Citation Nr: 1302222 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 11-10 661 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for bilateral defective hearing. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from April 1960 to May 1962. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a November 2010 decision by the RO which, in part, denied the benefits sought on appeal. A hearing before the undersigned was held at the RO in March 2012. The Board remanded the appeal for additional development in May 2012. 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). 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. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2012). 2. The Veteran does not have a tinnitus due to disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 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 September 2010. 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 twice during the pendency of this appeal, and testified at a hearing at the RO before the undersigned in March 2012. Virtual VA shows a review of CAPRI for updated VA treatment records in May 2012 only generated the February 2011 VA examination report. The Board finds that the June 2012 VA examination is comprehensive and adequate upon which to base a decision on the merits of the issues on appeal. The VA examiner personally interviewed and examined the Veteran, elicited a medical history and provided comprehensive and rational explanations 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 the duty to notify and duty to assist have been satisfied. Also, the Board finds that the AMC complied with the May 2012 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) and Dyment v. West, 13 Vet. App. 141, 146- 47 (1999). 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 provides: 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). Hearing Loss & Tinnitus The Veteran contends that his current hearing loss was due to exposure to acoustic trauma in service when an officer accidently fired a rifle grenade while standing next to him during Advanced Individual Training (AIT) at Ft Jackson. The Veteran testified that he had some ringing in his ears for a couple of days, but that he has had no further symptoms and does not have any current tinnitus. See Transcript. The Veteran testified that he first noticed a hearing loss three years after service, and that it has progressively worsened over the years. Id. The favorable evidence in this case consists of an October 2010 letter from a private audiologist to the effect that it was at least as likely as not that the Veteran's bilateral hearing loss was related to his military service. The audiologist indicated that his opinion was based on the Veteran's reported history that he was exposed to excess noise from 45 caliber pistols and grease guns, M-1 and Browning Automatic Rifles, 30 caliber machine guns and other weapons fire during service, and that he denied any post-service exposure to loud noises. Also, in a June 2012 letter, D.L., B.B.A., a Hearing Instrument Specialist, reported that the Veteran had been a patient since 1996, that the Veteran's hearing loss had progressed at a gradual rate, that he had a history of noise exposure that he had listed in his personal inventory as having dated back to the time of his military service, and that currently he had little noise exposure on a daily basis. Mr. D.L. indicated that the Veteran's post-service was not significant for noise exposure. Mr. D.L. concluded by noting that the Veteran had been coming to his office for years and that without a doubt the Veteran had given him consistent information about his hearing, his exposure to noise, and his difficulties with his hearing. The Veteran's service treatment records (STRs) showed no complaints, treatment, abnormalities or diagnosis for any hearing problems or tinnitus during service. The Veteran's pre-induction examination in February 1960, showed his hearing acuity for whispered voice was 15/15, bilaterally. The STRs showed that the Veteran was seen for removal of ear wax in October 1960, at which time he reported a history of fungus infection in his ears for a number of years. Other than a fair amount of wax, no pertinent abnormalities were noted. The examiner indicated that the Veteran could hear his watch tick in each ear. On Reports of Medical History for a Class III flight examination in January 1962, and at the time of his separation examination in March 1962, the Veteran specifically denied any history of ear, nose, or throat problems. Audiological findings, as converted to ISO units currently in effect, on both examinations 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.) When examined by VA in February 2011, the examiner indicated that the claims file was reviewed and included a detailed description of the Veteran's complaints, medical history and current findings. The Veteran reported a history of military noise exposure without any protection and recreational noise exposure hunting as a youth, without protection, and that post-service he worked in the oil business with some periodic field inspections. He also reported a history of left ear infections as a child, and a history of intermittent tinnitus, but could not recall the date or circumstances of the onset of his tinnitus. Audiometric findings on examination were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 50 50 60 60 LEFT 50 45 50 60 65 Speech discrimination was 88 percent in the right ear and 92 percent in the left ear. The diagnosis was moderate to moderately severe sensorineural hearing, bilaterally. The examiner noted that there were no complaints, treatment or findings for any hearing loss or tinnitus in service or within one year of discharge from service. The examiner opined that it was not likely that any current hearing loss or reported intermittent tinnitus was related to service. When examined by VA in June 2012, the examiner indicated that the claims file was reviewed and included a detailed description of the Veteran's complaints, medical history and current findings. Audiometric findings on examination were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 55 60 55 65 LEFT 50 55 50 65 65 Speech discrimination was 92 percent in the right ear and 84 percent in the left ear. The diagnosis was sensorineural hearing loss, bilaterally. The examiner observed that the Veteran had hearing within normal limits at entrance to service. The examiner maintained that documentation while in service revealed a notation of the Veteran's ability to "hear a watch tick" suggestive of normal hearing sensitivity in higher frequencies. Additionally, the separation exam revealed a frequency-specific exam noting hearing sensitivity well within normal limits, bilaterally at all tested frequencies. Citing to a medical treatise, the examiner maintained that once the exposure to noise was discontinued, there was no significant further progression of hearing loss as a result of the noise exposure. Therefore, any hearing loss measured in the future could not have been caused by past exposure to high intensity noise in the military. The examiner further noted that the Veteran reported a single incident of acoustic trauma related to when a rifle grenade discharged unexpectedly nearby resulting in tinnitus lasting for two to three days, which the Veteran stated resolved completely. The examiner maintained that exposure to either impulse sounds or continuous exposure could cause a temporary threshold shift, which disappeared in 16 to 48 hours after exposure to loud noise. The examiner noted that impulse sounds might also damage the structure of the inner ear resulting in an immediate hearing loss. Continuous exposure to loud noise could also damage the structure of the hair cells resulting in hearing loss. The examiner indicated that if hearing did not recover completely from a temporary threshold shift, a permanent hearing loss existed. The examiner maintained that since the damage was done when exposed to noise, a normal audiogram subsequent to the noise exposure would verify that the hearing had recovered without permanent loss. Given the aforementioned information, the examiner concluded that it was not likely that the Veteran's hearing loss was related to his duties in the military service. As for the tinnitus, the examiner noted that the Veteran denied current tinnitus. As noted above, the Veteran reported a single incident of tinnitus following discharge of rifle grenade while in service and he stated that this resolved completely within two to three days following the incident. In this case, the Board finds that the June 2012 VA opinion concerning the etiology of the Veteran's current hearing loss most persuasive, as it was based on a thorough review of the claims file, cited to a medical treatise on the subject of noise induced hearing loss, and included a discussion of all relevant facts and medical principles. The VA examiner offered a rational and plausible explanation for concluding that the Veteran's current hearing loss was not related to service. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.) In contrast, the June 2012 private opinion did not specifically relate the Veteran's hearing loss to military noise exposure but rather relayed the Veteran's opinion that his hearing loss was related to military noise exposure. The Veteran is competent to relate symptoms of hearing loss but he does not assert a continuity of symptoms of hearing loss since service (rather "probably three years after" service; see Transcript pg. 6), and he is not competent to provide a nexus opinion on the etiology of his hearing loss as such involves a complex medical matter requiring expertise in audiology. Therefore, a bare transcription of this lay history, unenhanced by additional comment by the transcriber, is not competent medical evidence merely because the transcriber is a professional. See LeShore v. Brown, 8 Vet. App. 406 (1995). For these reasons, the Board does not find the opinion persuasive. In regard to the October 2010 opinion, unfortunately the Board is also not persuaded by the opinion. The opinion was rendered without knowledge and discussion of all the relevant facts contained in the claims file-specifically, in-service audiometric data showing normal findings. The Board is persuaded by the extensive explanation provided by the June 2012 VA examiner regarding the significance of such in-service findings. Under these circumstances, the Board finds that reliance upon the June 2012 VA opinion is warranted in this case. See Gabrielson v. Brown, 7 Vet. App. 36 (1994). Concerning the claim for tinnitus, entitlement to service-connected benefits is specifically limited to cases where there is a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran provided sworn testimony at the March 2012 hearing that the ringing in his ears he experienced in service ceased during that time and that he did not currently have tinnitus. This is the same history the Veteran provided to the June 2012 VA examiner. The Board observes, however, that the February 2011 VA examination report notes that the Veteran reported that he experienced tinnitus on a recurrent basis, and in the February 2012 646, the Veteran's representative maintained that the Veteran "had ringing in [his] ears during and after service." The statements regarding whether the Veteran currently experiences tinnitus are inconsistent and therefore unreliable and deemed not credible. The credibility of assertions of tinnitus is crucial given the subjective nature of the disability. The Board finds that there is no credible evidence of current tinnitus. In the absence of a current diagnosis, there can be no credible nexus of tinnitus to an incident of the Veteran's military service. For these reasons, the Board finds it appropriate that the June 2012 VA examiner did not provide a nexus opinion on the tinnitus issue. Accordingly, service connection for tinnitus is denied. 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