Citation Nr: 1305302 Decision Date: 02/13/13 Archive Date: 02/21/13 DOCKET NO. 10-45 316 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD G. E. Wilkerson, Associate Counsel INTRODUCTION The appellant served in the Nebraska Air National Guard from December 1960 to December 1966 with a period of active duty for training (ACDUTRA) from March 1961 to May 1961. This case comes before the Board of Veteran's Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Jurisdiction was subsequently transferred to the RO in Lincoln, Nebraska. In July 2011, the appellant presented testimony during a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board remanded the case for further development in January 2012. That development was completed, and the case has since been returned to the Board for appellate review. A review of the appellant's Virtual VA electronic claims file reveals no additional records. FINDINGS OF FACT 1. Bilateral hearing loss did not manifest during a period of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA) and has not been shown to be causally or etiologically related to the appellant's periods of ACDUTRA or INACDUTRA. 2. Tinnitus did not manifest during a period of ACDUTRA or INACDUTRA and has not been shown to be causally or etiologically related to the appellant's periods of ACDUTRA or INACDUTRA. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in active service. 38 U.S.C.A. §§ 101 (21), (24), 1110, 1154 (West 2002); 38 C.F.R. §§ 3.6 (a), (d), 3.102, 3.159, 3.303, 3.385 (2012). 2. Tinnitus was not incurred in active service. 38 U.S.C.A. §§ 101 (21), (24), 1110, 1154 (West 2002); 38 C.F.R. §§ 3.6 (a), (d), 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, regarding the duty to notify, the appellant was sent a letter in April 2010, prior to the initial adjudication of the claim, that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. This letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. In addition, the duty to assist the appellant has also been satisfied in this case. The appellant's service treatment records and all identified and available post-service medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the appellant's claims. The appellant has not identified any outstanding records that are available and relevant to the claims being decided herein. Moreover, the record includes various written statements provided by the appellant and his representative, as well as a transcript of the appellant's July 2011 Board hearing. The appellant was also afforded a VA examination in July 2010, and an additional VA medical opinion was obtained in February 2012 to determine the nature and etiology of his claimed bilateral hearing loss and tinnitus. 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). In January 2012, the Board found the July 2010 VA medical opinion to be inadequate and remanded for additional opinion. As discussed below, the Board finds that the February 2012 VA opinion obtained pursuant to the January 2012 remand is adequate, as it is predicated on a review of the claims file, the pertinent evidence of record, and current audiometric findings. In addition, the February 2012 examiner provided a thorough rationale for the conclusions reached. The Board also finds that the RO has substantially complied with the prior remand directives (see, e.g., Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with)). Therefore, any further VA action with regard to obtaining an opinion with respect to the etiology of the claimed bilateral hearing loss and tinnitus is not warranted. The Board concludes the appellant was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the appellant in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. II. Law and Analysis The appellant contends that he is entitled to service connection for bilateral hearing loss and tinnitus, as he believes that he developed these disorders due to noise exposure during his period of ACDUTRA and/or his one weekend per month and two weeks per year drill obligation over a six year period with the Air National Guard. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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). The term "active military, naval, or air service" includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a), (d). The advantage of certain evidentiary presumptions, provided by law, that assist veterans in establishing service connection for a disability do not extend to those who claim service connection based on a period of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA). Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on ACDUTRA and had not established any service-connected disabilities from that period); McManaway, 13 Vet. App. at 67 (citing Paulson, 7 Vet. App. at 469-70, for the proposition that, "if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim." (emphasis in McManaway)); see also Biggins v. Derwinski, 1 Vet. App. 474, 479 (1991) (Steinberg, J., concurring). Thus, the evidentiary burden is on the claimant to show that he or she became disabled from an injury or disease incurred in line of duty during ACDUTRA or from an injury incurred in line of duty during INACDUTRA. In this vein, the Board notes that, in addition to the requirements for establishing service connection on a direct basis, service connection for certain diseases, such as organic disease of the nervous system, may also be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). However, this presumption does not apply in this case, as only ACDUTRA/INACDUTRA service is shown. See 38 U.S.C.A. § 1112. 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, 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 using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Thresholds for normal hearing are between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Prior to November 1967, audiometric test results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards must be converted to ISO-ANSI standards. For purposes of comparison between the service audiometric data and more recent VA audiometric data, the tables below show the ASA measurements recorded in reserve service, with the comparable ISO (ANSI) measurements in adjacent parentheses. The appellant's service treatment records include a December 1960 enlistment examination audiogram, which revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) 0 (10) 5 (15) N/A 15 (20) LEFT -5 (10) 0 (10) 10 (20) N/A 5 (10) An October 1963 reenlistment examination audiogram revealed pure tone thresholds, in decibels, as follows: 500 1000 2000 3000 4000 RIGHT 0 (15) 0(10) 0 (10) 0 (10) 0 (5) LEFT 0 (15) 0 (10) 0 (10) 0 (10) 0 (5) An October 1963 whispered hearing test revealed scores of 15 out of 15 bilaterally. The appellant also denied having any ear, nose and throat difficulty on his October 1963 report of medical history and on his August 1964 and September 1965 annual physical fitness certificate reports of medical history. During a July 2010 VA audiology examination, the appellant claimed that he had bilateral hearing loss and constant tinnitus from exposure to military noise exposure. He reported having exposure to noise from jet engines, the rifle range, an infiltration course, machine guns, and explosions. He also indicated that he did not wear ear protection for noise exposure during his drill weekends or during his two month period of ACDUTRA. However, he did acknowledge noise exposure from farm equipment as a civilian. An audiogram during the July 2010 VA examination revealed pure tone thresholds, in decibels, as follows: 500 1000 2000 3000 4000 RIGHT 15 15 25 60 65 LEFT 10 15 30 55 75 Speech recognition scores of 80 percent for the left ear and 74 percent for the right ear were recorded. The July 2010 VA examiner diagnosed the appellant with bilateral sensorineural hearing loss and tinnitus. She observed that there was no significant threshold change from 1960 to 1963 and that the appellant served in the Air National Guard one weekend per month from 1963 to 1966. Therefore, she concluded that it was not likely that the appellant's current hearing loss and tinnitus were related to his claimed military noise exposure. Rather, she opined that additional noise exposure, aging, and health conditions since his separation from the military were likely contributing factors in his hearing loss. A February 2011statement from C. A. (initials used to protect privacy), a private audiologist, documents the appellant's complaints and own reported medical history with respect to his hearing loss and tinnitus. After reviewing some of the appellant's service treatment records and performing an examination, the audiologist opined, "It [was] quite likely that the noise exposure [the Appellant] suffered during his military service was the beginning of his hearing loss and tinnitus." He reported that the type and degree of the appellant's hearing loss was consistent with noise-induced hearing loss. During the appellant's July 2011 Board hearing, he reported serving for six years with the Air National Guard. He indicated that he was a field specialist and that his duties included refueling jet airplanes. He stated that he was provided pieces of foam for ear protection during these duties, which the appellant indicated were essentially useless for noise protection. He noted that, if the pieces of foam fell out, he did not put them back in his ears. With respect to occupational noise exposure, the appellant testified that he was exposed to some noise as a farmer. He contended that the noise exposure was not as great as that experienced during service because his farm equipment had mufflers or cabs. He also indicated that he used hearing protection on some occasions, such as during activity involving irrigation wells. In regards recreational noise exposure, the appellant stated that his main hobby was golf. He noted that he used to hunt, but only occasionally. In addition, the appellant testified that he started experiencing symptoms of hearing loss and ringing in the ears during ACDUTRA. He stated that these symptoms have been constant since that time and that the symptoms are the same as those experienced in 1961. In February 2012, the appellant's claims file was reviewed by another VA audiologist for an opinion on the etiology of the claimed bilateral hearing loss and tinnitus. She determined that the appellant's bilateral hearing loss and tinnitus are less likely than not incurred in or caused by service. In so finding, she observed that all of the service audiometric results were normal and that there was no significant shift noted over the course of service. The audiologist indicated that exposure to either impulse sounds or continuous exposure can cause a temporary threshold shift, which disappeared in 16 to 48 hours after exposure to loud noise. Impulse sounds may also damage the structure of the inner ear resulting in an immediate hearing loss. She noted that continuous exposure to loud noise can also damage the structure of the hair cells resulting in hearing loss. If the hearing does not recover completely from a temporary threshold shift, a permanent hearing loss exists. She stated that, because the damage is done when exposed to noise, a normal audiogram subsequent to the noise exposure would verify that the hearing had recovered without permanent loss. In summary, the audiologist concluded that she could find no medically sound basis on which to attribute to the post-service findings to the noise exposure in service. In regards the appellant's tinnitus, the February 2012 VA examiner noted that there was a high correlation between hearing loss, tinnitus, and noise exposure. The presence of a ratable hearing loss from the service or audiometric configuration consistent with noise exposure is a strong indicator that any reported tinnitus was also from noise exposure. Conversely, normal hearing from service strongly suggests that any reported tinnitus is less likely to be from noise exposure in service. She opined that, because the appellant's hearing was normal at separation from service, it is less likely as not that the reported tinnitus is related to the in-service noise exposure. Rather, she found that the appellant's reported tinnitus is more likely than not due to the existing hearing loss and/or noise exposure subsequent to service. First addressing the matter of an in-service injury, the Board notes that the appellant's service treatment records do not document the occurrence of, or treatment for, any specific incidence of acoustic trauma. However, the appellant is competent to assert the occurrence of an in-service injury, to include in-service noise exposure. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1991). he reports that his service duties included refueling jet airplanes and weapons fire. As such service would undoubtedly involve some, and possible significant, noise exposure, the Board accepts the appellant's assertion of in-service noise exposure as credible and consistent with his established service. Thus, although there is no objective evidence to support a specific incident of acoustic trauma in service, the Board accepts the appellant's assertions of in-service noise exposure as credible and consistent with the circumstances of his service. See 38 U.S.C.A. § 1154. Further, although the competent evidence does not reflect the presence of hearing loss in either ear to an extent recognized as a disability during the period of the appellant's Air National Guard service, the absence of evidence of such hearing loss in service is not fatal to the claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Likewise, as noted above, service connection may be granted for tinnitus (or other disability) diagnosed post-service upon a showing of a nexus between that disability and injury (to include noise exposure) or disease in service. See, e.g., 38 C.F.R. § 3.303(d). The above-cited evidence clearly reflects that the appellant currently has bilateral hearing loss to an extent recognized as a disability for VA purposes, and the appellant has asserted that he suffers from ringing in the ears, which is also referred to as tinnitus. Moreover, as noted above, the Board has accepted the appellant's assertions pertaining to noise exposure in service. Thus, the crux of this case turns on the question of whether the appellant's current bilateral hearing loss and tinnitus are related to his military noise exposure. The Board acknowledges that there are conflicting opinions with respect to whether the appellant's current bilateral hearing loss and tinnitus are related to in-service noise exposure. While the private audiologist opined that such a relationship was likely, the July 2010 and February 2012 VA examiners found it less likely than not that the appellant's current bilateral hearing loss and tinnitus are related to service. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other 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. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). A medical opinion may not be discounted solely because the examiner did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board finds that the February 2012 VA examiner's opinion to be the most probative. In so finding, the Board points out that the February 2012 examiner based her opinion on a review of the entire claims file, to include the pertinent in-service audiometric findings, and provided a rationale for the conclusions reached that is consistent with the evidence of record. Indeed, she specifically discussed how hearing loss and tinnitus generally present or develop when due to noise exposure. In contrast, the private audiologist did not provide any rationale for his opinion, did not indicate what specific service records were reviewed, did not discuss or account for the relevant audiometric findings in service, or distinguish between the appellant's type of service. While he noted that the appellant served in the early to mid-1960s, he did not observe that the appellant only served on ACDUTRA for a period of two months and otherwise had intermittent periods of INACDUTRA. He also did not discuss any relevant civilian noise exposure. The Board notes that a medical opinion that contains only data and conclusions is also not entitled to any weight. It is the factually accurate, fully articulate, sound reasoning for the conclusion that contributes probative value to a medical opinion. The Board must be able to conclude that the medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). See also Bloom v. West, 12 Vet. App. 185, 187 (1999); Black v. Brown, 5 Vet. App. 177, 180 (1995); Knightly v. Brown, 6 Vet. App. 200 (1994); Miller v. West, 11 Vet. App. 345, 348 (1998). Thus, the most persuasive opinion on the question of whether there is a nexus between the appellant's current bilateral hearing loss and tinnitus and service is that of the February 2012 VA examiner, which weighs against the claim. The Board has also considered the appellant's statements, including his Board hearing testimony, to the effect that he first noticed his hearing loss and tinnitus in service and that his current hearing symptoms are the same as those he first observed on service. The Board notes that the appellant is competent to report symptoms of hearing loss and tinnitus. Layno v. Brown, 6 Vet. App. 465, 470 (1994). While the appellant is competent to testify as to his observations, this testimony must be weighed against the other evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). In this case, the Board finds his current recollections and statements made in connection with a claim for VA compensation benefits to be of less probative value than the normal findings during service, his denial of ear trouble at that time, and the gap in time between service and his initial report of hearing loss and tinnitus. Thus, the preponderance of the evidence weighs against a finding that hearing loss and tinnitus manifested in service or for many years thereafter. Moreover, to the extent that the appellant alleges that his current bilateral hearing loss and tinnitus are related to the in-service noise exposure, the Board acknowledges that lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). In this case, the Board finds the probative value of the appellant's general assertions in this regard is outweighed by the probative value of the specific, reasoned opinion of the VA audiologist who provided the February 2012 opinion, particularly in light of her expertise and rationale based upon medical research. Based on the foregoing, the appellant's bilateral hearing loss and tinnitus are not causally or etiologically related to his ACDUTRA and INACDUTRA service, to include any noise exposure therein. Accordingly, the claims for service connection for bilateral hearing loss and tinnitus must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of- the-doubt doctrine. However, on these facts, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs