Citation Nr: 1304906 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 12-06 565 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION 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). The Veteran served on active duty from March 1957 to March 1959. These matters come before the Board of Veterans' Appeals (Board) from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In that decision, the RO denied entitlement to service connection for bilateral hearing loss disability and tinnitus. FINDINGS OF FACT 1. A bilateral hearing loss disability is not shown to have been present in service, a sensorineural hearing loss was not compensably disabling within the one year presumptive period or for many years thereafter, and a bilateral hearing loss disability is unrelated to in-service noise exposure. 2. Tinnitus is not shown to have been present in service or for many years thereafter and is unrelated to in-service noise exposure. CONCLUSIONS OF LAW 1. A bilateral hearing loss was not incurred in or aggravated by service, and a sensorineural hearing loss may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012). 2. Tinnitus was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in July 2009 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. The case was most recently readjudicated in May 2012. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. The Board notes that the claims file includes post service and private VA treatment records. The National Personnel Records Center has indicated in connection with prior claims, as well as in July 2009 in connection with these claims, that the Veteran's service treatment records may have been destroyed by a 1973 fire at the National Personnel Records Center. In these circumstances, when a Veteran's service treatment records are unavailable through no fault of his own, VA's duties to assist, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule are heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993). In addition, when VA is unable to produce records that were once in its custody an explanation should be given a claimant as to how service treatment records are maintained, why the search that was conducted constitutes a reasonably exhaustive search, and why further efforts are not justified. 38 U.S.C.A. § 5103A(b)(2); 38 C.F.R. § 3.159(e)(1); Dixon v. Derwinski, 3 Vet. App. 261, 264 (1992). Moreover, the claimant should be assisted in obtaining sufficient evidence from alternate or collateral sources. Id. at 263 (citing VA Adjudication Manual). In this case, the RO's July 2009 VCAA letter indicated that the Veteran's service treatment records were likely destroyed by fire, that he could submit any service treatment records in his possession, and that he could submit documents to substitute for service treatment records, including, but not limited, to statements from military medical personnel, buddy statements, and photographs taken during service. The RO also prepared a formal finding of unavailability in which it noted the records that had been received from the Veteran and found that all efforts to obtain the service treatment records had been exhausted. The RO further found that additional efforts to obtain them would be futile, and that the service treatment records were unavailable. The RO thus complied with its duty to assist in this regard. The Veteran was afforded an April 2012 VA examination as to the nature and etiology of his bilateral hearing loss disability and tinnitus. The Veteran's representative argued that the examination was inadequate, but, for the reasons stated below, the Board finds that the examination was adequate. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claims for entitlement to service connection for bilateral hearing loss disability and tinnitus are thus ready to be considered on the merits. Analysis As noted above, where, as here, the service treatment records have likely been destroyed by fire, the Board's duty to provide reasons and bases for its findings and conclusions and to consider carefully the benefit-of-the-doubt rule are heightened. The Board will endeavor to comply with its heightened duties below, but, for the reasons stated, must deny the claims. Although the Board has a heightened obligation to provide adequate reasons and bases supporting this decision, there is no requirement that each piece of evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claims and what the evidence in the claims file shows, or fails to show, with respect to those claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran in this case seeks service connection for bilateral hearing loss and tinnitus and claims these disabilities are due to in-service noise exposure. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101(3), 1112(a)(1), 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). See also Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995 (sensorineural hearing loss is an organic disease of the nervous system). Finally in this regard, for the purpose of applying the laws administered by the VA, impaired hearing is considered to be a disability when the auditory threshold at any of the frequencies 500, 1000, 2000, 3000, or 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 utilizing the Maryland CNC Tests are less than 94 percent. 38 C.F.R. § 3.385. In this case, the Veteran was diagnosed with bilateral sensorineural hearing loss disability and tinnitus following the April 2012 VA examination. The appellant claims that these disabilities result from in-service noise exposure and submitted a certificate indicating he had undergone instruction in artillery survey procedure as a member of an artillery battalion. The Veteran also submitted a photograph of himself in front of a tank. The Board finds that the Veteran's statements indicating that he was exposed to loud noise during service are credible and consistent with the circumstances of his service. See 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). As the Veteran has been diagnosed with a bilateral hearing loss disability and tinnitus, and was exposed to loud noise in service, the dispositive question in this case is whether these current disabilities are related to in-service noise exposure, on a presumptive, continuity of symptomatology, or other basis. Initially, the Board notes that in none of the Veteran's written statements did he claim that he had hearing loss disability or tinnitus in and since service. Moreover, during the April 2012 VA examination, he did not indicate when his hearing loss began and could not recall when his tinnitus began. The Veteran is competent to make statements as to observations based on his senses, such as hearing loss and tinnitus. See, e.g., Charles v. Principi, 16 Vet.App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). In this case, however, as the Veteran has not stated that he observed hearing loss or tinnitus in service or during the one year presumptive period, and there is no other evidence so indicating, entitlement to service connection is not warranted on a presumptive or continuity of symptomatology basis. The only remaining basis for a finding of service connection is competent evidence of a nexus between the current disabilities and the in-service noise exposure. There is only one medical opinion that addresses this question. In April 2012, a VA audiologist examined the Veteran and reviewed the claims file. The RO had indicated in its examination request that the possibility of acoustic trauma was conceded. The audiologist conducted auditory threshold and Maryland CNC speech discrimination testing. The auditory threshold testing indicated that the Veteran met the criteria for a bilateral hearing loss disability. The audiologist found, however, that the use of speech discrimination testing was not appropriate for the Veteran because of language difficulties, cognitive problems, and inconsistent speech discrimination scores. The audiologist addressed the Veteran's in-service exposure to noise from heavy weapons without hearing protection. The audiologist also noted that postservice the appellant was exposed to noise while boating, using an all terrain vehicle, using a hand drill and saw, and using a lawnmower, while rarely using appropriate hearing protection as opposed to cotton in the ears. As noted, with regard to tinnitus, the audiologist indicated that the Veteran reported constant tinnitus but could not recall when it started. With regard to whether the hearing loss disability and tinnitus were related to service, the audiologist indicated that, based on review of the claims file, clinical expertise, review of the related literature, and the present degree of hearing loss, she could not resolve the issue without resort to mere speculation. She noted the absence of service treatment records, significant post service civilian noise exposure, the lack of reported word recognition scores because of unreliability in the Veteran's responses, despite repeated attempts and reinstruction. The examiner concluded that, "It is likely/possible that aging, civilian noise exposure, and general health had contributed to the Veteran's (hearing loss) and/or tinnitus. It would be speculative to allocate a degree of his tinnitus to any or each of these etiologies, or his current hearing loss to each of these military vs. non-military etiologies mentioned." The audiologist later wrote with regard to tinnitus that there were no service treatment records to review, "thus it would be speculative to give a nexus to the Veteran's tinnitus. Further, the Veteran could not recall when his tinnitus started and he reported civilian noise exposure." The representative argued in the January 2013 written brief presentation that the April 2012 VA examination report was inadequate because, in order to establish the nature and severity of the Veteran's hearing loss and tinnitus, all portions of the examination must be completed and, further VA must afford the appellant the benefit of the doubt, including exposure to acoustic trauma. The Board finds that this argument as to adequacy of the April 2012 examination is flawed. The audiologist refused to report the speech recognition scores because she found the Veteran's responses unreliable due to language difficulties, cognitive problems, and inconsistent results. As the audiologist explained the reasons for not reporting the speech recognition scores, and these reasons were based on her medical judgment as to the nature of the Veteran's responses, the Board will not find the examination inadequate based on her decision not to report the speech recognition scores. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Moreover, the Veteran's representative did not offer any argument against the audiologist's conclusion but merely stated that the examination was inadequate based on lack of completion. VA has conceded in-service noise exposure and informed the VA examiner of this concession. Thus, the representative's argument that VA did not accord the Veteran the benefit of the doubt by conceding exposure to acoustic trauma is flawed. Significantly, the audiologist diagnosed hearing loss disability based on the auditory threshold testing, and this diagnosis was not affected by the examiner's decision to discard the speech recognition scores. The Board therefore finds that the examination was adequate for rating purposes in this respect. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (a medical examiner must support his conclusion with an analysis that is adequate for the Board to consider and weigh against contrary opinions). As to the audiologist's statement that she could not opine as to whether the hearing loss or tinnitus were related to service without resort to speculation, before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence. Jones v. Shinseki, 23 Vet. App. 382, 390 (2009). It must also be clear that the examiner has considered "all procurable and assembled data." Id. (citing Daves v. Nicholson, 21 Vet. App. 46 (2006)). Finally, the examiner must clearly identify precisely what facts cannot be determined. Id. In this case, the VA audiologist's opinion satisfies the Jones criteria. She explained the reasons for her conclusion based on an accurate characterization of the evidence of record. She noted all of the other likely or possible sources for the Veteran's current hearing loss and tinnitus, such as post service noise exposure, age, and health, and the absence of the service treatment records or statements by the Veteran indicating when his tinnitus began. She also reported reviewing the claims file, medical literature and stated that her opinion was based on her medical judgment. Significantly, the VA audiologist did not rely on the absence of evidence of hearing loss in service by itself in reaching her conclusion. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (the absence of hearing loss disability in service is not in and of itself fatal to a claim for service connection for bilateral hearing loss disability). The examiner also noted factors other than the absence of service treatment records with regard to tinnitus, i.e., the fact that the Veteran could not recall when his tinnitus started and his post service noise exposure. The Board therefore accepts the VA audiologist's conclusion that she could not offer a non-speculative opinion relating the Veteran's hearing loss disability or tinnitus to his in-service noise exposure, as opposed to his aging, civilian noise exposure, or general health. The only other evidence in this regard consists of the statements of the Veteran. Veterans are competent to testify as to some matters of diagnosis and etiology and lay testimony as to such matters cannot be categorically rejected. See Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011) (noting impropriety of the Board categorically discounting lay testimony and requiring the Board to determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence is competent). See also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (finding that the Board had cited case law deeming lay evidence categorically incompetent "that has been overturned by this court's precedent"). It appears that the question of whether a hearing loss disability or tinnitus is related to service relates to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Cf. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder); Barr, 21 Vet. App. at 308-309 (lay testimony is competent to establish the presence of varicose veins); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Even assuming, however, that a layperson is competent to opine that current hearing loss disability or tinnitus are related to in-service noise exposure, the Veteran in this case simply asserted that his hearing loss disability and tinnitus are related to in-service noise exposure, but did not give any reasons for this assertion. The Veteran's assertions are therefore the equivalent of a conclusory generalized lay statement suggesting a nexus between a current disability and service. The Federal Circuit has held that such a statement would not even be sufficient to meet the low threshold for establishing that a current disability "may be associated with" service warranting entitlement to a VA examination. Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010). It follows that the Veteran's statements are not sufficient to establish entitlement to service connection where the other evidence of record does not show in-service disability, manifestation within the presumptive period, or continuity of symptomatology, and a medical opinion indicated that a finding of nexus between current hearing loss disability or tinnitus and in-service noise exposure, as opposed to age, post service noise exposure, or general health, would be speculative. As noted above, the Board has a heightened duty to consider carefully the benefit-of-the-doubt rule, but case law does not lower the legal standard for proving a claim for service connection. See Russo v. Brown, 9 Vet.. App. 46, 51 (1996). The above analysis reflects that the preponderance of the evidence is against a finding of entitlement to service connection for bilateral hearing loss and tinnitus in this case. Even after careful consideration of the benefit-of-the-doubt doctrine, the Board must conclude that it is not for application, and the claims must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009) (because the "benefit of the doubt" doctrine applies only when the evidence is approximately balanced, it has no application where the Board has determined that the preponderance of the evidence weighs against the Veteran's claim). ORDER Entitlement to service connection for bilateral hearing loss disability is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs