Citation Nr: 1301926 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 11-22 733 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana 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 E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from June 1951 to June 1953. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. Jurisdiction is currently with the RO in Indianapolis, Indiana. In his August 2011 substantive appeal, the Veteran requested a local hearing before a member of the Board, but withdrew his request in September 2011. 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). FINDINGS OF FACT 1. The Veteran's bilateral hearing loss did not have onset in service or within one year of service and was not caused by or otherwise related to the Veteran's active service. 2. The Veteran's recurrent tinnitus did not have onset in service and was not caused by or otherwise related to the Veteran's active service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in or aggravated by service and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The Veteran's tinnitus was not incurred in or aggravated by service and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the 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 extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. 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 appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. Initially, the Board notes that the Veteran's service treatment records are missing and presumed destroyed in the 1973 fire at the National Personnel Records Center. The Board finds that additional efforts to obtain these records would be futile. See 38 U.S.C.A. § 5103A(b)(3). The Board has considered the U.S. Court of Appeals for Veterans Claims (Court) statement in Washington v. Nicholson, 19 Vet. App. 362, 371 (2005) that: [I]n cases where, as here, the appellant's SMR's have been lost or destroyed, the Board's obligation to provide well reasoned findings and conclusions to evaluate and discuss all of the evidence that may be favorable to the appellant, and to provide an adequate statement of the reasons or bases for its rejection of such evidence is heightened. The Board has undertaken its analysis with this heightened duty in mind. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires 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 Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). 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) (2012). Certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.307, 3.309 (2012). A "hearing loss" disability is defined for VA compensation purposes with regard to audiologic testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385 (2012). For 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 of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies of 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. Id. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran is seeking entitlement to service connection for bilateral hearing, which he attributes to acoustic trauma in service. As noted above, the Veteran's service treatment records and DD-214 are unavailable and presumed destroyed; however, the Veteran has submitted copies of military records showing his military occupational specialty (MOS) to be an Anti-aircraft Artillery Gun Crewman. Accordingly, based on the Veteran's MOS, exposure to acoustic trauma in service is conceded. Post-service, there is no evidence of complaints or treatment for hearing loss or tinnitus until the Veteran filed his current claim in December 2009. In a December 2009 Statement in Support of Claim, the Veteran appears to claim that he first observed diminished hearing acuity and ringing in his ears beginning in service and that these conditions have continued since that time, progressively worsening. However, at an April 2010 VA examination, the Veteran reported that he had only experienced tinnitus for the "past several years", which appears to contradict his early assertions. At his examination, the Veteran described in-service noise exposure from firing 90mm cannons while serving as a cannoneer. Post-service, he reported noise exposure from construction and concrete work. Puretone thresholds in the left ear at 500, 1,000, 2,000, 3,000, and 4,000 Hertz are 65, 80, 105, 105+, and 105+ decibels. Puretone thresholds in the right ear at 500, 1,000, 2,000, 3,000, and 4,000 Hertz were 60, 70, 85, 100, and 105+ decibels. Speech recognition scores were 48 percent in the right ear and 20 percent in the left ear. Thus the Veteran meets the criteria for a hearing loss disability under 38 C.F.R. § 3.385. However, the VA examiner concluded that the Veteran's bilateral hearing loss and tinnitus are less likely than not caused by or a result of acoustic trauma in service. The examiner indicated that she based her conclusions on her clinical experience and expertise as an audiologist, consideration of the current audiometric findings, considerations of the Veteran's duties and the duration of his service, and consideration of the Veteran's occupational noise exposure and the duration of his employment. Although the examiner does a poor job of clearly articulating her reasoning, it appears that she compared the Veteran's relatively brief period of service with his lengthy post-service period of occupational noise exposure and concluded that it was more likely the Veteran's current hearing loss and tinnitus were caused by post-service noise exposure or other non-service related factors. In his May 2010 notice of disagreement, the Veteran claims that he worked as a concrete finisher after service and that this job did not involve any acoustic trauma. However, not only does this contradict his report to the VA examiner that he had post-service occupational noise exposure from construction work and work with concrete, but a print-out from a career website listing the duties of cement masons and concrete finishers associated with the Veteran's claims folder suggests that the Veteran is downplaying the noise exposure associated with his post-service career duties as these jobs are often performed at construction sites and involve exposure to and use of power tools, truck engines, and heavy machinery. Based on all the above evidence, the Board concludes that entitlement to service connection for bilateral hearing loss and tinnitus is not warranted. While it is conceded that the Veteran was likely exposed to loud noise based on the nature of his military duties, the preponderance of the evidence supports a finds that this in-service noise exposure did not cause the Veteran's current hearing loss and tinnitus. As an initial matter, the Board notes the almost sixty year period between the Veteran's separation from service and the date he filed his claim for disability benefits during which there is no evidence of any complaints of or treatment for bilateral hearing loss or tinnitus. 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). The lengthy period of time between the Veteran's in-service noise exposure and any evidence of a hearing loss disability strongly suggests the Veteran's disability began many years after service. While the Veteran appeared to assert in his December 2009 claim that his hearing loss and tinnitus had onset in service, he told the April 2010 VA examiner that his tinnitus had onset several years ago. While the Board appreciates that the Veteran's advanced age and the many decades that have passed since service may make it difficult to recall details about his service and the onset of his claimed disabilities, his inconsistencies undermine the probative value of his testimony. See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995)( Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). Additionally, while the Veteran may sincerely believe that his current hearing loss and tinnitus are related to service, he has not demonstrated that he has any knowledge or training in determining the etiology of such conditions. In other words, he is a layman, not a medical expert. The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding. Id. In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the Veteran seeks to offer etiology opinions rather than provide diagnoses, the reasoning expressed in Jandreau is applicable. The Board finds that the question of whether the Veteran currently has hearing loss and tinnitus due to his alleged noise exposure in service is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. Rather it is common knowledge that such relationships are the subject of extensive research by scientific and medical professionals. Hence, the Veteran's opinion of the etiology of his current disabilities is not competent evidence and is entitled to low probative weight. The Board gives greater weight to the opinion of the April 2010 VA examiner, who concluded that it is less likely than not that the Veteran's disabilities are related to acoustic trauma in service. Although the Veteran's representative appears to suggest in his December 2012 brief that the examiner failed to consider the Veteran's medical history in reaching her decision, it appears that the examiner accepted as credible the Veteran's accounts of noise exposure in service-she simply concluded that it was unlikely given all the evidence of record that this noise exposure is the cause of the Veteran's current hearing loss and tinnitus. For all the above reasons, entitlement to service connection for bilateral hearing and tinnitus is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify was satisfied by a letter sent to the Veteran in December 2010. This letter informed the Veteran of what evidence was required to substantiate his claim, as well as of VA and the Veteran's respective duties for obtaining evidence. The Veteran was also informed of how VA assigns disability ratings and effective dates. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records, as well as VA treatment records. A formal finding was made that no records from the Social Security Administration (SSA) are available. The appellant was afforded a VA medical examination in April 2010. The examination is adequate and probative for VA purposes because the examiner relied on sufficient facts and data, provided a rationale for the opinion rendered, and there is no reason to believe that the examiner did not reliably apply reliable scientific principles to the facts and data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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, 16 Vet. App. 183 (2002). ORDER Entitlement to service connection for bilateral hearing loss 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