Citation Nr: 1301202 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 10-36 108 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral tinnitus. REPRESENTATION The Veteran is represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J.B. Freeman, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty in the U.S. Navy from April 1969 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the RO in St. Petersburg, Florida, which, in relevant part, denied the above claims. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran had some excessive noise exposure during service while serving aboard two aircraft carriers. 2. The Veteran does not have a current right ear hearing loss disability for VA disability compensation purposes. 3. The Veteran has current disabilities of left ear conductive hearing loss and bilateral tinnitus. 4. Chronic symptoms of left ear conductive hearing loss were not present in service. 5. Symptoms of left ear conductive hearing loss have not been continuous since service separation. 6. The Veteran's left ear conductive hearing loss is not etiologically related to exposure to noise in service. 7. The Veteran's bilateral tinnitus is related to the loud noise exposure during service. CONCLUSIONS OF LAW 1. A hearing loss disability of either ear was not incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385, 3.307, 3.309 (2012). 2. Resolving reasonable doubt in the Veteran's favor, bilateral tinnitus was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claims for service connection. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). As to the claim of service connection for bilateral tinnitus, that claim has been granted in full, as discussed below. As such, the Board finds that any error related to the duties to notify or assist on that claim is moot. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; Mlechick v. Mansfield, 503 F.3d 1340 (Fed. Cir. 2007). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA 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. Id. Compliance with the first element requires notice of the five service connection elements. See 38 U.S.C. § 5103(a); see also Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). Prior to initial adjudication of the Veteran's bilateral hearing loss claim, a July 2008 letter fully satisfied the duty to notify provisions as to all required elements. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. The Veteran submitted private medical records he wanted associated with the file. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the bilateral hearing loss claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. An examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). No VA examination was provided for the bilateral hearing loss claim. A competent private medical examination was obtained by the Veteran which established that he did not have a right ear hearing loss disability. The first McLendon element is not met as to right ear hearing loss disability and no VA examination is required. The Veteran was diagnosed with left ear hearing loss disability and had some excessive in-service noise exposure to which he contends his left ear hearing loss is related. There is no allegation that the left ear hearing loss was present during service or has been present continuously since service. A competent August 2008 private audiology examination report contains an opinion with rationale rooted in the Veteran's service treatment records and DD 214 that the left ear hearing loss was not present during service and is not related to noise exposure or any incident therein. The report provides the sufficient evidence on which to decide the case. The fourth McLendon element is not satisfied and thus no VA examination was warranted for the left ear hearing loss claim. Service Connection Legal Authority Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). With regard to claims for service connection for hearing loss, the absence of absence of service treatment records showing in-service audiometric evidence of hearing loss is not fatal to the claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Service connection may also 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). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In order to establish service connection for the claimed disorder, generally, there must be competent and credible 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 current disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and other organic diseases of the nervous system (including sensorineural hearing loss) become manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. When a veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which he served, his military records, and all pertinent medical and lay evidence. 38 C.F.R. § 3.303(a); see also 38 U.S.C.A. § 1154. The Board has thoroughly reviewed all the lay and medical evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, every item of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Service Connection for Hearing Loss and Tinnitus The Veteran contends that he has bilateral hearing loss and tinnitus due to excessive noise exposure during service aboard the aircraft carriers U.S.S. Hornet and U.S.S. Kitty Hawk. After a review of all the evidence, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran was exposed to loud noise during service while aboard two aircraft carriers. The Veteran is competent to report noise exposure in service. See Bennett v. Brown, 10 Vet. App. 178 (1997) (the Board may rely upon lay testimony as to observable facts). In each statement, including a June 2008 informal claim, July 2008 formal claim, February 2010 Notice of Disagreement, May 2010 statement, and August 2010 Substantive Appeal, the Veteran alleges that his hearing loss and tinnitus are due to various forms of noise exposure during service, not that he had hearing loss or tinnitus during service. Specifically, he contends that he had a variety of excessive noise exposures during service, including jet noise, in the ship's laundry and in a "decommissioning crew" using pneumatic paint chipping tools. His Substantive Appeal requests that the Board find that he had noise exposure due to service on aircraft carriers. Service personnel records show that he served aboard the U.S.S. Hornet and U.S.S. Kitty Hawk, both aircraft carriers. The Veteran's DD Form 214 shows that his military occupational specialty (MOS) was equivalent to a civilian store clerk, under the "SK" series of occupations. The Department of Defense has developed a system of the likelihood of noise exposure based on MOS for VA's use in rating disabilities. See VA Fast Letter 10-35, Sept. 2, 2010. The DOD list indicates that the obsolete "SK" storekeeper MOS had a low likelihood of noise exposure. Review of the Veteran's service treatment records shows that he had also been assigned to the mess deck for an extended period. The DOD list shows a current rating for a Culinary Specialist and an obsolete rating for Mess Management Specialist, both having a low likelihood of noise exposure. There is no indication in either his service treatment or personnel records that he was assigned to a "decommissioning crew." The Board finds that, regardless of his MOS, the service aboard aircraft carriers would occasionally entail some level of excessive noise exposure. The Veteran has reported noise exposure from jet noise, in the ship's laundry, and in a "decommissioning crew" using pneumatic paint chipping tools. The Veteran is competent to report exposure to loud noise when moving about the aircraft carriers, even when his MOS would not take him to an environment where excessive noise exposure would typically occur. The Board finds that occasional excessive noise exposure is consistent with the conditions of the Veteran's service aboard the Hornet and Kitty Hawk. 38 U.S.C.A. § 1154(a). The Board will resolve reasonable doubt in favor of the Veteran on this question to find that he had some excessive noise exposure incidental to service aboard aircraft carriers. On the question of current disability, the Board finds that the Veteran does not have a hearing loss "disability" of the right ear (38 C.F.R. § 3.385); that he does have a current disability of hearing loss of the left ear that meets VA criteria (38 C.F.R. § 3.385); and he has a current disability of tinnitus. The Veteran underwent an August 2008 private audiology examination. At that time, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 20 Not legible 15 LEFT 15 15 25 45 50 Speech recognition was 100 percent in both ears. The speech recognition scores were found consistent with the puretone threshold scores. The report does not state that the word recognition testing was performed using the Maryland CNC test or an equivalent. The Board will assume for the purposes of this decision that it is. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley, 5 Vet. App. 157. The VA audiologist assessed that the Veteran had no hearing loss disability in the right ear. While the 3000 Hz range entry is not legible, the marks are between the 10 and 20 dB lines. The Veteran does have a hearing loss disability for VA purposes in the left ear given the 3000 and 4000 Hz scores above 40 dB. See id. The audiologist diagnosed conductive left ear hearing loss. Based on this evidence, the Board finds that current disability of left ear conductive hearing loss is well established, while the Veteran does not have right ear hearing loss that is disabling for VA disability compensation purposes. See 38 C.F.R. §§ 3.303, 3.385. With regard to current disability of hearing loss, the Veteran insists that he has hearing loss in both ears. The Board observes that 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. See Jandreau, 492 F.3d 1372; see also Barr v. Nicholson, 21 Vet. App. 303 (2007). Although the Veteran is competent to give evidence about what he experiences, including symptoms of hearing loss or tinnitus he experiences at any time, he is not competent to diagnose hearing loss disability for VA disability compensation purposes, which is based instead on audiometric testing and speech recognition testing, and he is not competent to relate current hearing loss to noise exposure in service. Although he is competent to report diminished hearing acuity, whether this rises to a disability is not within his ability to report competently. The record does not show that he has the requisite medical knowledge or audiological training for these purposes. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The most probative competent evidence on the question of current hearing loss "disability" is comprised of the August 2008 audiology report. The Board finds that the 2008 audiology report greatly outweighs the Veteran's subjective and unquantifiable account of right ear hearing loss. The weight of the competent evidence demonstrates that the Veteran does not have a right ear hearing loss disability for VA compensation purposes because no threshold score exceeded 25 and his word recognition score was perfect. See 38 C.F.R. § 3.385. For these reasons, the Board finds that the Veteran does not have a right ear hearing loss "disability" that meets the regulatory criteria for VA disability compensation purposes. See 38 C.F.R. § 3.385. In the absence of a current right ear hearing loss disability, service connection cannot be granted for right ear hearing loss regardless of any incident of service. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board also finds that the Veteran has a current disability of tinnitus. The Veteran has alleged that he has tinnitus. Tinnitus is the type of disorder associated with symptoms capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002); see also Jandreau (stating that lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition). Furthermore, the August 2008 private audiology report indicates a current disability of bilateral tinnitus. The current disability of bilateral tinnitus is well established on the record. The evidence shows that, while the Veteran now has left ear hearing loss disability, and had some recognized loud noise exposure in service, he did not experience chronic symptoms of left ear hearing loss during service or continuous symptoms of left ear hearing loss since service separation, and that left ear hearing loss is not otherwise related by competent evidence to any incident of service, to include excessive noise exposure onboard aircraft carriers. The Veteran has not alleged the presence of a hearing loss or tinnitus disability during service, and the competent evidence does not otherwise establish the existence of a hearing loss or tinnitus disability during service. At an enlistment physical examination in April 1969, audiological evaluation revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 5 5 LEFT 5 -5 5 5 15 At separation from service in July 1970, the Veteran was seen for another physical examination. An audiometry test was not performed. The service separation examiner only recorded that the Veteran had 15 out of 15 on both whispered and spoken voice tests in each ear. The separation examination report indicates the ears were otherwise clinically normal, and do not reflect any complaints of tinnitus. The service treatment records do not otherwise contain any notations of complaints or treatment related to the ears, hearing, or tinnitus. In his May 2010 statement, the Veteran has correctly objected to the emphasis on the service separation examination not showing a hearing loss disability. In this Veteran's case, because audiometric testing was not conducted at separation from service, the absence of in-service audiometric evidence of hearing loss is not fatal to the claim for service connection. See Ledford, 3 Vet. App. at 89. With regard to the probative value to assign to the whispered voice test at service separation, the Board finds that the whispered voice test is a subjective and blunt measure of hearing loss, and is of little probative value in this case. The whispered voice test cannot measure audiometric threshold shifts, can neither establish nor rule out the presence of a hearing loss disability as defined in 38 C.F.R. § 3.385, and is not capable of capturing hearing loss that may have begun in service following acoustic trauma. See Smith v. Derwinski, 2 Vet. App. 137, 138, 140 (1992) (recognizing that audiometric testing is more precise than a whisper voice test, and the whisper voice test is only an alternative means of testing hearing). Particularly in light of the Court's holding in Hensley, 5 Vet. App. at 159, that 38 C.F.R. § 3.385 does not necessarily preclude service connection for hearing loss that first met the regulation's requirements for hearing loss disability after service, the service examiners' indications that the whisper tests showed normal hearing, including at service separation, is of little probative value. On review of the record, the Board finds that there is no lay or medical evidence that he had chronic signs or symptoms of left ear hearing loss or bilateral tinnitus during service or at service separation. Even accepting that the whispered voice test is of little probative value, the Veteran has not alleged and the record does not otherwise suggest that he had signs or symptoms of left ear hearing loss or bilateral tinnitus during or at separation from service. The Board finds the preponderance of the evidence is against the presence of a chronic left ear hearing loss or chronic symptoms of bilateral tinnitus during service. On the question of whether the Veteran experienced continuous symptoms of hearing loss after service separation, the histories presented during private treatment after service do not include a mention of in-service symptoms of hearing loss, continuous post-service symptoms of hearing loss, or post-service continuous symptoms or treatment of hearing loss. See Cromer v. Nicholson, 19 Vet. App. 215 (2005). On the question of whether hearing loss first diagnosed years after service is related to service, the Board finds that the weight of the evidence demonstrates that the Veteran's left ear conductive hearing loss is not etiologically related to exposure to noise in service. As recognized in this decision, the Veteran is competent to give evidence about symptoms of hearing loss that he experiences at any time. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current hearing loss disorder because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). His contentions do not constitute a medical diagnosis or opinion relating the left ear hearing loss to service or any incident of service. The Board finds that the Veteran's allegations of a nexus between service and his left ear hearing loss are not competent evidence. See Jandreau. On the question of relationship of left ear hearing loss disability to the in-service noise exposure, the August 2008 VA audiology examination report reflects the VA audiologist's opinion that the left ear hearing loss was not at least as likely as not related to service. The VA audiologist reasoned that the left ear hearing loss is conductive in nature. The VA audiologist explained that conductive hearing loss is not etiologically related to noise exposure, reasoning that, even if the Veteran had noise exposure during service, it is immaterial to the claim for service connection because it is not an incurrence event for the current conductive hearing loss disability. The VA audiologist also correctly reasoned that there is no other identified injury, disease, or event that occurred during service to which the left ear conductive hearing loss may now be related. This opinion, which tends to weigh against a finding of relationship between current hearing loss disability and noise exposure in service, is the only competent medical evidence on point in the record. For these reasons, the Board finds that a preponderance of the evidence is against a finding of relationship between service and the left ear conductive hearing loss disability. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The Veteran has been diagnosed with conductive, not sensorineural, hearing loss. Conductive hearing loss is not a disease of the nervous system. See Boggs v. Peake, 520 F.3d 1330, 1332-33 (Fed.Cir. 2008). Moreover, the evidence does not show that the Veteran's hearing loss manifested to a compensable degree within one year of service separation, but rather shows no continuous symptoms of hearing loss during the period after service. For these reasons, presumptive service connection is not available for left ear hearing loss disability. See 38 C.F.R. §§ 3.307, 3.309. For these reasons, the Board finds that the preponderance of the evidence is against the claim for service connection for bilateral hearing loss. The Veteran does not have a right ear hearing loss disability for VA disability compensation purposes. His left ear conductive hearing loss was not present during service, has not been present continuously since service, and is not otherwise related to any incident of service, including excessive noise exposure on the aircraft carriers. The evidence shows that the conductive hearing loss is also not a disability covered by presumptive service connection. Consequently, the benefit-of-the-doubt rule does not apply, and the bilateral hearing loss claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. With regard to the claim for service connection for bilateral tinnitus, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran's current tinnitus is related to the loud noise exposure during service. As indicated above, the Board has found that the Veteran was exposed to loud noise in service while on two aircraft carriers, and that he has a current disability of tinnitus. Notwithstanding the absence of chronic symptoms of tinnitus in service or continuous symptoms of tinnitus since service, and the limited noise exposure during service, there is some competent medical opinion evidence in this case that tends to relate the current tinnitus to the noise exposure in service. See 38 C.F.R. § 3.303(d) (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); Hensley at 159 (holding that a medically sound basis for attributing current hearing loss disability to service may serve as a basis for a grant of service connection for hearing loss). The August 2008 audiological report includes the opinion that the Veteran's exposure to jet engines and small arms fire while in service caused his current bilateral tinnitus. The Veteran submitted an amended report from the audiologist in August 2010 which includes the opinion that the Veteran had hazardous noise exposure while in service that at least as likely as not caused his tinnitus. The VA audiologist's opinion was based on a review of the service records and an otherwise accurate factual predicate regarding noise exposure and symptomatology. The Board notes that the Veteran served in the Navy, but considers the misstatement in the August 2008 report that he was in the Marines to be a typographical error not material to the factual predicate of the opinion. Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's current bilateral tinnitus is the result of an in-service excessive noise exposure. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss is denied. Service connection for bilateral tinnitus is granted. ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs