Citation Nr: 1302126 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 12-06 365 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Saira Spicknall, Counsel INTRODUCTION The Veteran served on active duty from October 1942 to September 1943. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Providence, Rhode Island Department of Veterans Affairs (VA) Regional Office (RO). A review of the Virtual VA paperless claims processing system reflects that additional records have not been added to the present appeal. 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 issue of service connection for tinnitus is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDING OF FACT The probative lay and medical evidence of record reflects that the Veteran's currently diagnosed hearing loss did not originate in service or for many years thereafter and is not related to any incident during active service. CONCLUSION OF LAW The criteria for the establishment of service connection for hearing loss are not met. 38 U.S.C.A. §§ 1110, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act (VCAA) The VCAA, codified, in part, at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. § 3.159 (2012). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (2012). The United States Court of Appeals for Veterans Claims (Court) held in Pelegrini v. Principi, 18 Vet. App. 112 (2004) that to the extent possible the VCAA notice, as required by 38 U.S.C.A. § 5103(a) (West 2002), must be provided to a claimant before an initial unfavorable decision on a claim for VA benefits. Pelegrini, 18 Vet. App. at 119-20; see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Prior to the initial adjudication of the Veteran's claim for service connection in the April 2011 rating decision, he was provided notice of the VCAA in January 2011. The VCAA letter indicated the types of information and evidence necessary to substantiate the claim, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records. The Veteran also received notice in January 2011, pertaining to the downstream disability rating and effective date elements of his claim, and was furnished a statement of the case in June 2011 with subsequent readjudication in an October 2012 supplemental statement of the case. Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also Mayfield and Pelegrini, both supra. All relevant evidence necessary for an equitable resolution of the issues on appeal has been identified and obtained, to the extent possible. The evidence of record includes service treatment records, private medical records, an adequate VA examination and statements from the Veteran and his representative. The Board notes that the February 2011 VA examination reports reflect that the examiner reviewed the Veteran's past medical history, documented his current medical condition, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record, and with supporting rationale. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). Consequently, the Board concludes that the medical examination is adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Board observes that the Veteran was provided a VA audiology examination in February 2011 pursuant to his claim for service connection. This VA audiology report indicates that the VA examiner was a licensed audiologist. Also, the report shows that the VA examiner elicited information from the Veteran concerning his history, subjective complaints and the functional effects of his disability, which was all that the applicable provisions of 38 C.F.R. §§ 4.1, 4.2, 4.10, require. Martinak v. Nicholson, 21 Vet. App. 447, 445 (2007). Moreover, the objective data that are detailed in the February 2011 VA examination report was based on audiometric testing at the applicable frequencies and the CNC Maryland speech discrimination test; and as such, they represent the actual evaluation results of the Veteran's participation in that clinical study. Hence, the Board finds that the February 2011 VA audiology examination report may be accepted as adequate to determine the current disabling factors of the Veteran's hearing loss, without further examination. See 38 C.F.R. §§ 3.159(c) (4), 3.326 (2012). Therefore, a remand is not warranted. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran has not indicated that he has any further evidence to submit to VA, or which VA needs to obtain. There is no indication that there exists any additional evidence that has a bearing on this case that has not been obtained. The Veteran and his representative have been accorded ample opportunity to present evidence and argument in support of his appeal. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2012). Pertinent Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disorder on a direct basis, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the 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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection will also be presumed for certain chronic diseases, including sensorineural hearing loss, if manifested to a compensable degree within one year after discharge from service. 38 U.S.C.A. § 1112; 38 C.F.R §§ 3.307, 3.309. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. § 1113. The determination as to whether the requirements for service connection are met is based on an analysis of all of the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 3.303(a) (2012). See Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). See Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). If the Board determines that the preponderance of the evidence is against the claim, then it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule will not be applicable. Ortiz, 274 F.3d at 1365. With regard to VA examinations, the Board notes that the most recent examination is not necessarily and always controlling; rather, consideration is given not only to the evidence as a whole but to both the recency and adequacy of examinations. See Powell v, West, 13 Vet. App. 31, 35 (1999). Analysis In statements presented throughout the duration of the appeal, the Veteran has maintained that his current bilateral hearing loss is related to his active service. Service treatment records reflect that a report of physical examination and induction was performed in October1942, with whisper voice test findings of 20/20 in the right and left ears. The Character of Discharge form reflects that the Veteran's occupation upon enlistment was that of a truck driver, his army specialty was that of a baker and his physical condition when discharged was noted as "poor." There was no evaluation of the ears or hearing at the time of the Veteran's separation from service. In a February 2011 VA examination, the Veteran reported that he had difficulty hearing in adverse listening conditions. The examiner noted the Veteran's military occupational specialty (MOS) was that of a truck driver and the Veteran reported he had difficulty driving trucks and was transferred from truck driver to baker. The Veteran's history of military, occupational and/or recreational noise exposure included working as a baker and at the post office. He reported that the post office was fairly noisy and estimated he worked there for 15 to 25 years. He denied any recreational noise exposure. Audiometric testing revealed that the hearing threshold levels in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 35 45 65 85 LEFT 20 20 20 50 75 The average puretone threshold was 57.5 decibels for the right ear and 41.25 for the left. Maryland CNC speech recognition scores were 68 percent in right and 85 percent in the left. The examiner diagnosed the Veteran with asymmetrical sensorineural hearing loss with right ear worse than left ear. The Veteran was found to have with mild to severe sensorineural hearing loss of the right ear and moderate to severe sensorineural hearing loss of the left ear. The examiner found that the Veteran may have difficulty in adverse listening environments and that physical and sedentary employment was possible if an employer would make reasonable accommodations to create a safe work environment, given the Veteran's current level of disability. The current impact on occupational activities included hearing difficulty. The examiner opined that he could not resolve the issue of whether the Veteran's hearing loss was due to military noise exposure without resorting to mere speculation. In so finding, the examiner explained that there was no hearing test in the Veteran's service treatment records upon separation from the Army. He also noted that the enlistment physical showed 20/20 whispered voice. The examiner concluded that, since there was no hearing test upon separation and the Veteran was medically discharged after 11 months in service, one must resort mostly to speculation to resolve this case. After a review of the record, the Board concludes that entitlement to service connection for hearing loss is not warranted. While the Veteran's has a current diagnosis of hearing loss, it was not shown in service or for many years thereafter, and there is no probative medical evidence of an opinion relating the Veteran's hearing loss to his military noise exposure. The service records do not indicate that the Veteran was exposed to excessive noise or acoustic trauma during his active service, although his MOS's in service included that of a truck driver and baker. In addition, the Board notes that the service treatment reports are absent of any complaints of or treatment for hearing loss at any time during his active service. The October 1942 report of physical examination and induction revealed whisper voice test findings of 20/20 in the right and left ears and subsequent service treatment reports are absent of any findings related to any hearing problems. While the September 1943 Character of Discharge form revealed that the Veteran's physical condition when discharged was noted as "poor," there was no evaluation of the ears at that time. Thus, the evidence does not demonstrate that the Veteran's hearing loss had its onset during his active service. The Board acknowledges the Veteran's statements asserting that his hearing loss is related to military noise exposure from his active service and that he was exposed to excessive noise in service. The Veteran is competent to attest to the exposure to excessive noise in service and these particular statements are competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). However, he is not competent to specify that a current hearing loss disability is related to any noise exposure during his active service, as this would constitute an audiological conclusion which he is not competent to make. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992) (a lay person is not competent to render an opinion regarding the diagnosis or etiology of a disease or injury; however, a lay witness can provide and "eye-witness" account of the visible symptoms). The lay statements presented throughout the duration of the appeal also do not provide any lay evidence of a continuity of symptoms of hearing loss since active service. The post-service medical evidence of record does not demonstrate hearing loss disability until the February 2011 VA examination, approximately 68 years after the Veteran's discharge from active service. Therefore, the record evidence indicates no showing that the Veteran's hearing loss disability was manifested to a compensable degree within a year following service for purposes of presumptive service connection. 38 C.F.R. §§ 3.307, 3.309. There is also no competent medical evidence of a link between the Veteran's current hearing loss disability and his active duty service. In this regard, the Board observes that the February 2011 VA examiner, while furnishing an adequate opinion as noted above, found that opined that he could not resolve the issue of whether the Veteran's hearing loss was due to military noise exposure without resorting to mere speculation. In so finding, the examiner provided a rationale, explaining that there was no hearing test in the Veteran's service treatment records upon separation from the Army, the enlistment physical showed 20/20 whispered voice and that, since there was no hearing test upon separation and the Veteran was medically discharged after 11 months in service, one must resort mostly to speculation to resolve this case. Moreover, again, there is no objective medical evidence of hearing problems until approximately 68 years after the Veteran's period of service. Therefore, as there is no probative evidence of a nexus between the Veteran's active service and his currently diagnosed hearing loss, the preponderance of the evidence is against a finding that the Veteran's current hearing loss is related to his active military service. As such, the claim for service connection for hearing loss is denied. In reaching the conclusion above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for service connection for hearing loss, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for hearing loss is denied. REMAND Although the Board regrets any further delay in adjudicating the Veteran's claims, pursuant to the duty to assist, the issue of service connection for tinnitus must be remanded for further development. In the February 2011 VA examination, it was noted that the Veteran did not have a current complaint of tinnitus and the last episode of tinnitus was last week. He described a pulsatile tinnitus in the right ear that sounded like his pulse and was noted on occasion when it was quiet. The examiner concluded that the etiology of tinnitus could not be determined on the basis of available information without resorting to speculation. Once VA undertakes the effort to provide an examination with respect to a claim of entitlement to service connection, whether or not statutorily obligated to do so, the duty to assist requires that it be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate when it contains clear conclusions with supporting data and a reasoned medical explanation or analysis. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In considering that the VA examiner did not provide any supporting data or reasoned explanation or analysis as to why the etiology of tinnitus could not be determined without resorting to mere speculation, this opinion is inadequate. Therefore, the case must be remanded for additional development to include obtaining a supplemental medical opinion. 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. The AMC/RO should return the case to the audiologist who wrote the February 2011 opinion, or, if this examiner is not available, the claims filed should be forwarded to a similar specialist, to review the claims file. The claims file, to include a copy of this remand, must be made available prior to completion of the evaluation. The examiner must annotate the examination report to indicate review of pertinent evidence in the claims file. Please note: The Veteran is considered competent to report his history of noise exposure in service. Also, due to the subjective nature of [tinnitus], the veteran, as a layperson is competent to testify as to his symptoms. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995). The examiner is then asked, to furnish an opinion with respect to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed tinnitus: (i) had its onset during his period of active duty from October 1942 to September 1943; or, (ii) that such disorder was caused by any incident or event that occurred during such period (i.e. acoustic trauma from noise exposure). Please explain the reasons for any opinions rendered and include a discussion of the relevant evidence. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. If an opinion cannot be expressed without resort to speculation, discuss why such is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. 2. Following completion of the foregoing, the AMC/RO must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, the AMC/RO should determine whether the examiner has responded to all questions posed. If not, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2012). 3. After the requested development has been completed, the AMC/RO should readjudicate the merits of the Veteran's claim based on all the evidence of record, including any additional information obtained as a result of this remand. If the benefits sought on appeal remain denied, the Veteran and his representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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). ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs