible. Moreover, 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. The Board emphasizes the multi-year gap between discharge from service (1977) and initial reported symptoms related to tinnitus in approximately 2007 (20-year gap). See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). Thus, although the Veteran believes his hearing loss and tinnitus to be related to his military service, the Board finds the medical evidence of record to be more probative on the issue of nexus. The VA audiologist provided a medical explanation as to why the Veteran's theory of the case should be rejected. The Board is persuaded by this opinion because of the audiologist's expertise. Accordingly, because the preponderance of the evidence is against the Veteran's claims, the issues of entitlement to service connection for hearing loss and tinnitus must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990); 38 C.F.R. § 3.102 (2012). ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs