Citation Nr: 1302853	
Decision Date: 01/25/13    Archive Date: 01/31/13

DOCKET NO.  09-28 959	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1.  Entitlement to service connection for right ear hearing loss.

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse



ATTORNEY FOR THE BOARD

C. Fleming, Counsel


INTRODUCTION


The Veteran served on active duty from February 1969 to September 1970.

This matter came to the Board of Veterans' Appeals (Board) from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.  The Veteran testified at a Board hearing in July 2010; the transcript is of record.  This matter was remanded in December 2010.  A review of the record shows that the agency of original jurisdiction (AOJ) has complied with all remand instructions.  In that connection, the AOJ requested that the Veteran provide information concerning private treatment records via a December 2010 notice letter.  Stegall v. West, 11 Vet. App. 268 (1998).


FINDINGS OF FACT

1.  Right ear hearing loss was not manifested during service, sensorineural 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.

2.  Tinnitus was not manifested during service, and current tinnitus is not otherwise related to the Veteran's active service.


CONCLUSIONS OF LAW

1.  Right ear hearing loss was not incurred in or aggravated by active service, and sensorineural hearing loss may not be presumed to have been incurred therein.  38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).

2.  Tinnitus was not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), 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).

The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), 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 AOJ decision on a claim for VA benefits.

In April 2008, a VCAA letter was issued to the Veteran with regard to his claims 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 records, post-service private outpatient treatment records, and lay statements of the Veteran, including his testimony before the undersigned Veterans Law Judge.  There is no indication of relevant, outstanding records that would support the Veteran's claims.  38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3).  In July 2008, 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).

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.

Service connection for impaired hearing is subject to 38 C.F.R. § 3.385, which provides that 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.  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).

In addition, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability.  38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995).  Additionally, when aggravation of a non-service-connected disability is proximately due to or the result of a service-connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.  Id.; see also 38 C.F.R. § 3.310(b) (2012).  With regard to a claim for secondary service connection, the record must contain competent evidence that the secondary disability was caused by the service-connected disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiner v. Brown, 7 Vet. App. 513, 516-17 (1995).

The Veteran's service records reflect that that his military occupational specialty (MOS) was personnel specialist.  A September 1968 pre-induction examination reflects that audiometric testing was performed.  At that time, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
15
15
0

The Veteran responded "No" when asked at that time if experienced hearing loss or any other ear problems. 

No complaints of hearing problems or tinnitus were noted during the Veteran's service.  He again underwent audiometric testing at an August 1970 separation examination.  At that time, the Veteran was found to have no abnormalities of the ears, and puretone findings were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
10
10 
---
20

In February 2002, the Veteran sought private treatment complaining of difficulty understanding speech.  The private treatment provider conducted an audiogram, which showed sensorineural hearing loss in the right ear.  Similar test results from August 2010 and January 2011 are also documented in the records from the private physician.  This physician, an otolaryngologist, submitted a letter to VA dated in August 2010 in which he acknowledged the Veteran's history of in-service noise exposure and opined that "certainly acoustic trauma contributes" to the Veteran's diagnosed right ear hearing loss.  The physician stated in particular that there "is reasonable medical certainty that the acoustic trauma [the Veteran] experienced in the military contributes, in part, to his current high frequency [hearing] loss."  No diagnosis or etiological opinion as to the Veteran's claimed tinnitus was provided.

In July 2008, the Veteran underwent a VA examination.  The examiner reviewed the Veteran's claims file and noted his in-service history of military exposure to gun fire from training on the firing range with 50-caliber weapons and grenade launchers.  The Veteran reported to the examiner that his hearing loss began 7 to 8 years prior.  He also reported having tinnitus, primarily in the right ear, for the past 5 years.  Upon audiometric testing, the examiner diagnosed right ear sensorineural hearing loss and tinnitus.  The examiner concluded, however, that given that the Veteran's hearing was within normal limits at his separation audiometric evaluation and that he did not complain of tinnitus or hearing loss during service or for many years thereafter, it was less likely than not that his current hearing loss and tinnitus are etiologically linked to active duty.

As detailed, service treatment records are negative for hearing loss and tinnitus, and the Veteran's hearing was normal during audiometric testing conducted at service separation in August 1970.  While the lack of in-service findings of complaints or diagnoses of hearing loss and tinnitus in service does not preclude a finding of service connection, as detailed hearing loss and tinnitus was not shown until February 2002, thus over 31 years after separation from service.  The Board finds an absence of any subjective complaints of hearing loss or tinnitus for decades after discharge from service or of persistent symptoms of hearing loss and tinnitus between service discharge and 2002, and an absence of any objective evidence of hearing loss or tinnitus for nearly 32 years after discharge from service.  The lack of any evidence of continuing hearing loss and tinnitus for many years between the period of active duty and the initial findings or documented complaints of hearing loss and tinnitus 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).

Likewise, a VA physician reviewed the claims folder, which included service treatment records, in July 2008.  As detailed, the examiner opined that the Veteran's current hearing loss and tinnitus are not due to military noise exposure.  The examiner based this opinion on a thorough review of the claims folder, to include normal hearing found on separation from service and no complaints of hearing loss or tinnitus for many years thereafter.  The opinion of the July 2008 VA examiner leads to a finding that the Veteran's hearing loss and tinnitus are less likely than not related to service.  The Board 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 conclusions.  See Boggs v. West, 11 Vet. App. 334 (1998). Given the depth of the examination report, and the fact that the opinion was based on a review of the applicable record, the Board finds such opinion is probative and material to the Veteran's claim.  See Owens v. Brown, 7 Vet. App. 429 (1995).  

The Board has given consideration to the August 2010 private opinion.  The probative value of a medical opinion, including of course a private medical opinion, is generally based on the scope of the examination, as well as the relative merits of the expert's qualifications and analytical assessments.  Guerrieri v. Brown, 4 Vet. App. 467 at 470-71 (1993).  The adjudicator may favor one expert's opinion over another as long as an adequate statement of reasons and bases is given.  Owens v. Brown, 7 Vet. App. 429 at 434 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  When assessing the probative value of a medical opinion, the access to claims files and the thoroughness and detail of the opinion must be considered.  The opinion is considered probative if it is definitive and supported by detailed rationale.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  The Court has held that claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a requirement for private medical opinions.  A medical opinion that contains only data and conclusions is not entitled to any weight.  Further, a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from.  "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion."  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2009).

In this case, there is no indication that the private examiner had access to the claims folder, to include the service treatment records which reflected normal hearing during service, including at separation, and no in-service complaints of hearing loss or tinnitus.  While a review of the claims file may not have been required, it is clear that the private examiner did not have the benefit of review of service treatment records, to include normal in-service findings, when formulating an opinion.  The source of a medical expert's information goes to the credibility of the medical evidence.  A transcription of lay history unenhanced by any additional medical comment by the examiner does not constitute competent medical evidence.  Moreover, a Veteran's subjective complaint is also not competent medical evidence.  LeShore v. Brown, 8 Vet. App. 406, 409 (1995).  The fact that the Veteran's hearing was within normal limits upon separation from service is a relevant factor in assessing the claim, and provided the basis for the negative VA etiological opinion.  Thus, the Board assigns less weight to this opinion compared to the more complete VA opinion of record.

The Board has also considered the Veteran's contention that a relationship exists between his current hearing loss and tinnitus and his noise exposure experienced during service, as well as between his service-connected left ear hearing loss and his claimed tinnitus.  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 noise exposure he experienced during service, and find his statements of noise exposure credible based on his experiences of training on weapons and being stationed in close proximity to a firing range.  The Board concedes that the Veteran had noise exposure during his period of active service.  However, the Veteran is not competent to provide an opinion that his current hearing loss and tinnitus are 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 hearing was normal at separation from service, and hearing loss and tinnitus were not shown until decades after separation from service.  Further, although initially claiming that his hearing loss and tinnitus began in service, the Veteran reported at his July 2008 VA examination that he had only had problems hearing for 7 to 8 years, and had noticed tinnitus only 5 years prior to the examination.  Similarly, at his July 2010 hearing before the undersigned Veterans Law Judge, the Veteran stated that he first noticed hearing loss 15 to 20 years prior.  The July 2008 VA examiner was aware of the Veteran's in-service noise exposure per the Veteran's statements and review of the claims folder, but nevertheless concluded that his hearing loss and tinnitus were not due to service.  The Veteran's contentions are outweighed by the medical evidence and opinion of the VA medical examiner, which reflect that his hearing loss and tinnitus are 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.  Further, the Board notes that the Veteran's contentions regarding the onset of his hearing loss and tinnitus have been inconsistent, rendering his assertions of in-service onset less credible.  In 2008, he described the onset of hearing loss 7-8 years earlier and tinnitus 5 years earlier; in both cases, many years following service.  The Board thus finds that the negative clinical and documentary evidence for decades following 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 questions involved regarding causation are medical in nature.  As discussed above, the medical opinion of the VA medical examiner (based on a review of the claims file and with knowledge of the Veteran's in-service duties and in-service complaints) was negative.  The Board finds this opinion more probative on the questions of the etiology of the Veteran's hearing loss and tinnitus than the opinion submitted by the physician in August 2010.  The private examiner did not account for the normal audiometric findings in service or the history of the onset of hearing loss many years following active duty when reaching his conclusion.  In addition, the August 2010 private physician did not offer any opinion as to the etiology of the Veteran's claimed tinnitus, on either a direct or secondary basis.  Similarly, the July 2008 VA examiner gave no indication that the Veteran's claimed tinnitus is in any way related to or aggravated by his service-connected left ear hearing loss.  There is simply no evidence in the record, other than the Veteran's unsubstantiated contention, to suggest that his tinnitus is etiologically linked to or aggravated by his service-connected left ear hearing loss.  Under these circumstances, the Board is unable to find that there is a state of equipoise of the positive evidence and negative evidence.  The preponderance of the evidence now of record is against the Veteran's claim of service connection for hearing loss and tinnitus.


ORDER

Entitlement to service connection for right ear hearing loss is denied.

Entitlement to service connection for tinnitus is denied.



______________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs