Citation Nr: 1303389 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 06-34 273A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from February 1970 to September 1971. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the Regional Office (RO) in Waco, Texas. It was remanded by the Board for additional development in April 2011 and February 2012. It has now been returned to the Board. The Veteran testified before the undersigned Acting Veterans Law Judge in July 2010. FINDINGS OF FACT 1. It is not at least as likely as not that bilateral hearing loss was caused or made worse by military service. 2. Resolving the benefit of the doubt in favor of the Veteran, tinnitus was at least as likely as not incurred during the Veteran's military service. CONCLUSIONS OF LAW 1. Hearing loss was not incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 2. Resolving the benefit of the doubt in favor of the Veteran, tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), 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. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In this case, the Veteran was sent a letter in May 2008 which explained how VA could assist the Veteran with obtaining evidence in support of his claim. The May 2008 letter also explained what the evidence needed to show in order to support service connection for a claimed disability. VA also must make reasonable efforts to assist the claimant with obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record evidence including service treatment records, VA treatment records, and a transcript of the Veteran's testimony at the July 2010 hearing. The Veteran was provided an adequate examination in conjunction with his claims. While the claims file was not reviewed in its entirety in connection with the March 2012 examination, prior audiology reports, including in service audiological testing, were reviewed. In the examination report and addendum, the examiner provided a complete rationale for her conclusions. The examination also substantially complied with the instructions which were set forth in the Board's previous remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). For these reasons, the Board finds that VA satisfied its obligations pursuant to the VCAA in this case. Service connection Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection for some chronic diseases, including sensorineural hearing loss, may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, the Veteran's service treatment records do not mention complaints of hearing loss or tinnitus. His hearing was normal at the Veteran's September 1971 separation examination, although threshold values were somewhat higher than at the time of his entry physical. The Veteran was examined with respect to his claims of bilateral hearing loss and tinnitus in June 2008. The Veteran reported that, while in service, he was exposed to loud noises from military weaponry. Subsequent to service he worked as a mechanic for 35 years. He reported that in most situations he used hearing protection while working as a mechanic. He reported a "long history" of bilateral tinnitus. Bilateral sensorineural hearing loss was diagnosed. The examiner noted that the Veteran had normal audiometric thresholds throughout service, including at separation and that there were no significant threshold shifts recorded at any frequency at that time. The examiner opined that there was clear and convincing evidence that hearing loss was not incurred in service. The decline in audiometric thresholds occurred subsequent to service and the etiology would be a combination of genetic and environmental factors, with presbycusis as the primary etiology. VA treatment records show that the Veteran is diagnosed with hearing loss and was prescribed hearing aids. In a March 2010 substantive appeal, the Veteran reiterated that he was exposed to loud noise from weaponry during service. At the July 2010 Board hearing, the Veteran testified that he was an armored scout and received a Combat Infantryman's Badge. His representative pointed out that the Veteran was a combat infantryman and involved in some helicopter operations in service and he would have spent a lot of hours escorting vehicles which involved loud noises and also was exposed to combat noise. The Veteran reported that he had a ringing sound in his ear since service. He reported he had hearing loss and tinnitus ever since he left Vietnam. The Veteran's hearing was again examined in March 2012. Although the examiner checked a box stating she did not review the claims file, review of the report of examination shows that she did review service treatment records as well as prior audiological reports. At the examination, the Veteran continued to report exposure to loud noises during military service, including cannons fired daily. He denied any history of ear disease, ear or head trauma, or a family history of hearing loss. The examiner diagnosed bilateral sensorineural hearing loss. The Veteran also reported tinnitus that started 5 to 6 years ago. The examiner noted that the Veteran's separation examination showed normal hearing at separation and that a significant threshold shift was not shown in either ear during the Veteran's period of service. It appeared that he was exposed to noise in service, but his occupation after service was highly probable for noise exposure. Since the Veteran's hearing was within normal limits at separation and there were no significant threshold shifts noted in either ear, the examiner opined that the Veteran's hearing loss was less likely than not related to service. In a May 2012 addendum, the examiner explained that based on current knowledge of cochlear physiology there is no scientific basis for the existence of delayed onset hearing loss. She also noted that a questionable threshold shift was noted during service, from -5 KHz to15 KHz at 4000 Hertz. Due to the negative thresholds recorded in 1970, the standard that was used to calibrate the test equipment was questionable. It was impossible to determine whether the threshold shift was a reflection of significant change greater than normal measurement variability or is due to a calibration standards error. More convincing, thresholds from September 1971 suggested a more flat configuration, void of a discernible notched threshold pattern. This would be, more likely than not, inconsistent with noise exposure to the cochlea. Also, hearing was within normal limits at separation. The examiner observed that though the Veteran reported having tinnitus since service, this was not documented in his service treatment records. Therefore, the examiner opined it was less likely than not related to military service. With respect to the Veteran's claim for service connection for tinnitus, although the examiners did not relate it to service, the Veteran testified that his tinnitus existed since service and this is generally consistent with his June 2008 report of a long history of tinnitus. The Veteran is competent to report his observable symptoms, including ringing in his ears. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (lay testimony may establish the presence of tinnitus because ringing in the ears is capable of lay observation). Although the Veteran reported that his tinnitus occurred much more recently at his March 2012 VA examination, the Board finds that his original statements and testimony were accurate descriptions of the onset of a long history of tinnitus, and the testimony he provided at the hearing was credible. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Therefore, service connection for tinnitus is granted. However, with respect to the Veteran's claim for service connection for bilateral hearing loss, the Board finds that service connection is not warranted. First, there is a current hearing loss disability for VA purposes. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Second, there is evidence of in-service noise exposure. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167; Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge); Caluza, 7 Vet. App. at 511. Finally, however, the evidence of record does not demonstrate a relationship between in-service noise exposure and the currently diagnosed hearing loss. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. The Veteran has provided competent and credible testimony of diminished hearing since service discharge. See Washington, 19 Vet. App. at 368; Caluza, 7 Vet. App. at 511. This evidence, however, is outweighed by the medical evidence of record. Multiple VA examiners opine that the hearing loss was not related to in-service noise exposure. The Board finds that these opinions are highly probative as they are based upon a review of the relevant medical evidence and provided sufficient supporting rationale. In particular, the 2012 VA examiner noted that a significant threshold shift was not shown in either ear during the Veteran's period of service, that his post-service occupation was highly probable for noise exposure, and that hearing thresholds from September 1971 suggested a more flat configuration, void of a discernible notched threshold pattern, which was inconsistent with noise exposure to the cochlea. Accordingly, as the more probative evidence of record indicates that hearing loss is unrelated to active service, service connection is not warranted. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for hearing loss is denied. Service connection for tinnitus is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs