Citation Nr: 1302128 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 09-25 589 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for hearing loss of the right ear. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. C. Dale, Counsel INTRODUCTION The Veteran had active service from January 1943 to October 1945, including combat participation in the European Theater of Operations during World War II. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran initially requested a Travel Board hearing on the July 2009 Substantive Appeal. However, prior to scheduling the Veteran for a hearing date, he submitted a September 2011 written statement withdrawing that hearing request. 38 U.S.C.A. § 20.704(d) (2012). The Board remanded the appeal in January 2012 for additional development. In September 2012, the RO awarded service connection for left ear hearing loss. As this rating action results in a full grant of the benefit sought, the issue of service connection for left ear hearing loss is no longer on appeal. A review of the Virtual VA paperless claims processing system does not show any pertinent records that are not already associated with the claims folder. 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 does not have right ear hearing loss that manifested during, or as a result of, active military service. 2. When afforded the full benefit of the doubt, the evidence suggests that the Veteran's bilateral tinnitus manifested during active military service. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C.A. §§ 1110, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012). 2. The criteria for establishing entitlement to service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). As the Board is granting the service connection claim for tinnitus, this issue is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Proper VCAA notice 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 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The record indicates that the Veteran was provided with adequate VCAA notice in April 2008. Specifically, the RO notified the Veteran of information and evidence necessary to substantiate his service connection claims. He was notified of the information and evidence that VA would seek to provide and the information and evidence that he was expected to provide. The duty to notify has been met. The Board further concludes that the duty to assist has also been met. The Veteran's service treatment records and private medical records have been obtained, in addition to various written statements by the Veteran himself. He was afforded an adequate VA examination in January 2012. The Board notes that he identified outstanding Birmingham VA Medical Center (VAMC) records. However, the RO requested these records and received a negative response. The Veteran was informed that these records were not located. VA fulfilled its duty to assist in attempting to obtain these records. The Board also finds that the record reflects substantial compliance with the instructions in the January 2012 Board Remand. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The evidence includes a January 2012 VA audiology examination report and issuance of a September 2012 supplemental statement of case. The Board is satisfied that there was substantial compliance with its remand orders. Id.; See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). There is no indication that there is any relevant evidence outstanding in these claims, and the Board will proceed with consideration of the Veteran's appeal. Relevant Laws and Regulations Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)). Where a Veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and a chronic disorder, such as hearing loss, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in 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. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309 (2012). A layperson is generally not capable of opining on matters requiring medical knowledge, but is competent to report on the onset and continuity of his current symptomatology. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998) (citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder)); see also Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson, 581 F.3d 1313 (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence); Jandreau, 492 F.3d 1372, 1376-77 (a lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as a fall leading to a broken leg). (i) Right ear hearing loss The Veteran contends that service connection for right ear hearing loss is warranted. As explained below, the preponderance of the evidence is against the claim, and it will be denied. The Veteran's service treatment records do not reflect that he complained about hearing loss during active military service. He demonstrated 15/15 hearing upon Whisper Voice testing on his October 1945 separation examination. Here, the Board briefly notes that the Veteran's service records reflect that he was a "cannoner" during the World War II era; he served in Normandy, Ardennes, and Rhineland campaigns, among others. His combat status is conceded and the provisions of 38 U.S.C.A. § 1154(b) have been considered. Hence, his reports about in-service acoustic trauma during combat are probative evidence of an in-service event. Audiograms taken during the appeals period confirm current right ear hearing loss for VA compensation purposes. 38 C.F.R. § 3.385; See June 2008 and January 2012 VA examination reports. A current disability has been shown. The remaining issue is whether there is a nexus to service. Private medical records include several audiometric findings as early as February 1985. The February 1985 audiometric findings in puretone decibel thresholds did not show decreased hearing acuity meeting the definition of VA hearing loss. 38 C.F.R. § 3.385. However, they reflect demonstrated a gradual overall decrease in right ear hearing acuity since February 1985. The Veteran was first afforded a VA audiology examination in June 2008. He described having significant noise exposure during service. The examiner also noted a history of post service occupational noise exposure in agriculture. An audiogram confirmed right ear hearing loss. The examiner diagnosed mild to moderately severe sensorineural hearing loss. She commented that the Whisper Voice test taken at separation was inadequate to confirm high frequency sensorineural hearing loss. However, she maintained that it was less likely that right ear hearing loss was related to service as the Veteran had post service occupational noise exposure. In July 2009, the Veteran clarified that he worked in agriculture, but did not work around heavy equipment on a regular basis. He believed the June 2008 VA examiner misunderstood his post service occupation. The Veteran was afforded a January 2012 VA examination, accompanied by review of the claims folder. Audiometric findings confirmed right ear hearing loss and a Maryland CNC Speech Recognition score of 48 percent for the right ear. The examiner diagnosed sensorineural hearing loss of the right ear. She commented that private medical records showed normal hearing for the right ear in 1985 and 1989. She noted that the Veteran had minimal post service noise exposure, but maintained that the Veteran's right ear hearing loss was not affected by military noise exposure as normal hearing in the right ear was demonstrated as late as 1989. Review of the private audiogram shows that the Veteran normal hearing as defined by VA in February 1985. In his March 1989 audiogram, he demonstrated hearing acuity of 50 decibels at 4000 hertz, which would meet the VA hearing loss criteria. See 38 C.F.R. § 3.385. Nonetheless, the February 1985 audiogram showing normal hearing for the right ear heavily weighs against a finding of a continuity of symptomatology. While the Veteran is competent to describe his right ear symptoms, he is not shown to be a medical professional. The question of whether right ear hearing loss demonstrated many years following separation is related to in-service noise exposure is a complex medical question beyond the capabilities of lay observation. Thus, his assertions of a nexus have no probative value. Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. The competent medical evidence is limited to the January 2012 VA medical opinion. Briefly, the Board notes that June 2008 VA medical opinion was based upon a faulty premise of post service occupational noise exposure and is not for further consideration. The January 2012 VA examiner expressed a negative opinion. She explained that the Veteran demonstrated normal hearing in his right ear after many years following separation. It was relatively recently that he was shown to have right ear hearing loss. The January 2012 VA opinion is based upon complete review of the claims folder, clinical examination, and includes a well reasoned medical opinion. It is uncontroverted by the additional medical evidence and is consistent with prior audiograms showing normal hearing in the right ear in February 1985. The Board finds the January 2012 VA medical opinion to be highly probative and weigh heavily against the claim. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim. The benefit-of-the-doubt doctrine is therefore not applicable and the claim for service connection for right ear hearing loss must be denied. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57. (ii) Tinnitus The Veteran contends that he is entitled to service connection for tinnitus. A review of the record demonstrates that the evidence is in equipoise regarding this issue. As such, affording the Veteran the full benefit of the doubt, the Board finds that service connection is warranted for tinnitus. When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's service treatment records do not reflect that he complained about tinnitus during active military service. As previously noted, his combat status is conceded and the provisions of 38 U.S.C.A. § 1154(b) have been considered. Hence, his reports about in-service acoustic trauma during combat are probative evidence of an in-service event. Although there are conflicting reports as to the date of onset, the Veteran reports that he currently has tinnitus. He is certainly competent to report about the presence of tinnitus. Layno, 6 Vet. App. at 470. Thus, the requirement of a current disability has been demonstrated. The remaining issue is whether there is a nexus to service. Private medical records from February 1985 show that the Veteran had treatment for a left ear infection. An April 1985 comment includes notes that he was feeling better and did not have "roaring in ear." In February 2000, he complained about tinnitus in his left ear associated with an infection. He again complained about tinnitus in November and December 2005. Contemporaneous clinical examination was significant for left middle ear effusion. In July 2009, the Veteran clarified that he did not have any significant history of post service noise exposure. He reported that he initially noticed tinnitus shortly after service and that it had become progressively worse through the years. Since he was unaware of any treatment, he did not seek medical attention for it. The Veteran was afforded a January 2012 VA examination. He reported having recurrent tinnitus beginning in 2005. He described it as intermittent and occurring two or three times per month. The examiner diagnosed tinnitus and opined it was less likely related to service as the Veteran reported an onset of 2005. Overall, the evidence regarding a date of onset for tinnitus is conflicting. In the claim and substantive appeal, the Veteran dates it all the way back to service. However, at the January 2012 VA examination he changes his reported date of onset to 2005. Meanwhile, private medical records as early as 1985 include references to tinnitus type symptoms during ear, nose, and throat treatment. As tinnitus is a wholly subjective symptom, the Veteran's reports are imperative to determining the date of onset. Given that the Veteran has provided reports of tinnitus dating back to service and private medical records from prior to 2005 reflect complaints of tinnitus type symptoms, the Board considers the evidence to be in relative equipoise regarding a continuity of symptomatology despite conflicting reports. 38 U.S.C.A. §§ 1154(a), 5107(b). By resolving reasonable doubt in the Veteran's favor, a continuity of symptomatology for tinnitus has been demonstrated and service connection is warranted. ORDER Service connection for right ear hearing loss is denied. Service connection for tinnitus is granted. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs