Citation Nr: 1302104 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 10-17 217 ) 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: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran had active service from November 1966 to July 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board notes that in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. Competent and credible medical and lay evidence reflects that the Veteran's left ear hearing loss is the result of excessive noise exposure during active duty service. 2. Right ear hearing loss was not manifested during service, sensorineural right ear hearing loss was not exhibited within the first post service year, and current right ear hearing loss is not otherwise related to the Veteran's active service. 3. Competent and credible medical and lay evidence reflects that the Veteran's tinnitus is the result of excessive noise exposure during active duty service. CONCLUSIONS OF LAW 1. With resolution of the benefit of the doubt in the Veteran's favor, the criteria for establishing service connection for left ear hearing loss have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303, 3.385 (2012). 2. The criteria for establishing service connection for right ear hearing loss have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303, 3.385, 3.307, 3.309 (2012). 3. With resolution of the benefit of the doubt in the Veteran's favor, the criteria for establishing service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002 & Supp. 2012)); see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a) (2012), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In Pelegrini v. Principi, 17 Vet. App. 412 (2004), the United States Court of Appeals for Veterans Claims (Court) held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In November 2008, a VCAA letter was issued to the Veteran with regard to his claim of service connection. The letter notified the Veteran of what information and evidence is needed to substantiate his claims, what information and evidence must be submitted by the claimant, what information and evidence will be obtained by VA, and the evidence necessary to support a disability rating and effective date. Id.; but see VA O.G.C. Prec. Op. No. 1-2004 (Feb. 24, 2004); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Board also finds that VA has complied with all assistance provisions of VCAA. The evidence of record contains the Veteran's service treatment and personnel records, records regarding the facts and circumstances surrounding the Veteran's discharge from service, post-service VA outpatient treatment records, and lay statements of the Veteran. There is no indication of relevant, outstanding records that would support the Veteran's claim. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3). In May 2009, the Veteran was afforded a VA audiological examination, and an etiological opinion was proffered. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board also requested an expert medical opinion in September 2012, and such opinion by a VA Chief of Audiology and Speech Pathology was received in November 2012. For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the hearing loss and tinnitus issues in appellate status. Criteria & Analysis Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1133; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995 opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. 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 of 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; see also Hensley v. Brown, 5 Vet. App. 155 (1993). The lack of any evidence that the Veteran exhibited hearing loss during service 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. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, as noted by the Court: [W]here the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post- service test results meeting the criteria of 38 C.F.R. § 3.385....For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a brief of the VA Secretary). During service, the Veteran underwent audiometric examinations at enlistment and in May 1967. In an enlistment report of medical history, the Veteran endorsed currently or previously having hearing loss, but denied a history of ear trouble or running ears. A physician's summary elaborated that audiometric testing was done and revealed normal hearing. The Board notes that prior to November 1967, service departments used ASA units to record puretone sensitivity thresholds in audiometric measurement. VA currently uses ISO (ANSI) units. For purposes of comparison between the service audiometric data and more recent VA audiometric data, the table below shows the ASA measurements recorded in service, with the comparable ISO (ANSI) measurements in adjacent parentheses. The results are recorded as follows: HERTZ Date Ear 500 1000 2000 3000 4000 Add (15) (10) (10) (10) (5) October 1966 (Enlistment) RIGHT 0 (15) 0 (10) 0 (10) N/A 0 (5) LEFT 0 (15) 5 (15) 0 (10) N/A 0 (5) May 1967 RIGHT 10 5 0 15 10 LEFT 45 50 55 75 75 After the May 1967 audiological consultation, the diagnosis was advanced hearing loss, considered by the medical officer to be temporary. The Veteran was put on a temporary profile, limiting his assignments to those that did not involve habitual or frequent exposure to loud noises or firing of weapons. In an April 1968 examination for confinement purposes, reported medical history included right sided otitis media, and physical examination findings included scarred tympanic membranes bilaterally. In June 1968 he was seen for a right ear ache. In a June 1968 discharge report of medical history, the Veteran stated that his ears were "bad" and endorsed having ear, nose, or throat trouble; and running ears. Audiometric testing was not performed on discharge examination in June 1968; however, hearing acuity based on whispered voice testing was reported as 10/15 bilaterally. Service records list his military occupational specialty as rifleman. Post-service VA treatment records dated from May 2008 to March 2009 were silent for complaints, evaluation, or treatment for hearing problems or tinnitus. During a July 2008 gastroenterology visit, he indicated that he retired after 20 years as a truck driver. During a May 2009 VA audiological examination, the Veteran described pre-service noise exposure from part-time work on a dairy farm around milking machines and open cab tractors, military noise exposure to mortars and guns without the use of hearing protection, post-service occupational noise exposure as a truck driver for 37 years; and recreational use of his motorcycle without hearing protection. He described an onset of right ear tinnitus in service with four to five episodes per year, each lasting a few hours. Audiometric testing revealed bilateral hearing loss for VA compensation purposes. The diagnosis was sensorineural hearing loss. After reviewing the claims file and medical literature and examining the Veteran, the audiologist opined that the Veteran's hearing loss and tinnitus were less likely as not caused by or a result of acoustic trauma during service. The audiologist observed that the entrance and separation evaluations were within normal limits; however, there was one full diagnostic evaluation administered in 1967 that suggested a mild to severe degree of hearing loss in the left ear only. The audiologist explained that the thresholds found in the left ear today were significantly better than those captured in 1967 and would suggest that his loss at that time was a temporary threshold shift that had since recovered. Furthermore, the 1967 report stated that the Veteran had not had any recent exposure to loud noises at the time the evaluation was administered. The examiner further noted that the Veteran reported trouble with his ears both in entrance and separation paperwork, which correlated to his current case history report of having trouble since childhood, and not specifically due to anything secondary to acoustic trauma. The audiologist commented that one could not rule out contributions from aging and the Veteran's civilian occupational noise exposure when evaluating his current audiogram. Given the foregoing, the audiologist stated that he could not be more than 50 percent certain that the Veteran's hearing loss was directly caused by or a result of military acoustic trauma. Additionally, his tinnitus was not documented as being present in his service treatment records and special considerations were not granted in that he was actively involved in combat. In September 2012, the Board requested an expert medical opinion from a VA audiologist regarding the etiology of the Veteran's current bilateral hearing loss and tinnitus. The Board conceded that the Veteran was exposed to acoustic trauma during military service and pointed out that the statement by the May 2009 VA examiner that the Veteran's entrance and separation evaluations were within normal limits was incorrect because audiometric testing was not conducted at separation. In November 2012, a VA Chief of Audiology and Speech Pathology outlined his review of the claims file. He opined that a significant hearing loss in the left ear was identified in May 1967 and is as least as likely as not due to military noise exposure. He further opined that the reported tinnitus is as least as likely as not a symptom of and associated with the existing hearing loss. The audiologist observed that the conflicting findings of normal hearing at separation are due to the test protocol used: whispered word testing, which is not frequency-specific and does not isolate one ear from the other. Regarding the right ear, the audiologist opined that the hearing in the right ear was adequate enough [during service] to conclude that the Veteran's hearing was normal. Resolving all doubt in favor of the Veteran, the Board finds that the Veteran's current left ear hearing loss and tinnitus are related to acoustic trauma during military service. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's service treatment records document a left ear hearing loss in May 1967 that was not present at enlistment, and the Veteran reported an onset of tinnitus, which he is competent to identify, in military service that continued to the present time. In addition, the favorable opinions by the November 2012 VA audiologist are persuasive evidence in support of the claim for service connection for left ear hearing loss and tinnitus because they were based on a thorough review of the claims file and supported by an articulated medical rationale that is consistent with the record, which shows left hearing loss in service consistent with the Veteran's military duties as a rifleman. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value to a medical opinion). Moreover, the Board notes that the May 2009 VA examiner's conclusion that he could not be more than 50 percent certain that current hearing loss was caused by or a result of military acoustic trauma suggests that he was 50 percent certain that the current hearing loss was related to the left ear hearing loss documented during military service. Accordingly, service connection for left ear hearing loss and tinnitus is warranted. However, unlike the left ear, which showed a dramatic shift in hearing acuity between entrance and audiometric testing in May 1967, service treatment records are negative for right ear hearing loss or perceived right ear hearing loss. The Veteran's complaint of "bad ears" at discharge was non-specific, and it is unclear whether he was referring to his history of right sided otitis media, scarred tympanic membranes bilaterally, a right ear ache, or the left ear hearing loss documented in May 1967. While the lack of in-service findings of complaints or diagnosis of right ear hearing loss in service does not preclude a finding of service connection, right ear hearing loss was not shown until May 2009, thus over 40 years after separation from service. The Board finds an absence of any subjective complaints of right ear hearing loss for decades after discharge from service or of persistent symptoms of right ear hearing loss between service-discharge and his 2008 claim, and an absence of any objective evidence of hearing loss for over 40 years after discharge from service. The lack of any evidence of continuing hearing loss for many years between the period of active duty and the initial findings or documented complaints of right ear hearing loss weighs against the claim. A prolonged period without medical complaint can be considered, along with other factors concerning the claimant's health and medical treatment during and after military service, as evidence of whether a disability was incurred in service or whether an injury, if any, resulted in any chronic or persistent disability which still exists currently. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). In addition, the Board finds persuasive the May 2009 VA examiner's conclusion that aging and civilian occupational noise exposure contributed to the Veteran's hearing loss and accepts the examiner's opinion as being the most probative medical evidence on the subject, as such was based on a review of all historical records, and contains detailed rationale for the medical conclusion. See Boggs v. West, 11 Vet. App. 334 (1998). Here, the examiner opined that it was less likely as not that hearing loss was caused by or a result of military acoustic trauma. The examiner's observation that audiometry in 1967 suggested a "mild to severe degree of hearing loss in the left ear only" supports the conclusion. There is also no contrary opinion of record, and the November 2012 VA opinion regarding the right ear appears to be consistent with that the of May 2009 VA examiner. The Board has considered the Veteran's contention that a relationship exists between his current hearing loss, and his noise exposure experienced during service. In adjudicating this claim, the Board must assess the Veteran's competence and credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court emphasized that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge. See also 38 C.F.R. § 3.159(a)(2) (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). In this capacity, the Board finds the Veteran is competent to attest to his noise exposure he experienced during service, and finds his statements of noise exposure credible based on his experiences of serving as a rifleman. The Board concedes that the Veteran had noise exposure during his military service. However, the Veteran is not competent to provide an opinion that his current right ear hearing loss is due to his in-service noise exposure as he does not have the requisite medical expertise. Although it is conceded that he had noise exposure during service, the fact remains that his right ear hearing acuity was normal during service, including when evaluation in May 1967 found a significant left ear hearing loss. The VA audiologists were aware of the Veteran's in-service noise exposure per the Veteran's statements and review of the claims folder, but concluded that his right ear hearing loss was not due to service. The Veteran's contentions are outweighed by the medical evidence and opinion of the VA audiologists, which reflect that his right ear hearing loss is not due to noise exposure in service. To the extent the Veteran is claiming that he noticed difficulty hearing since service, he is competent to attest to this. However, it is not a reliable gauge as hearing loss for VA compensation purposes is measured by audiometric findings. See 38 C.F.R. § 3.385. The negative clinical and documentary evidence of right ear hearing loss post service for decades after service is more probative than the remote assertions of the Veteran. The lack of continuity of treatment may bear in a merits determination on the credibility of the evidence of continuity of symptoms by lay parties. Savage v. Gober, 10 Vet. App. 488, 496 (1997). The question involved regarding causation is medical in nature. As discussed above, the medical opinions of the VA audiologists (based on a review of the claims file and with knowledge of the Veteran's in-service duties and in-service complaints) were negative. Under these circumstances, the Board is unable to find that there is a state of equipoise of the positive evidence and negative evidence regarding the claimed right ear hearing loss. The preponderance of the evidence now of record is against the Veteran's claim of service connection for right ear hearing loss. ORDER Service connection for left ear hearing loss is granted, subject to the laws and regulations governing the payment of monetary benefits. Service connection for tinnitus is granted, subject to the laws and regulations governing the payment of monetary benefits. Service connection for right ear hearing loss is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs