Citation Nr: 1301437 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 08-27 267 ) 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 a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to November 1967. The Veteran's primary military occupational specialty was as an administrative man. This case was previously before the Board of Veterans' Appeals (Board) in October 2010 and March 2012, at which time, it was remanded for further development. Following the requested development, the RO confirmed and continued its denial of entitlement to service connection for a bilateral hearing loss disability and tinnitus. Thereafter, the case was returned to the Board for further appellate action. In June 2011, the Veteran had a hearing at the RO before the Acting Veterans Law Judge whose signature appears at the end of this decision. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has a current bilateral hearing loss disability under applicable VA criteria. 2. The preponderance of the evidence shows that tinnitus was first manifested many years after service and that it is unrelated thereto. CONCLUSIONS OF LAW 1. The claimed bilateral 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, 3.307, 3.309 (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 bilateral 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 May 2006, the RO denied the Veteran's claim of entitlement to service connection for a bilateral hearing loss disability. the Veteran was notified of that decision, as well as his appellate rights; however, a notice of disagreement was not received with which to initiate an appeal. Therefore, that decision became final under the law and regulations then in effect. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2005). In November 2007, the Veteran requested that VA reopen his claim of entitlement to service connection for a bilateral hearing loss disability. He also filed an initial claim of entitlement to service connection for tinnitus. There is no issue as to providing an appropriate application form or completeness of the application. Following the receipt of his 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 and set forth the criteria, generally, for rating service-connected disabilities and for assigning effective dates, should service connection be granted. VA also informed him of the criteria for reopening the prior final decision regarding his claim of entitlement to service connection for a bilateral hearing loss disability. 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, 5107(a). See, e.g., Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992). In this case, VA obtained or ensured the presence of the Veteran's service treatment records; records reflecting his VA treatment in November 2005; a November 2007 report from D. A. V., Jr., M.D.; a December 2007 report from the Veteran's former employer; the transcript of an October 2010 hearing held at the RO before a VA Decision Review Officer; and the transcript of the June 2011 hearing held before the undersigned Acting Veterans Law Judge. In November 2008 and April 2012, VA examined the Veteran to determine the nature and etiology of any hearing loss disability 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, reviewed pertinent medical research, and rendered 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 (2012); 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). 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 his claim; 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 diseases of the nervous system, such as a sensory neural 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 On the Report of Medical History, completed in conjunction with the Veteran's August 1965 service entrance examination, the Veteran answered "NO", when asked if he then had, or had ever had, ear, nose, or throat trouble or running ears. He also responded "NO", when asked if he had ever worn hearing aids. On examination, his ears and eardrums were found to be normal. Audiometric testing revealed the following puretone thresholds at the indicated hertz levels. HERTZ 500 1000 2000 3000 4000 RIGHT -10(5) -10(0) -10(0) -10(0) -10(-5) LEFT -10(5) -10(0) -10(0) -10(0) -10(-5) Speech audiometry was not performed. It should be noted that prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Those are the figures on the left of each column and are not in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses. In June 1967, the Veteran was treated for throbbing pain in his left ear. The left external ear canal was swollen, red, and sloughing skin. The tympanic membrane was red and opaque. The diagnostic impressions were otitis media and otitis externa. During a followup evaluation several days later, it was noted that the Veteran had history of otitis media, manifested by blood in his left ear. It was also noted that he was extremely deaf in the left ear. Following the treatment, the impression was spontaneous rupture of the left tympanic membrane with otitis media. The Veteran was referred for an ear, nose, and throat consultation which indicated that the left ear was okay. The ear was cleaned with alcohol. During a followup visit later in June 1967, the Veteran's ears were found to be clear. In July 1967, the Veteran's left ear was found to be infected. There was erythema in the external auditory canal near the tympanic membrane. The tympanic membrane appeared opaque. The following day, the Veteran's tympanic membrane was not visible due to the presence of wax. Several days later, there was a great deal of slough in the external ear canal. During the Veteran's November 1967 service separation examination, the Veteran's ears and eardrums were found to be normal. His hearing acuity for the whispered and spoken voices was 15/15, bilaterally. The day after his service separation examination, the Veteran was treated for a right earache. In November 2005, the Veteran complained of difficulty hearing and asked to obtain hearing aids. He was referred for consultation to the VA Audiology Service. He complained of a history of noise exposure and hearing difficulties in challenging listening situations, such as when he was on the job as a roofer or in the presence of loud background music. He denied the presence of tinnitus. It was noted that he had a history of ear swelling in service. On examination, his external ear canals were clear, and speech recognition testing was excellent. Puretone audiometry was within normal limits. However, it was noted that the audiometric data could not be used for adjudication as the VA Compensation and Pension protocol could not be met at the clinic using the hearing aid evaluation protocol. Following the consultation, the examiner concluded that the Veteran was not a hearing aid candidate at that time. He was advised that the mild nature of his hearing loss at only one frequency in each ear was likely to make hearing aid use less satisfactory than by simply employing different communication strategies, such as face the speaker, speaking slowly, and reducing ambient noise levels. The relevant diagnosis was a mild, bilateral, high frequency hearing loss, and the Veteran was advised to have a reevaluation every two years. In November 2007, D. A. V., Jr., M.D., reported that he provided the Veteran with a thorough ear, nose, and throat examination, as well as an audiogram. The Veteran reported a history of inservice noise exposure during training, not during the performance of his military occupational specialty. He also reported a post-service history of noise exposure in an aircraft factory and in construction. He also reported a history of a spider bite on his right ear. In addition, the Veteran reported tinnitus, manifest by constant ringing. Audiometric testing revealed the following puretone thresholds at the indicated hertz levels. HERTZ 500 1000 2000 3000 4000 RIGHT 40 40 40 55 65 LEFT 45 50 40 50 60 Speech audiometry revealed speech recognition ability of 56 percent in the right ear and 84 percent in the left ear. Following the examination, Dr. V. determined that the Veteran had a mild to moderated sensorineural hearing loss due to noise-induced trauma, while in the active military service. In December 2007, the Veteran's former employer, a general contractor, reported that he had employed the Veteran for approximately two years. The former employer characterized the Veteran as a good employee with a hearing problem and stated that he didn't follow verbal commands. The former employer felt that the Veteran was trying to read lips and asked the Veteran to have his ears checked. In November 2008, the Veteran was examined by VA to determine the nature and etiology of any hearing loss disability or tinnitus found to be present. He complained of hearing loss and noted a history of noise exposure in service, during weapons qualification. He noted that ear protection was not available. He noted that after service, he worked in administration for an aircraft company, as a photographer, and as a roofer. He reported little to no noise exposure and noted that he did not use ear protection. He denied recreational noise exposure or the presence of tinnitus. The Veteran noted that in service he had reported an episode in which he was hospitalized for swelling to the side of his face and ear and a temporary hearing loss. The cause of that event was very unclear, but the Veteran reported the possibility of a spider bite. In addition to the hearing tests administered during the Veteran's service entrance and separation examinations and by D. A. V., Jr., M.D., the VA examiner noted a VA computerized patient record which revealed audiometric testing in November 2006. The following puretone thresholds were reported: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 5 25 30 LEFT 10 10 10 30 15 Speech audiometry was not reported from November 2006. Audiometric testing revealed the following puretone thresholds at the indicated hertz levels. HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 20 25 LEFT 15 15 10 25 15 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 96 percent in the left ear. The examiner noted that in the relevant frequencies, the Veteran's hearing was clinically normal, and that speech recognition was excellent in the right ear and good in the left ear. The examiner also noted that tinnitus was not found during the VA examination. In April 2012, the Veteran was reexamined by VA to determine the nature and etiology of any hearing loss disability or tinnitus found to be present. The foregoing history of the Veteran's audiologic examinations and hearing tests were noted. In addition, the Veteran noted his history of inservice noise exposure during weapons qualification; a fall on a ropes course in service; and the history of right sided facial and ear swelling in service. Furthermore, the Veteran reported his various jobs and noise exposure in civilian life. He continued to complain of recurrent intermittent tinnitus. Audiometric testing revealed the following puretone thresholds at the indicated hertz levels. The examiner noted that the Veteran had to be retested several times due to some inconsistencies: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 30 15 LEFT 15 10 10 20 25 Speech audiometry revealed that his speech recognition ability was too unreliable to score. During the interview, he demonstrated some exaggeration to hear and was very hesitant in repeating back the Maryland CNC word lists. The examiner also noted that the Veteran's speech recognition was not consistent with his puretone hearing. Therefore, the examiner stated that only the puretone testing should be used for rating purposes. Following the examination, the examiner concluded that the Veteran's hearing was within normal limits in the applicable frequencies. The VA examiner found no reason for medical followup. The examiner noted that during the Veteran's service entrance examination, his hearing had been normal. The examiner also noted that the whispered voice test at the time of his separation from service was not calibrated with audiometrics. She acknowledged that the hearing tests in 2005 had revealed a mild high frequency hearing loss and that the test administered in 2007 had revealed a mild to moderately severe hearing loss with inconsistencies. In addition to the normal hearing noted in 2008 and 2012, the examiner opined that it was less likely than not that the Veteran's tinnitus was related to service. In so saying, the VA examiner stated that there was no evidence of tinnitus in service or during the Veteran's November 2008 VA examination. In addition, the examiner noted that the Veteran reported that he experienced tinnitus very rarely. Analysis During his hearings, the Veteran testified that his hearing loss disability and tinnitus were primarily the result of extreme noise exposure during training. In particular, cites the sounds of small arms fire and machine gun fire, as well as the noise from grenade launchers being fired. In the alternative, he stated that his hearing loss disability and tinnitus are due to a spider bite sustained during service at Parris Island, South Carolina. Therefore, he maintains that service connection is warranted for a hearing loss disability and tinnitus. 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 experienced difficulty hearing or ringing in his ears in and after service. 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). Nevertheless, in certain instances, lay evidence can be competent and sufficient to establish a diagnosis of a condition. Indeed, competent lay evidence may be used to establish a medical condition, including causation. King v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012) (the Court of Appeals for the Federal Circuit discussing 38 U.S.C.A. § 5107(b), 38 C.F.R. § 3.307(b), and its prior holdings in Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); and Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009)). Such cases may occur under the following circumstances: (1) when a layperson is competent to identify the medical condition, (2) when a layperson is reporting a contemporaneous medical diagnosis, or (3) when a lay person describes symptoms which are subsequently diagnosed by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran's opinion, without more, is not dispositive, unless the particular disorders at issue are ones which are amenable to lay observation. 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). In this case, the Veteran's 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. The report of VA audiometric testing in November 2006 is similarly negative. Although the Veteran contends that he now has a hearing loss disability, the preponderance of the evidence shows that he did not meet the VA criteria for such disability until November 2007, when a bilateral sensorineural hearing loss disability was reported by D. A. V., Jr., M.D. Therefore, the Veteran was examined by VA in November 2008 and April 2012 to determine the nature and etiology of any hearing loss disability found to be present. However, those examinations failed to confirm the presence of such a disorder. The report of the November 2008 VA examination did not show a puretone threshold worse than 25 decibels in either ear at any of the applicable frequencies, and the report of the April 2012 VA examination showed no worse than a puretone threshold of 30 decibels at one of the applicable frequencies in the Veteran's left ear. In the right ear, the Veteran continued to demonstrate no puretone threshold above 25 decibels. Then, as now, such findings did not meet the VA criteria for a finding of a current, identifiable hearing loss disability in either ear. Inasmuch as the preponderance of the competent evidence of record is against a finding that the Veteran currently has a chronic, identifiable hearing loss disability for VA purposes, service connection is not warranted on any basis. Accordingly, the Veteran's claim of entitlement to service connection for a bilateral hearing loss disability is denied. With respect to his claim of entitlement to service connection for tinnitus, the Veteran's service treatment records are also negative for that disorder. Such a disorder was not manifested until November 2007, when it was reported by D. A. V., Jr., M.D. 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 militates strongly against the claim. 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). This is particularly true in light of the fact that the Veteran denied the presence of tinnitus when examined by the VA Audiology Service in November 2005. Nevertheless, the Veteran's reports of continuing symptomatology since service were sufficient to trigger the need for a VA examination to determine the nature and etiology of his hearing loss disability and tinnitus. McLendon v Nicholson, 20 Vet. App. 79 (2006). During the November 2008 VA examination, the presence of tinnitus was not found. Although it was reported during the April 2012 VA examination, the examiner noted that it was not present in service or during the November 2008 examination. The examiner also noted that the Veteran experienced tinnitus very rarely. Therefore, he concluded that it was less likely than not related to service. The Board finds the reports of the VA examiners more full and complete that the November 2007 report from Dr. V. While the VA examiners and Dr. V. interviewed and examined the Veteran, documented his medical conditions, and rendered an opinion, the VA examiners reviewed the Veteran's medical records and claims file, including his audiological, noise, and medical history. That is, there opinions were supported by the Veteran's medical documentation. However, there is no evidence that Dr. V. had any history with the Veteran beyond his November 2007 examination. The Veteran's history of noise exposure and his audiological history were obtained from the Veteran; and ultimately, Dr. V.'s opinion was based in part on that history. Therefore, the Board find the greater probative value on the opinions of the VA examiners. Inasmuch as the preponderance of the evidence is negative for a finding of tinnitus in service, and inasmuch as a preponderance of the evidence is against a finding of a nexus to service, the Veteran's tinnitus does not meet the criteria for service connection. Accordingly, service connection for tinnitus is not warranted, and to that extent, the appeal is also denied. In arriving at these decisions, the Board has also 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 bilateral hearing loss disability is denied. Entitlement to service connection for tinnitus is denied. ________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs