Citation Nr: 1303318 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 09-28 146 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas 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 Christine C. Kung, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from February 1968 to August 1968. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In May 2011, the Board remanded the issues of service connection for bilateral hearing loss and tinnitus for a VA examination to address these issues. All requested development was accomplished, and the Board concludes that it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The issue of entitlement to service connection for a sinus condition has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over that issue, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran had minimal exposure to hazardous noise (acoustic trauma) in service and he had some post-service occupational and recreational hazardous noise exposure. 2. The Veteran did not experience chronic symptoms of hearing loss or tinnitus in service. 3. The Veteran did not experience continuous symptoms of hearing loss or tinnitus after service separation. 4. Hearing loss did not manifest to a compensable degree within one year of service separation. 5. Currently diagnosed bilateral hearing loss is not related to noise exposure in service. 6. Tinnitus is not related to noise exposure in service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012). 2. The criteria for service connection for tinnitus are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. Id. The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the 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, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Id. In a July 2008 letter, the RO provided preadjudicatory notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. The July 2008 VCAA notice letter included provisions for disability ratings and for the effective date of the claim. The Board is satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes service treatment records, VA and private treatment records, a VA examination, and the Veteran's statements and hearing testimony. In order to further assist the Veteran in the development of the case, the Board remanded the case for a VA examination and opinions to address the claims for service connection for bilateral hearing loss and tinnitus. 38 C.F.R. § 3.159(c)(4) (2012). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the June 2011 VA audiological examination and opinions obtained in this case are adequate because they was performed by a medical professional, and were based on a review of the record and history and symptomatology from the Veteran, and included a thorough examination. The VA examiner offered relevant medical opinions, and provided supporting reasons for the medical opinions offered. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); see Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that VA must provide an examination that is adequate for rating purposes). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). In light of the foregoing, the Board finds that VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his claim, and to respond to VA notices. The Veteran has not identified any outstanding evidence that needs to be obtained. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may 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). In Hensley v. Brown, 5 Vet. App. 155, 157 (1993), the Court indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability even where hearing was within normal limits on audiometric testing at separation from service. See also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (interpreting that 38 C.F.R. § 3.385 does "not serve as a bar to service connection" where there is an absence of results of an in-service audiometric examination capable of being compared with the regulatory pure tone and speech recognition criteria). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as sensorineural hearing loss, to a degree of 10 percent or more within one year from separation from service, such diseases may 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. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In evaluating claims of service connection for hearing loss, it is observed that the threshold for normal hearing is from zero to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley, 5 Vet. App. 155. In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Service Connection for Hearing Loss and Tinnitus Analysis The Veteran contends that service connection is warranted for bilateral hearing loss and tinnitus. During VA treatment and a VA examination, he identified exposure to jet engine noise and minimal noise from shooting on the range in service. After reviewing all the lay and medical evidence, including the Veteran's statements, the Board finds that currently diagnosed bilateral hearing loss and tinnitus are not related in-service noise exposure. The Board finds that the Veteran has currently diagnosed bilateral hearing loss that meets the criteria of 38 C.F.R. § 3.385 and has tinnitus. During a July 2008 VA audiological consultation, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 70 75 LEFT 20 20 40 65 70 On the authorized VA audiological evaluation in June 2011, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 40 16 70 LEFT 5 15 40 65 80 Speech audiometry completed in June 2011 revealed speech recognition ability of 80 percent in the right ear and of 80 percent in the left ear. Accordingly, the Board finds that the Veteran has met the threshold criteria for establishing a current hearing loss "disability" for VA purposes in accordance with 38 C.F.R. § 3.385. The July 2008 VA audiological consultation and June 2011 VA examination also diagnosed the Veteran with tinnitus. The Board finds that the Veteran's exposure to acoustic trauma in service was minimal, and he had some post-service occupational and recreational hazardous noise exposure. During both the July 2008 VA audiological consultation and June 2011 VA examination, the Veteran identified exposure to aircraft noise and noise from the shooting range in service. He also identified post-service occupational noise exposure while working at a Texaco oil refinery and recreational noise exposure while hunting, both with the use of hearing protection. The Veteran's DD Form 214 shows that he served from February 1968 to August 1968 as a supply helper in the Air Force. The Duty MOS Noise Exposure Listing referenced in DVA Fast Letter 10-35 for Modifying the Development Process in Claims for Hearing Loss and/or Tinnitus shows that veterans with a duty MOS in an area similar to that of the Veteran's (supply management and supply systems analyst) have a low probability of exposure to hazardous noise. The Board finds that the Veteran is competent to describe noise exposure in service, and the Board finds that his report of exposure to jet engine noise and shooting on the range in service is credible, as it is consistent with Air Force service generally; however, because the Veteran's duty was an area not associated with hazardous noise exposure, given the short length of his service (from February to August 1968), and the fact that the exposure to shooting on the range was of brief duration, the Board finds that the Veteran's exposure to hazardous noise in service was minimal. The Veteran has credibly reported having some degree of post-service occupational and recreational noise exposure while working at an oil refinery and hunting. The Board finds that the Veteran did not experience chronic symptoms of hearing loss or tinnitus in service and he did not experience continuous symptoms of hearing loss or tinnitus after service separation. A review of service audiograms dated in December 1967 and July 1968 shows bilateral hearing loss within the normal ranges during service. See Hensley at 157 (holding that the threshold for normal hearing is zero decibels to 20 decibels and higher threshold levels indicate some degree of hearing loss). On the enlistment audiological evaluation in December 1967, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 NR 0 LEFT 0 0 0 NR 0 On the service audiological evaluation in July 1968, completed in conjunction with a Medical Board Evaluation examination just prior to service separation, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -10 -10 -10 5 5 LEFT 0 -10 -10 -10 -10 The Board finds that hearing loss did not manifest in service or within one year of service separation. Service treatment records do not reflect any complaints related to hearing loss or tinnitus in service, service audiograms were within normal ranges, and the earliest post-service audiometric data showing a hearing disability is dated in July 2008, over 40 years after the Veteran's separation from service. While the Veteran reported during the more recent June 2011 VA examination that he was unsure of the date and circumstances of the onset of his tinnitus, during the earlier July 2008 VA audiological consultation he reported that tinnitus had its onset two to three years prior, which indicates onset of tinnitus approximately 38 to 39 years after service separation. The Board finds that the July 2008 statement with regard to the onset of tinnitus, which was provided in the context of treatment and not for compensation purposes, is highly probative evidence that the Veteran did not have the onset of tinnitus until many years after service separation. While the Veteran may not recall the exact date and circumstances of the onset of his tinnitus, his report during the July 2008 VA audiological consultation clearly dates the onset of tinnitus decades to well after service separation. For these reasons, the Board finds that the Veteran did not experience chronic symptoms of hearing loss or tinnitus in service, nor did he experience continuous symptoms of hearing loss or tinnitus after service separation. The Board finds that the weight of the evidence demonstrates that bilateral hearing loss and tinnitus are not related to noise exposure in service. A June 2011 VA examiner opined that bilateral hearing loss and tinnitus were not caused by or a result of military service noise exposure. The VA examiner reasoned that the July 1968 Medical Board Evaluation examination revealed normal hearing sensitivity bilaterally. The June 2011 VA opinion was additionally based on a review of the evidence of the record to include the Veteran's reported in-service and post-service history of noise exposure, which the examiner discussed during the course of the examination. As noted above, during the examination, the Veteran credibly reported exposure to aircraft noise and minimal shooting on the range during his short period of service, years of post-service occupational noise at an oil refinery, and post-service occupational noise from hunting. The Board finds that the VA examiner's opinion was based on an accurate factual background consistent with the Board's own findings, and the VA examiner provided sufficient reasons for the opinion rendered; therefore, the opinion is adequate and probative evidence that tends to weigh against a finding that the current hearing loss or tinnitus is related to noise exposure during service. For these reasons, the Board finds that service connection for bilateral hearing loss and tinnitus is not warranted. Because the preponderance of the evidence is against the claims for service connection for bilateral hearing loss and tinnitus, the claims must be denied, and the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs