Citation Nr: 1306396 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 12-28 153 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for right ear hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran served on active duty from August 1968 to August 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision, dated in October 2010, of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, tinnitus first manifested during active duty service and has persisted since that time. 2. Resolving reasonable doubt in the Veteran's favor, left ear hearing loss first manifested during active duty service and has persisted since that time. 3. There is no current hearing loss disability of the right ear. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for service connection for left ear hearing loss have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012). 3. The criteria for service connection of right ear hearing loss have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. With respect to left ear hearing and tinnitus claims, the Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. As to right ear hearing loss claim, an August 2010 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in a September 2012 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records, VA medical treatment records have been obtained; he did not identify any private records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). A VA examination was conducted and an opinion was obtained in October 2010; the Veteran has not argued, and the record does not reflect, that this examination/opinion was inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4). The Board finds the examination/opinion to be adequate for a determination. The examiner reviewed the claims file and provided a rationale for the opinion based on objective findings, reliable principles and sound reasoning. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). II. Service Connection Criteria Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. Sensorineural hearing loss, as an organic disease of the nervous system, is a listed chronic diseases for purposes of presumptive service connection. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). The applicable presumptive period is one year following separation from service. 38 C.F.R. § 3.307(a)(3). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The nexus between service and the current disability can be satisfied by competent evidence of continuity of symptomatology and evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 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 (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 4000 Hz 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 (2012). Even if disabling loss is not demonstrated at separation, a veteran may establish service connection for a current hearing disability by submitting evidence that a current disability is causally related to service. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Analysis A. Left Ear Hearing Loss & Tinnitus The Veteran asserts entitlement to service connection for left ear hearing loss and tinnitus on the basis of excessive noise exposure during service. His DD Form 214 shows his military occupational specialty (MOS) was reciprocating engine aircraft mechanic, and hearing conservation reports reflect his primary work areas were on the flight line and in the hanger shop. The Board accepts that the Veteran was routinely exposed to loud noise during service. A hearing loss disability is not noted at service entrance. The July 1968 entrance examination report shows his hearing was assigned a profile of "1." See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (observing that the 'PULHES' profile reflects the overall physical and psychiatric condition of the Veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)). An October 1968 Hearing Conservation report shows pure tone thresholds reported were as follows: HERTZ 500 1000 2000 3000 4000 LEFT -15(0) -15(-5) -5(5) 20(30) 15(20) (Note: Prior to November 1967, audiometric test results were reported in standards set forth by the American Standards Association (ASA). Those are the figures on the left of each column and are not in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses.) Although the audiometry testing was accomplished after November 1967, the October 1968 findings were specifically noted to be reported in ASA standards. There is no indication that the results were converted from ASA units to ISO-ANSI units. An October 1969 Hearing Conservation report shows pure tone thresholds, in decibels, were as follows HERTZ 500 1000 2000 3000 4000 LEFT 40 45 35 30 30 A February 1971 Hearing Conservation report shows pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 25 20 15 15 20 The October 2010 VA examiner stated that the early loss of hearing reflected in the low frequency impairment at 500 Hertz on the left at separation is attributable to otosclerosis, which was noted to have been diagnosed three years earlier by an ear, nose, and throat (ENT) doctor. Tinnitus was also attributed to the middle ear condition. The Veteran reported having an onset of hearing loss in association with noise exposure during service. Furthermore, a diagnosis of otosclerosis does not preclude the Veteran from having additional hearing loss from acoustic trauma. The October 1969 audiometric results show that the left ear hearing loss that the Veteran sustained during service was not limited to the low frequencies. Therefore, it cannot be presumed to be due solely to otosclerosis. The Veteran is competent to report having hearing loss and tinnitus and can describe the symptoms of such without any specialized knowledge or training. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). His credible statement indicates that he has experienced tinnitus and hearing loss since his active service. The left ear hearing loss met the standard to be considered a disability under 38 C.F.R. § 3.385 at the October 2010 VA examination based on the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 4000 Hz being 26 decibels or greater for the left ear and both ears having Maryland CNC Test results of less than 94 percent. At worst, the evidence with respect to the association between the Veteran's bilateral hearing loss and tinnitus and his active service is in equipoise. Accordingly, service connection is warranted. B. Right Ear Hearing Loss The Veteran contends that he has current right ear hearing impairment, which he relates to in-service noise exposure. Excessive noise exposure in service is established. His DD Form 214 shows his military occupational specialty (MOS) was reciprocating engine aircraft mechanic, and hearing conservation reports reflect his primary work areas were on the flight line and in the hanger shop. Although hearing loss is shown during service in October 1969, the July 1972 separation examination report shows pure tone thresholds, in decibels, were as follows HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 5 5 A VA audio examination was conducted in October 2010; the examiner stated the claims file was reviewed in conjunction with the examination. Audiometric testing showed: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 10 10 10 The examiner reported that right ear hearing was normal from 500 to 4000 Hertz, and speech discrimination was 96 percent correct on the right. The examiner concluded that the Veteran has functionally normal hearing on the right. For VA purposes, a hearing loss disability is defined as: "when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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. Because a right ear hearing loss disability by regulation is not shown at any time during the appeal period, a nexus opinion was not required. There is evidence of decreased hearing acuity in the right ear during service. However, this had not progressed to a hearing disability at separation, and there is no competent and credible evidence that any hearing damage in the right ear continued to progress once the Veteran was removed from the noisy environment of service. The right ear has never, at any time during the appeal period, demonstrated findings meeting the regulatory definition of a hearing loss disability for VA purposes. 38 C.F.R. § 3.385. In the absence of a current disability, service connection cannot be granted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran, while competent to report functional complaints of hearing difficulty, lacks the specialized knowledge, training, and equipment needed to establish the presence of a hearing loss disability under the regulations. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). ORDER Service connection for tinnitus is granted. Service connection for left ear hearing loss is granted. Service connection for right ear hearing loss is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs