Citation Nr: 1301587 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 12-30 047 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran had active service from July 1951 to July 1955. This matter comes before the Board of Veterans' Appeals (Board) from an October 2010 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which denied service connection for bilateral hearing loss and for tinnitus. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The claim of entitlement to service connection for tinnitus is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's bilateral hearing loss disability, for VA purposes, was first shown many years after his active duty and has not been found by competent and credible evidence to be related thereto. CONCLUSION OF LAW Bilateral hearing loss was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the 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, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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. 38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that any error in VCAA notice should be presumed prejudicial, and that VA bears the burden of proving that such an error did not cause harm. Sanders v. Nicholson, 487 F.3d 881 ( Fed. Cir. 2007). However, the U.S. Supreme Court reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2). The Supreme Court held that - except for cases in which VA failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error rests with the party raising the issue, the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in July 2010 that fully addressed the notice elements and was sent prior to the initial RO decision in this matter. This letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The Board also notes that, in the July 2010 letter, the Veteran was also advised of how disability ratings and effective dates are assigned. See Dingess v. Nicholson, supra. Moreover, he has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. See Sanders v. Nicholson, supra. Thus, the Board concludes that all required notice has been given to the Veteran. The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claim. The RO has obtained all identified and available service and post-service records for the Veteran. With regard to treatment records from the private physician that the Veteran reported saw for hearing loss in the 1970s, the Board notes that the Veteran indicated that his physician is now retired and does not have the Veteran's medical records from that period of time. Further, in September 2010 the Veteran underwent a VA examination, which included a review of the claims folder and a history obtained from the Veteran, and examination findings were reported, along with diagnoses/opinions, which were supported in the record. The September 2010 VA examination report is therefore adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The Board concludes that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, supra. The Board concludes that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. No useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The United States Court of Appeals for Veterans Claims (Court) as held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Factual Background Service treatment records (STRs) show no report of or finding of bilateral hearing loss. The enlistment examination revealed a normal clinical evaluation of the ears, and it was noted that the Veteran's hearing acuity was 15/15, bilaterally, on whispered voice testing. His separation examination in July 1955 revealed a normal clinical evaluation of the ears, and it was noted that hearing acuity was 15/15, bilaterally, on whispered and spoken voice testing. In his initial claim for service connection (VA Form 21-526, Application for Compensation and/or Pension), the Veteran contended that his bilateral hearing loss was caused by exposure to excessive noise in service. He reported that his job in service was in aircraft radio maintenance, which involved post- and pre-flight tuning of radio equipment on jet aircrafts, the engines of which were frequently running while he did his service work. He claimed that ear protection was not provided during his term of service, and that the aircraft radios emitted extremely loud, high pitch, sounds during the tuning process. In a statement dated in June 2010, the Veteran reported that he served in the Air Force during the Korean Conflict from 1951 through 1955 as an aircraft electronics maintenance specialist, and that his job was performed without the benefit of ear protection, as there was little or no concern at the time about the potential for ear damage. He claimed that he had significant hearing loss that had taken place over a number of years, and that his hearing had diminished since his time in service. He went on to describe his in-service exposure to excessive noise in detail. He indicated that in an office visit to his physician in approximately 1970, it was brought to his attention that he did have hearing impairment, and that since then it had become progressively worse. In a Report of Contact dated in July 2010, it was noted that the Veteran reported that he had been seen by a private physician from approximately 1970 to 1975 for hearing loss, and that this physician had since retired and was not in possession of the Veteran's medical records. The Veteran stated that he would attempt to send in a letter from this physician to support his claim. On a VA examination in September 2010, it was noted that the Veteran reported military noise exposure to aircraft engine noise and headset "squelch," and denied post-military noise exposure. The diagnoses included bilateral normal to moderate high frequency sensorineural hearing loss with excellent word recognition, and the examiner opined that the Veteran's bilateral hearing loss was not caused by or a result of acoustic trauma during military service. For rationale, the examiner initially acknowledged the Veteran's military noise exposure, and noted that normal whisper tests in service did not rule out hearing loss. The examiner indicated that the hearing loss noted "today" was not worse than normal aging, and that the audiometric configuration was not consistent with noise induced hearing loss. The examiner concluded with stating that there was "no evidence the [V]eteran suffered hearing loss . . . secondary to acoustic trauma as the current hearing loss is consistent with normal aging". Received from the Veteran's wife in June 2011 was a statement in which she contended that she was engaged to the Veteran during his time in the Air Force, and that during his tour in service she never noted any hearing problem when they were alone, but did note that the Veteran had difficulty hearing when they were with others that were conversing. She claimed that, as years passed, the problem had become more severe and that it was now at the point where she often needed to repeat things. She also noted the Veteran complained of problems hearing voices on television in which there are background sounds along with conversation. A private audiological evaluation, dated in July 2012, also noted the presence of the Veteran's bilateral hearing loss disability. Therein, the private audiologist provided an impression of history of military noise exposures and trouble hearing, denied by VA and wants "outside audio." III. Analysis A. Laws and Regulations Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection for certain chronic diseases, including sensorineural hearing loss (as organic disease of the nervous system) will be presumed if such disease becomes manifest to a compensable degree within the first year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307 , 3.309. For the purpose of applying the laws administered by VA, impaired hearing is considered a "disability" when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the above frequencies are 26 decibels or higher; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The threshold requirement for service connection to be granted is competent medical evidence of the current existence of the claimed disorder. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). B. Discussion The Veteran essentially contends that his bilateral hearing loss was caused by exposure to excessive noise in service doing his job in aircraft radio maintenance. STRs show no report of finding of hearing loss. The Board notes, however, that the lack of any evidence showing hearing loss consistent with the regulatory threshold requirements for hearing disability during service (38 C.F.R. § 3.385) is not fatal to his claim. The laws and regulations do not require in-service complaints of, or treatment for, hearing loss in order to establish service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, where there is no evidence of a hearing disability until many years after separation from service, "[i]f evidence should sufficiently demonstrate a medical relationship between the veteran's in-service exposure to loud noise and his current disability, it would follow that the veteran incurred an injury in service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Here, VA audiological testing conducted in September 2010 confirms that the Veteran has bilateral hearing loss disability for VA purposes, under 38 C.F.R. § 3.385. Thus, there is sufficient evidence of a current disability. With regard to noise exposure, VA has essentially conceded that the Veteran was exposed to excessive noise in service. In this regard, the Veteran reported that his military occupation involved conducting pre-flight and post-flight radio checks on B-47 aircraft communications, and doing needed repairs inside and outside the aircraft. The Veteran is certainly capable of providing history of exposure to excessive noise in service, and the Board, noting his service, accepts his account. What is missing from the record is competent evidence showing that the Veteran's bilateral hearing loss is causally related to service. 38 C.F.R. § 3.303. On a VA examination in September 2010, the examiner opined that the Veteran's bilateral hearing loss was not caused by or a result of acoustic trauma during military service, and provided supporting rationale for this opinion, while also acknowledging the Veteran's military noise exposure, as well as the fact that his normal whisper tests in service did not rule out hearing loss. The examiner explained that the Veteran's audiometric configuration was not consistent with noise-induced hearing loss but was, rather, related to his age. The Board therefore finds the VA examiner's opinion to be probative and persuasive regarding the issue of whether the Veteran's bilateral hearing loss may be related to service. The Board also notes that, while the Veteran submitted a private audiological evaluation, dated in July 2012, which confirmed the presence of his bilateral hearing loss disability, and noted he had history of military noise exposures, such evaluation did not provide an opinion regarding whether his bilateral hearing loss may be related to noise exposure service. Thus, the record does not contain competent medical evidence to the contrary of the VA examiner's opinion in September 2010. Full consideration has been given to the assertions of the Veteran and his wife that he has had hearing loss since service. In this regard, the Veteran is competent to report his hearing has decreased since service, and his wife is competent to report that she observed the Veteran having difficulty hearing. However, the Veteran and his wife are laypersons, and, as such, have no competence to render a medical opinion on diagnosis or etiology of a condition. Espiritu v. Derwinski, supra. While lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation, the Board finds no basis for concluding that a lay person would be capable of discerning what disorder(s) hearing loss represented, in the absence of specialized training, which the Veteran in this case has not established. Jandreau v. Nicholson, supra; see Buchanan v. Nicholson, supra. In addition, the Board notes that relating noise exposure in service to a current hearing loss disability, especially with a lengthy gap in the record, requires opinion evidence from experts with medical training, and is not subject to lay diagnosis. Espiritu v. Derwinski, supra. Further, and with regard to the lengthy gap between service and the first diagnosis of a hearing loss disability, the Board acknowledges the Veteran's complaints of deteriorating hearing problems since service. Significantly, however, the September 2010 VA examiner considered this evidence and concluded that the Veteran's audiometric configuration was not consistent with noise-induced trauma. Continuity of symptomatology does not negate the need for competent relevant evidence of an association between a current disability and service. In addition, normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). Thus, service connection for bilateral hearing loss is not warranted based on continuity of symptomatology. The preponderance of the evidence is therefore against the claim of service connection for bilateral hearing loss. Consequently, the benefit-of-the-doubt rule does not apply and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral hearing loss is denied. REMAND After having carefully considered the matter, and for reasons expressed immediately below, the Board believes that the issue of entitlement to service connection for tinnitus must be remanded for further development. In his initial claim for service connection (VA Form 21-526, Application for Compensation and/or Pension), the Veteran contended his tinnitus was caused by exposure to excessive noise in service. He also claimed that frequently after his shift he would have ringing sounds in his hears for awhile. STRs show no report or finding of tinnitus; however, VA has essentially conceded that the Veteran was exposed to excessive noise in service. With regard to current disability, the Veteran contends he has had ringing in his ears since service. The Board notes that he is competent to testify as to observable symptoms such as ringing in his ears, and tinnitus is the type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). Thus, there is sufficient evidence of current disability of tinnitus. On a VA examination in September 2010, it was noted that the Veteran currently complained of tinnitus that had an onset of "approximately 1970." The examiner noted that the etiology of tinnitus could not be determined on the basis of available information, without resorting to speculation, and that it was up to the RO to determine whether further non-audiological examination was needed to determine the etiology of tinnitus. The examiner then opined that the Veteran's tinnitus was not caused by or a result of acoustic trauma during military service. For rationale, the examiner acknowledged the Veteran's military noise exposure, but noted that the tinnitus onset was 15 years after military noise exposure, and was not correlated to acoustic trauma during service. The examiner concluded with stating that there was "no evidence the [V]eteran suffered hearing loss or tinnitus secondary to acoustic trauma as the current hearing loss is consistent with normal aging. The Court has held that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Steel v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board also notes that once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). After reviewing the 2010 VA examination report, the Board concludes that such examination/opinion is inadequate with regard to the Veteran's claim for service connection for tinnitus, and that another is warranted. In this regard, the VA examiner opined that the Veteran's tinnitus was not caused by or a result of acoustic trauma during service, noting that his tinnitus onset was 15 years after military noise exposure. The problem with this opinion is that it is based on an inaccurate rationale. In this regard, the Veteran contends, and has contended since his initial claim was filed in June 2010, that his tinnitus had an onset in service. In his most recent statement, submitted in June 2012, he reiterated that his tinnitus first surfaced when he was in service. The Veteran's wife also indicated that he often commented on the ringing in his ears in service. It is unclear why there was a discrepancy in the report of the onset of tinnitus being in the 1970s on the VA examination report - although it appears this may be related to the Veteran's contentions that he was seen by a private physician in the 1970s for his hearing loss and tinnitus. In any event, the Board finds that this matter should be remanded in order to obtain a supplemental VA opinion. The Board again acknowledges that the Veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); Jandreau v. Nicholson, supra; Buchanan v. Nicholson, supra. The Veteran is competent to report that he has had ringing in his ears since service. However, the resolution of issues which involve medical knowledge, such as the diagnosis of a disability and the determination of medical etiology, require professional evidence. See Espiritu v. Derwinski, supra. As a lay person, the Veteran cannot provide a medical link between his reported in-service noise exposure and tinnitus. Thus, on remand, the VA examiner should be advised as to the Veteran's competency to report the presence of symptoms (ringing in the ears since service), and should be asked to render an opinion, with supporting rationale, as to whether his tinnitus may be related to noise exposure in service. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Forward the Veteran's entire claims folder to the audiologist who examined him and prepared the September 2010 VA examination report, for a supplemental opinion. If the prior examiner is not available, arrange for the Veteran's claims folder to be sent to another appropriate examiner in order to render the opinions requested. The entire claims folder must be made available to the person designated to examine the Veteran, and the examination report should reflect consideration of the Veteran's documented medical history and assertions. a. The examiner should be reminded that the Veteran's exposure to excessive noise in service has been conceded, and should also be made reminded of the Veteran's competency to report on the presence of symptoms (i.e., ringing in the ears), and his contention that his tinnitus/ringing in his ears started in service and has continued to the present. b. The examiner is requested to review the record and provide an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that the Veteran's tinnitus had its onset in service or is causally related to excessive noise exposure in service, or whether such onset or causation is unlikely (i.e., less than a 50-50 probability). If the examiner is unable to provide the requested opinion without examining the Veteran, arrange for him to undergo an appropriate VA examination, to obtain the requested medical opinion noted above. c. The examiner must explain the rationale for any opinions given. If any opinion requested above cannot be rendered on a medical or scientific basis without invoking processes relating to guesswork or judgment based upon mere conjecture, the examiner should clearly and specifically so specify, along with an explanation as to why that is so. 2. Once the above-requested development has been completed, the claim for service connection for tinnitus must be readjudicated. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claims for benefits. The Veteran and his representative should be given an opportunity to respond to the SSOC. The case must then be returned to the Board for further consideration, if otherwise in order. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). He has the right to submit additional evidence and argument on the matter that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs