Citation Nr: 1302033 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 08-38 190 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral defective hearing. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from June 1957 to June 1960 and from September 1961 to September 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 decision by the RO which denied the benefits sought on appeal. A hearing at the RO before the undersigned was held in January 2012. FINDING OF FACT The preponderance of the evidence demonstrates that the Veteran does not have a hearing loss or tinnitus at present which is related to service. CONCLUSIONS OF LAW 1. Bilateral defective hearing was not incurred in or aggravated by military service nor may any current sensorineural hearing loss be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2012). 2. The Veteran does not have tinnitus due to disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. This must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326. The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in February 2007. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). As to VA's duty to assist, the Board finds that all necessary development has been accomplished and that appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records (STRs), and all VA and private medical records have been obtained and associated with the claims file. The Veteran was examined by VA during the pendency of this appeal, and testified at a hearing at the RO before the undersigned in January 2012. Additionally, the claims file was referred for a Veterans Health Administration (VHA) medical opinion as to the etiology of the Veteran's hearing loss and tinnitus. The Veteran and his representative were provided with copies of the report and allocated additional time to file a response. A response was received in November 2012. The Board finds that the VHA opinion was comprehensive and adequate upon which to base a decision on the merits of the issue on appeal. The examiner reviewed the claims file, addressed the favorable evidence in this case, and provided comprehensive and rational explanation for the conclusions reached. Further, neither the Veteran nor his representative have made the RO or the Board aware of any additional available evidence that needs to be obtained in order to fairly decide this appeal, and has not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009). Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available but not yet part of the claims file. Accordingly, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Service Connection: In General 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; 38 C.F.R. § 3.303(a). Service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Direct service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). Where a veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946 and sensorineural hearing loss is manifest to a compensable degree within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that he still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). Such evidence must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Id. 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." 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Entitlement to service connection for impaired hearing is subject to the additional requirements of 38 C.F.R. § 3.385, which provide: 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 (2012). Additionally, the United States Court of Appeals for Veterans Claims (Court) has held that "the threshold for normal hearing is from 0 to 20 dBs [decibels], and higher threshold levels indicate some degree of hearing loss." See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Medical evidence of a "chronic" disease should set forth the physical findings and symptomatology elicited by examination within the applicable period. 38 C.F.R. § 3.307(b); Oris v. Derwinski, 2 Vet. App. 95, 96 (1992). A chronic disease need not be diagnosed during the presumptive period but characteristic manifestations thereof to the required degree must be shown by acceptable medical and lay evidence followed without unreasonable time lapse by definite diagnosis. 38 C.F.R. § 3.307(c); Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). An important factor in the factual question of reasonableness in lapse of time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) is the difficulty in diagnosing the disability and the strength of the evidence establishing an identity between the disease manifestations and the subsequent diagnosis. A strong evidentiary link tends to ensure the disease is not due to "intercurrent cause" as set forth in 38 C.F.R. § 3.303(b); Cook v. Brown, 4 Vet. App. 231, 238 (1993). The lapse in time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) "is ultimately a question of fact for the Board to address." Bielby v. Brown, 7 Vet. App. 260, 266 (1994). Factual Background & Analysis Initially, it should be noted that the Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by the Veteran or on his behalf. 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 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) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Veteran contends that, as a radio operator and forward observer responsible for calling in firing coordinates during training exercises, he was exposed to acoustic trauma from incoming artillery in service. The Veteran said that he reported the ringing in his ear to medical personnel during service but was told not to worry and that it would go away. He testified that the ringing did resolve after a few weeks, and that he could not recall exactly when it started again "years and years later," but that it had been present for more than 10 years. Concerning the Veteran's contentions, while he is competent to provide information regarding his experiences and symptoms, he is not a medical professional competent to offer an opinion as to the nature or etiology of his claimed bilateral hearing and tinnitus disabilities. Savage v. Gober, 10 Vet. App. 488, 495 (1997). The issue in this case does not involve a simple diagnosis and the Veteran is not competent to provide more than simple medical observations. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) see also Barr v. Nicholson, 21 Vet. App. 303 (2007). In this regard, the Board notes that while the Veteran reported that he experienced some tinnitus in service, he testified that it resolved and that he did not notice any tinnitus symptoms until many years after service. As detailed below, it is also the Veteran's contention that he is unsure of the onset of his hearing loss but it was noticeable approximately 10 years ago. Thus, the Veteran does not contend that he has experienced tinnitus and hearing loss symptoms continuously ever since service. Consequently, a continuity of symptomatology is neither raised by the medical evidence of record nor the lay evidence of record. In such case, nexus evidence provided by a medical expert is required to substantiate the claim as whether any current hearing loss and tinnitus is etiologically related to in-service noise exposure involves a complex medical question. Thus, the Board finds that the Veteran's contentions to the extent they are construed as nexus evidence are accorded no evidentiary weight. Historically, the Veteran's service records showed that his military occupation specialty was in radio communications. Given the Veteran's military duties and assignments, the Board finds that noise exposure is established by the record. The service treatment records (STRs) for both periods of service from 1957 to 1960 and from 1961 to 1964, showed no complaints, treatment, abnormalities or diagnosis for any ear problems, tinnitus or hearing loss during service. The Veteran's enlistment examination in June 1957, showed his hearing acuity for whispered voice was 15/15, bilaterally. No audiological findings were reported on his separation examination in June 1960. Parenthetically, the Board notes that on a Report of Medical History in June 1960, the Veteran checked the box indicating a history of an ear, nose, or throat problem. However, the Veteran did not elaborate on the specific problem, and no pertinent abnormalities or explanation for the notation was indicated in the examination report. On his enlistment examination for his second period of service in September 1961, the Veteran denied any history of ear problems and no pertinent abnormalities were noted on examination. Audiological findings, as converted to ISO units currently in effect, at that time were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 15 - 10 LEFT 20 15 15 - 10 (NOTE: Prior to November 1967, service department audiometric results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). The above audiological findings have been converted to the ISO standard.) Audiological findings, as converted to ISO units currently in effect, on the Veteran's service separation examination in September 1964 were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 5 - 5 LEFT 20 10 0 - 5 When examined by VA in March 2007, the Veteran reported he was unsure of when the hearing loss began and reported a gradual onset of hearing loss and a long history of tinnitus, but said that he could not recall any specific acoustic event that precipitated its onset. The Veteran reported that he was exposed to artillery fire and that he worked in radio communications during service. Audiometric findings on examination were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 15 30 40 LEFT 15 20 15 25 45 Speech discrimination was 94 percent in the right ear and 98 percent in the left ear. The diagnosis was mild to moderate sensorineural hearing. The examiner noted that the Veteran was not given a hearing test at separation from his first period of service but he had normal hearing on his enlistment and separation examinations for his second period of military service. The examiner maintained that since the Veteran's Army physicals occurred later than his Marine Corps service, it was the examiner's opinion that he did not have hearing loss due to noise exposure in the Marine Corps. The examiner further maintained that the Veteran's hearing thresholds on enlistment and separation were well within normal limits and did not support the diagnosis of tinnitus. Therefore, the examiner opined that it was not likely that the Veteran's current bilateral hearing loss and tinnitus were due to noise exposure in the Marine Corps. The favorable evidence in this case consists of a handwritten letter from a VA physician, dated in August 2007, and a medical opinion from a private audiologist, dated in November 2011. The letter from the VA physician indicated that the Veteran was exposed to loud military noise while serving in the artillery, and that his documented hearing loss was related to military service. The report from the private audiologist included a description of the Veteran's exposure to loud military noise from various duty assignments in service, and a self-reported history of a gradual loss of hearing over the past 10 years with hearing aids obtained in 2007, and constant ringing in the ears for approximately 10 years. The diagnoses were sensorineural hearing loss and tinnitus. The audiologist opined that it was at least as likely as not that the Veteran's current hearing loss and tinnitus were due to excessive noise exposure in service. At the direction of the Board in July 2012, the claims file was referred for a VA expert medical opinion. In August 2012, the claims file was reviewed by a certified VA audiologist to determine the etiology of the Veteran's current hearing loss and tinnitus. The audiologist indicated that the claims file was reviewed and included a description of the Veteran's medical and service history. The audiologist noted that hearing loss due to noise exposure is sensorineural in nature, and that permanent sensorineural hearing loss due to noise exposure does not improve over time. He also noted that the Veteran had normal hearing at the time of his enlistment and separation examinations in 1961 and 1964. Therefore, if anything, the Veteran's hearing acuity would have been better during his first period of service from 1957 to 1960, and could not have been worse. With normal hearing at the end of his service in 1964, and with no significant changes in hearing from 1961 to 1964, his claim of tinnitus could not be connected to hearing loss. The audiologist noted that the VA evaluation in 2007 was thorough and correct in the conclusion that the records did not support the claim that the Veteran's hearing loss and tinnitus were service connected. The audiologist maintained that the letter written by a VA physician in 2007 should not be considered as the physician did not mention what evidence he reviewed that led him to this opinion, and without viewing the Veteran's service treatment records, he could not have made an accurate opinion more than 40 years after the Veteran's service. The audiologist also observed that the 2011 report indicated a gradual change in hearing loss occurred over time, and so because the private audiologist did not review the Veteran's service treatment records she could not provide an opinion any more definitively than she did. The VA audiologist concluded that it was not likely that the current bilateral hearing loss and tinnitus had their onset from noise exposure during the Veteran's service in the Marine Corps from 1957 to 1960. Service treatment records indicated normal hearing in 1961 and 1964, both after his first period of service. The VA audiologist noted that if hearing loss had existed in 1960, it would have still been present in 1961. With no changes in his hearing noted, a connection of the tinnitus being due to hearing loss cannot be made. In this case, the Board finds the VHA opinion most persuasive as it was based on a detailed analysis of all of the evidence of record, including the favorable medical opinions. The service representative maintains that the VHA opinion is of less probative value because it was rendered by "an individual with a master's degree" as distinguished from the private audiologist who is a doctor. The Board finds that the VA audiologist is qualified to provide an expert VHA opinion. The audiologist included a detailed discussion of all relevant facts and offered a rational and plausible explanation for concluding that the Veteran's current hearing loss and tinnitus were not related to service as permanent sensorineural hearing loss does not improve over time and hearing thresholds were normal in service. The audiologist essentially disagreed with a delayed onset theory suggested by the 2011 opinion. In contrast, the favorable 2007 VA opinion was wholly conclusory in nature and did not include any discussion or analysis of the facts, or offer any medical basis for the conclusions reached. The Court has held that a medical opinion containing only data and conclusions is not entitled to any evidentiary weight. See Nieves-Rodriguez, 22 Vet. App. 295, 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The opinion was rendered without the benefit of a review of the claims file which contains such relevant facts as service treatment records detailing audiometric data from the Veteran's service. Similarly, the 2011 private opinion is not based on a review of the Veteran's service treatment records which renders the opinion deficient for the same foregoing reason. There is no explanation addressing the normal audiometric findings in service. No sound medical basis is provided for concluding that in-service military noise exposure is responsible for current hearing loss and tinnitus that was not present on audiometric testing in service. For these reasons, the Board does not find these opinions are persuasive. Under these circumstances, the Board finds that reliance upon the VHA opinion is warranted in this case. See Gabrielson v. Brown, 7 Vet. App. 36 (1994). Finally, the Board notes that there was no evidence of any measurable decrease in the Veteran's hearing acuity at any threshold under the guidelines of Hensley in service or within one year of separation from service. On the contrary, the audiometric findings on the Veteran's service separation examination in September 1964, were either the same or better than those recorded at the time of his entrance examination in 1961. Thus, there is no factual basis for a favorable disposition of the Veteran's appeal under the criteria in Hensley. As there is no persuasive, probative medical evidence of record suggesting a connection between the Veteran's current hearing loss or tinnitus and service, and no objective evidence of any complaints or manifestations of a hearing loss or tinnitus until many years after his discharge from service, the record affords no basis to grant service connection. Accordingly, the Board finds that the preponderance of the evidence is against the claims of service connection for bilateral defective hearing and tinnitus. The benefit of the doubt has been considered, but there is not an approximate balance of positive and negative evidence regarding the merits of the issues on appeal. Therefore, that doctrine is not for application in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for bilateral defective hearing is denied. Service connection for tinnitus is denied. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs