Citation Nr: 1306100 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 10-10 628 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran served on active duty from January 1949 to October 1952, and from January 1953 to January 1970. This case comes to the Board of Veterans' Appeals (Board) on appeal of an October 2009 rating decision of the St. Paul, Minnesota, Regional Office (RO) of the Department of Veterans Affairs (VA), which reopened and denied claims for service connection for bilateral hearing loss and tinnitus. The case was previously before the Board in August 2010 when the claims for service connection for bilateral hearing loss and tinnitus were reopened, but denied on the merits. The appellant appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court), and that part of the Board's decision that denied service connection for bilateral hearing loss and tinnitus on the merits was vacated pursuant to a March 2011 Order, following a Joint Motion for Remand (JMR). The parties requested that the Board discuss the application of the Court's decision in Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court granted the JMR and remanded the case to the Board. The case was remanded by the Board in July 2011, and July 2012, so that VA examinations/supplemental opinions could be obtained. These were performed and the case is returned for further appellate consideration. 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). FINDING OF FACT The Veteran does not have bilateral hearing loss, or tinnitus, that was caused by his service, or which was caused or aggravated by a service-connected disability. CONCLUSION OF LAW Bilateral hearing loss, and tinnitus, were not caused by the Veteran's service; nor were they caused or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Service Connection The Veteran contends that service connection should be established for bilateral hearing loss, and tinnitus. It is asserted that, during his 21 years of service in the Air Force, he was exposed to a significant amount of acoustic trauma of aircraft engines, as well as having been in the proximity of a mortar/rocket explosion while he was serving in the Republic of Vietnam (RVN) in 1968. In his claim (VA Form 21-526), received in February 2006, the Veteran indicated that his hearing loss and tinnitus began in March 1970. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection may also be granted for an organic disease of the nervous system, such as a sensorineural hearing loss, when it is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). It is appropriate to consider high frequency sensorineural hearing loss as an organic disease of the nervous system and, therefore, subject to presumptive service connection. See Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995; 38 C.F.R. § 3.309(a) (2012). Applicable VA regulations provide that impaired hearing shall be considered a disability when the auditory thresholds in any of the frequencies of 500, 1,000, 2,000, 3,000, and 4,000 Hz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores are 94 percent or less. 38 C.F.R. § 3.385 (2012). When a medical professional determines that a current condition is related to an inservice event, then it necessarily follows that the current condition was incurred during service. Godfrey v. Derwinski, 2 Vet. App. 352 (1992) (if a medical relationship exists between current hearing loss and inservice acoustical trauma, it follows that an injury was incurred during service); Hensley v. Brown, 5 Vet. App. 155 (1993) (notwithstanding that hearing loss was not noted upon separation, a medial relationship between current hearing loss and noise exposure during service demonstrates that the veteran incurred an injury during service). Service connection may be granted, on a secondary basis, for a disability, which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2012). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). The law provides that, in the case of any veteran who engaged in combat with the enemy in active service, satisfactory lay or other evidence of an injury incurred in service shall be accepted as sufficient proof of service incurrence of the injury if the evidence is consistent with circumstances of service and notwithstanding that there is no official record of service incurrence of the injury. 38 U.S.C.A. § 1154(b) (West 2002); see also VAOPGCPREC 12-99, 65 Fed. Reg. 6256 - 6258 (2000). However, in each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). With regard to participation in combat, the Veteran's personnel file (DA Form 20) shows that his duty titles have primarily involved communications duties, to include teletype operator, communications center specialist, shift supervisor telephone exchange, traffic coordination supervisor, senior analysis clerk, communications elect programs management, and assistant/C-E programs manager. His most recent discharge (DD Form 214) shows that the Veteran's military occupation specialty was "comm-elec programs Mgt Tech," which had a related civilian occupation listed as a statistical clerk. This evidence shows that he received the Vietnam Service Medal, and the Republic of Vietnam Campaign Medal. The Veteran's personnel file (DA Form 20) shows that he served his entire tour of duty in Vietnam, from February 1968 to August 1969, with the 1882nd Communications Squadron, Phan Ranh Air Base, Vietnam (AFCS), during which time his principal duty was "plans and programs monitor." The appellant's other DD 214s for his other enlistment periods reveal MOS's of teletype operator (1953-1956), communication center specialist (1956-1959), and communication specialist (1959-1965). Given the foregoing, participation in combat is not established and the Veteran is not entitled to the presumptions at 38 U.S.C.A. § 1154(b). The Board also finds that the Veteran is not a credible historian. As an initial matter, the Board stresses that the Veteran's claim that he was exposed to noise from aircraft, and a mortar attack in 1968, has been conceded. However, as to his other assertions, in the September 2009 VA examination report, he stated that he was exposed to "combat noise," and that he flew and worked for 12 years as a gunner. He also gave an inconsistent and implausible history in which he was thrown 60 feet by a rocket blast, but he has stated that he did not receive medical treatment due to this blast. Compare May 2006 VA examination report (in which he stated that he was thrown "several feet"); see also Veteran's 2007 statement (in which he reported that he never received any relevant treatment because his base was under attack). The Board has determined that participation in combat is not shown. His service records show only that he received training in communications, computers, and electronics; they do not show training as a loadmaster, nor do they show receipt of an Air Medal, or any other award or commendation indicating that he had the claimed duty of 12 years flying as a gunner, or service as a loadmaster. Although he asserts that he had hearing loss during service (i.e., in 1968), he denied a history of hearing loss upon separation from service. He has provided widely disparate histories for the onset of his tinnitus. See e.g., 2006 and 2009 VA examination reports (i.e., beginning in1968, and beginning no earlier than 1994). The Veteran's earliest specific claims for hearing loss and tinnitus were received in 2006, many years after service. Given the foregoing, that the Board finds that he is not a credible historian. See Wilson v. Derwinski, 2 Vet. App. 16, 19-20 (1991); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (in determining whether documents submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). The Veteran's service treatment reports show include a separation examination report from his first period of active duty, dated in September 1952, which shows that whispered voice test results were 15/15, bilaterally. See also December 1956 examination report (same). A January 1959 examination report shows that spoken voice test results were 15/15, bilaterally. A December 1967 examination report contains audiometric test results which do not show that he had hearing loss as defined for VA purposes at 38 C.F.R. § 3.385. See also Veteran's retirement examination report, dated in July 1969. In associated "reports of medical history" to the December 1967 and July 1969 examination reports, the Veteran denied having a history of "ear, nose or throat trouble," running ears, or hearing loss. In all of the aforementioned examination reports, the Veteran's ears and drums were clinically evaluated as normal. As for the post-service medical evidence, it consists of VA and non-VA reports, dated between 1992 and 2012. This evidence includes a VA examination report, dated in May 2006, which shows that the examiner stated that the Veteran's claims file had been reviewed. The report contains audiometric testing showing mild slowly sloping to moderately severe sensorineural hearing loss in both ears. The levels demonstrated were consistent with bilateral VA hearing impairment. See 38 C.F.R. § 3.385. The examiner concluded that it is less likely as not that the Veteran's hearing loss and tinnitus are related to military noise exposure. She accepted the Veteran's report of being near a rocket blast while in Vietnam in 1968 as true, however, she explained that the Veteran had normal hearing throughout his service, that there was no record of treatment for tinnitus, that his assertions of inservice hearing loss could not by corroborated in the service treatment reports, and that his hearing was normal upon separation from service. Private audiometric testing conducted in June 2009 demonstrated moderate hearing loss in the lower frequencies and severe hearing loss in the high frequencies. The examiner noted the Veteran's exposure to acoustic trauma, including aircraft engines, rifle fire, and mortar fire in service. The examiner, "D.O." (whose qualifications are not listed) rendered an opinion that the Veteran's hearing loss was more likely than not caused by military service, and it contains the interesting assertion, "Any decision other than to approve [the Veteran] is contradictory to the evidence and Federal Statute." A VA examination report, dated in September 2009, shows that the examiner stated that the Veteran's claims file had been reviewed. The Veteran reported having an onset of hearing loss during service, and having had tinnitus for 10 to 12 years. He reported being exposed to "combat noise" during service, that he had been a "load master" while in Vietnam, that he had flown and worked as a gunner for 12 years, and that he had been blown "60 feet" from a rocket blast. He denied recreational and occupational noise exposure, and stated that he had started and ran a credit management company for 16 years. He denied a history of ear surgery, or chronic ear infections. The examiner noted that there was a request for an examination in 1974 involving an "ear condition," with ENT (ear, nose and throat) and audiometric examinations required (there is no indication that these examinations were ever performed, and a 1974 rating decision states that the Veteran failed to report for his examinations). On examination, the Veteran had bilateral hearing loss, as defined for VA purposes at 38 C.F.R. § 3.385. The examiner, an audiologist, concluded that the Veteran's hearing loss and tinnitus were not caused by or a result of any acoustic trauma, injury, disease, or event in military service. She explained that the Veteran's tinnitus, by self-report, began only in the last several years, and that his service treatment reports showed that his hearing was within normal limits in both 1967 and 1969. The examiner further noted that any issue involving the 1974 notation of an "ear condition" could not be resolved without resorting to mere speculation. A VA examination report, dated in May 2012, shows that the examiner, an audiologist, indicated that the Veteran's claims file had been reviewed. The Veteran had bilateral hearing loss, as defined for VA purposes at 38 C.F.R. § 3.385. Based upon a review of the claims file, the VA examiner found that the Veteran's hearing loss and tinnitus were not at least as likely as not caused by or a result of an event in military service. In her rationale, the examiner acknowledged the Veteran's exposure to military noise. However, she explained that the Veteran's hearing was within normal limits from 1967 to 1969, that there was not a significant shift in hearing threshold levels in 1969 in either ear, and that the Veteran had reported the onset of tinnitus was 10 to 12 years ago in the 2009 VA examination, indicating an onset of at least 27 years after his retirement from active service. In July 2012, the Veteran's representative submitted an article entitled "Adding Insult to Injury: Cochlear Nerve Degeneration after "Temporary" Noise-Induced Hearing Loss." In July 2012, the Board remanded these claims. The Board directed that the claims file be returned to the audiologist who wrote the May 2012 opinion, to include the Veteran's submitted article, and that new etiological opinions be obtained. In September 2012, a supplemental opinion was obtained from the VA audiologist who performed the Veteran's May 2012 VA examination. The audiologist indicated that the Veteran's claims file had been reviewed. The audiologist indicated that the claimed conditions were less likely as not (less than 50 percent probability) incurred in or caused by the Veteran's service. The audiologist stated that the Veteran's submitted article had been reviewed, and that, "While it is a possibility, and interesting, more research in this area needs to be completed. At this time, a majority of the research has reached the conclusion that delayed effects of noise exposure is unlikely." The audiologist went on to cite a study from the 2006 Institute of Medicine's "Noise and Military Service, Implications for Hearing Loss and Tinnitus," which indicated that: [T]here is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure. Although the definitive studies to address this issue have not been performed, based on the anatomical and physiological date available on the recovery process following noise exposure, it is unlikely that such delayed effects occur. The audiologist further stated the following: although military noise exposure is conceded, the Veteran's hearing was within normal limits in 1967 and 1969. When comparing audiometrics, there was not a significant shift in hearing threshold levels in either ear. The Veteran reported an onset of tinnitus at least 27 years after separation from service and exposure to outside factors. It is less than likely that the Veteran's tinnitus is due to or a symptom of his hearing loss. Research has indicated that tinnitus itself is not caused by or a symptom of hearing loss. Hearing loss and tinnitus are both symptoms of other diseases and insults. The audiologist concluded that the Veteran's hearing loss and tinnitus are less likely as not/not at least as likely as not, incurred in or caused by his service. The Board finds that the claims must be denied. Briefly summarized, the Veteran is not shown to have received any relevant treatment during service, and hearing loss was not noted upon separation from service. The earliest relevant post-service medical evidence is dated in 2006. This is about 35 years following separation from service. This lengthy period without treatment is evidence that there has not been a continuity of symptomatology, and it weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). In addition, the September 2012 VA opinions both weigh against the claims. These opinions are considered highly probative, in part because the audiologist indicated that the Veteran's C-file had been reviewed. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (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). The audiologist gave a sufficient explanation for the bases of her conclusions, which included a summary and discussion of the Veteran's service treatment reports. Neives-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (most of the probative value of a medical opinion comes from its reasoning); see also Reonal v. Brown, 5 Vet. App. 458, 460 (1993). The VA audiologist explained, in part, that there was not a significant shift in hearing threshold levels in 1969 in either ear. Hensley. There is no competent evidence to show that sensorineural hearing loss in either ear was manifested to a compensable degree within one year of separation from service. See 38 C.F.R. §§ 3.307, 3.309. To the extent it may have been suggested that the Veteran's tinnitus is secondary to his hearing loss, the Board has determined that service connection for hearing loss is not warranted, and neither of the claimed disabilities is shown to have been caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310. Accordingly, the Board finds that the preponderance of the evidence is against the claims, and that the claims must be denied. In reaching this decision, the Board has considered the June 2009 private audiology report. However, this opinion is not shown to have been based on a review of the Veteran's C-file, or any other detailed and reliable medical history. Prejean. Although it appears to have been based on a current audiometric test, it does not cite to any clinical findings during service, or thereafter, or any medical studies, or otherwise provide an explanation for the opinion other than to indicate that the Veteran was exposed to loud noise during service. Neives-Rodriguez; Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion must support its conclusion with an analysis the Board can consider and weigh against other evidence in the record). Accordingly, this evidence has not been afforded sufficient probative value to warrant a grant of the claim. With regard to the Veteran's own contentions, a layperson is generally not capable of opining on matters requiring medical knowledge. Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Although a lay person may be competent to report the etiology of a disability, the disabilities at issue are not the type of disorders which are susceptible to lay opinion concerning etiological cause. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The issues on appeal are based on the contentions that hearing loss, and tinnitus, were caused by service. However, the Veteran has been found not to be credible. Neither of the claimed disorders are shown during active duty service. On the contrary, on consideration of his exposure to noise in-service along with the post-service medical evidence, a VA examiner determined that it was less likely as not that the Veteran's hearing loss and/or tinnitus was related to his active service. The opinion of the examiner, an individual trained to assess hearing loss and tinnitus claims, far outweighs the lay opinion of the Veteran. The Board is fully aware that applicable regulation requires continuity of symptomatology, not continuity of treatment. Wilson v. Derwinski, 2 Vet. App. 16 (1991). However, in a merits context, the lack of evidence of treatment may bear on the credibility of the evidence of continuity. Savage v. Gober, 10 Vet. App. 488 (1997). In this case, the Board has determined that the aforementioned VA opinions are highly probative evidence against the claims. The examiner fully considered the Veteran's assertions of continuity of hearing loss symptomatology since service, (and his reported tinnitus history) and still provided negative opinions. Given the foregoing medical opinions, and the other evidence of record, the Board finds that the service treatment reports, and the post-service medical evidence, outweigh the Veteran's contentions to the effect that he has the claimed conditions that are related to his service. Accordingly, the Board finds that the preponderance of the evidence is against the claims, and that the claims must be denied. The Board has considered the applicability of "benefit of the doubt" doctrine, however, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant the resolution of these matters on that basis. 38 U.S.C.A. § 5107(b). II. Veterans Claims Assistance Act (VCAA) The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in August 2009. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issues on appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's VA and non-VA medical records. The Veteran was afforded two VA examinations to determine the nature and etiology of his hearing loss and tinnitus, and etiological opinions have been obtained. In July 2011 and July 2012, the Board remanded these claims. Following the July 2011 remand, the claim of exposure to a mortar attack was verified. Most recently, the Board directed that supplemental etiological opinions be obtained. To that end, 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 examination (in May 2012) and the etiological opinions (in September 2012) were adequate, as they were predicated on a full reading of the Veteran's medical records in the claims file, and on a complete examination. All of the pertinent evidence of record was considered, to include the statements of the Veteran, and the examiner provided a rationale for the opinions stated, relying on and citing to the records reviewed. Given the foregoing, the Board finds that there has been substantial compliance with its July 2011 and July 2012 remands. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to a veteran are to be avoided). Simply stated, the Board finds that the service and post-service medical record provides evidence against the claims for hearing loss, and tinnitus. The Board concludes, therefore, that decisions on the merits at this time do not violate the VCAA, nor prejudice the appellant under Bernard v. Brown, 4 Vet. App. 384 (1993). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER The appeal is denied. ____________________________________________ T. STEPHEN ECKERMAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs