Citation Nr: 1306451 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 10-24 714 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for hearing loss. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran had active service from November 1967 to November 1969. This matter came before the Board of Veterans' Appeals (Board) on appeal from a January 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. The RO, in pertinent part, denied claims of service connection for hearing loss and tinnitus, as well as confirming and continuing denials of service connection for malaria and posttraumatic stress disorder (PTSD). A video hearing before the undersigned Veterans Law Judge was held at the RO in September 2011. The hearing transcript has been associated with the claims file. In January 2012, the Board issued a decision denying the claims of service connection for malaria and a psychiatric disorder (recharacterized PTSD) and remanding the claims of service connection for hearing loss and tinnitus for additional development. Thus, only the claims of service connection for hearing loss and tinnitus remain before the Board. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The competent and probative medical evidence of record preponderates against a finding that the Veteran's tinnitus is due to events in active service. 2. The competent and probative medical evidence of record preponderates against a finding that the Veteran's hearing loss is due to events in active service, and sensorineural hearing loss as an organic disease of the nervous system is not shown to have been manifested to a compensable degree within one year after the Veteran's separation from service in November 1969. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2012). 2. The criteria for service connection for hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the Veteran's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the Veteran pre-adjudication notice by letter dated in September 2009. VA has obtained service treatment and personnel records, assisted the Veteran in obtaining evidence (post-service VA outpatient treatment records), afforded the Veteran a VA examination, and afforded the Veteran the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claims at this time. Service Connection The Board has reviewed all the evidence in the Veteran's paper claims file and Virtual VA record (which contains additional VA outpatient treatment records reviewed by the RO in the October 2012 supplemental statement of the case). Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant 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 each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology can be demonstrated by showing (1) that a condition was "noted" during service; (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the postservice symptoms. Savage v. Gober, 10 Vet. App. 488 (1997). "[S]ymptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496. Service connection may also be granted for chronic disorders, such as sensorineural hearing loss, when manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Impaired hearing will be considered a disability for VA purposes when the auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) are 40 decibels or more; or when the thresholds for at least three of these frequencies 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. The provisions of § 3.385, however, do not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. Although that regulation speaks in terms of service connection, it operates to establish when a measured hearing loss is (or, more accurately is not) a "disability" for which compensation may be paid, provided that other requirements for service connection are otherwise met under 38 U.S.C.A. §§ 1110, 1112 and 38 C.F.R. §§ 3.303, 3.307. Hensley v. Brown, 5 Vet .App. 155 (1993). Prior to November 1967, audiometric testing results were reported in standards established by the American Standards Association (ASA). Since November 1, 1967, those standards have been established 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. In this decision, the Board has considered all lay and medical evidence as it pertains to the issues. 38 U.S.C.A. §§ 5107(b), 7104(a); 38 C.F.R. § 3.303(a). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran reports that he has tinnitus and hearing loss as a result of his active military service. Specifically, he testified before the Board that he did not perform duties as an equipment storage specialist during service as noted on his DD-214, but as a "tunnel rat" due to his small stature. He further testified that he was exposed to combat noise (grenades, mortar attacks, small arms fire) in the closed environment of the tunnels. He informed the undersigned that he did not have anyone (buddies or peers) to corroborate his change of duty assignment as they were either dead or he did not know their names. He further informed the undersigned, that though he was married at the time, he did not share his experiences with his wife. He stated that he did not suffer from either tinnitus or hearing loss in service. He indicated that he noticed both after his discharge from service. Tinnitus was described as not constant, but occurring every other week for a couple of hours at a time. In a statement from the Veteran's wife, she indicated that the Veteran's hearing became increasingly worse in the last five to eight years, the last two years being the worst. The service treatment records reflect no histories, findings, or treatment suggestive of tinnitus or hearing loss. The July 1967 enlistment examination contained converted auditory thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 (30) 5 (15) 0 (10) - -5 (0) LEFT 5 (20) 0 (10) 5 (15) - -5 (0) On the September 1969 report of medical history conducted at separation, the Veteran specifically denied ear trouble or hearing loss. The corresponding separation examination reflects normal clinical findings. On the authorized audiological evaluation, pure tone thresholds were zero decibels at all Hertz frequencies. The whispered and spoken voice tests were 15/15. Post-service, VA outpatient treatment records dated between 2008 and 2012 were negative for complaints, treatment, or diagnoses of either tinnitus or hearing loss. The Veteran's tympanic membranes were repeatedly found to be intact and he repeatedly denied ear pain or discharge. Most recently, in August 2011, the Veteran denied any complaints of hearing disturbance. Pursuant to the Board remand, the Veteran was afforded a VA examination in April 2012. The Veteran reported non localizing tinnitus, occurring periodic (monthly for about half an hour). It was described as ringing since he came back from overseas. The Veteran further reported hearing loss as a result of being a tunnel rat in service. The Veteran had post-military noise exposure while working at the airport for 20 years. He denied any recreational noise exposure. The examiner opined tinnitus was less likely as not caused by or a result of military noise exposure since there was no significant threshold shift during military service. The examiner further opined bilateral sensorineural hearing loss was not caused by or the result of occupational noise exposure during active military service. The examiner reasoned that both pre-induction and separation audiological examinations were normal, with no significant threshold shift. The examiner further indicated that the American College of Occupational and Environmental Medicine published an evidence-based statement in October 2002 stating hearing loss due to noise did not progress (in excess of what would be expected from the addition of age related threshold shifts) once the exposure to noise was discontinued. The examiner concluded that there was in all likelihood, multiple etiologies for hearing loss occurring post-military service that were responsible for the Veteran's hearing loss to include sociocusis, civilian noise exposures, presbycusis, and idiopathic factors. After review of the evidence, the Board finds service connection must be denied because the competent, probative evidence does not suggest that tinnitus or hearing loss had an onset in service or is causally related to service. The service treatment records are silent as to any complaints suggestive of tinnitus or hearing loss, and the first diagnosis of record dates 43 years after separation. The long time lapse can be considered, along with other factors, as evidence of whether an injury or disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board acknowledges that the Veteran reported that he has had both hearing loss and tinnitus since his discharge from service. The Board finds this history is not credible, and thus not probative, however, as it is contradicted by the absence of complaints or treatment for the claimed conditions post-service (except on VA examination) and the negative histories as to hearing disturbances provided to VA treatment providers most recently in 2011. Thus, the Board finds the probative evidence does not suggest the existence of a chronic disorder manifested by tinnitus or hearing loss during service or within a year of discharge with regard to hearing loss, or until 43 years after service; in other words, there is no continuity of symptomatology. Service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. The Board finds that the preponderance of the competent evidence is against a finding of a nexus between the Veteran's bilateral sensorineural hearing loss and tinnitus, and his active service, despite his contentions to the contrary. In that regard, the Board finds substantially probative the April 2012 VA medical opinion undertaken specifically to address the matter on appeal. The opinion was rendered after review of the Veteran's claims file, including his service treatment records, and physical examination of the Veteran; the opinions are clearly based on an accurate history. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (finding that a physician's access to the claims file and the thoroughness and detail of the opinion are important factors in assessing the probative value of a medical opinion). The only evidence of record to support the Veteran's contentions is his statements and testimony. The Veteran has claimed that his hearing loss and tinnitus are the result of noise exposure while performing duties as a tunnel rat. The Board acknowledges that the Veteran is competent to report a history of noise exposure. However, the Board finds this history is not credible (and thus not probative) in light of the absence of documentation of his service as a tunnel rat. The service personnel records indicate that the Veteran served in Vietnam between May 1968 and May 1969. The records indicate that the Veteran was a "CE repair parts specialist" in Hue from May 1968 through September 1968, a "Stock Cont & Account Specialist" in Qui Nhon from September 1968 through January 1969, a "CE repair parts specialist" in Phu Bai from January 1969 to March 1969, and a light vehicle driver in Phu Bai from March 1969 through May 1969. The Veteran's statements do not establish a nexus between any acquired pathology and his military service. Although lay evidence is acceptable to prove the occurrence of an injury during active duty or symptomatology over a period of time when such symptomatology is within the purview of or may be readily recognized by lay persons, lay testimony is not competent to prove a matter requiring medical expertise. With regard to sensorineural hearing loss, it requires specialized training for a determination as to diagnosis and causation and is not susceptible of lay opinions on etiology. See Woehlaert v. Nicholson, 21 Vet. App. 456 (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"). Tinnitus is also not susceptible of lay opinion on etiology. Therefore, the Board cannot give decisive probative weight to the opinions of the Veteran about the origins of his bilateral sensorineural hearing loss and tinnitus because he is not qualified to offer such opinions. Likewise, his representative is not competent to provide a probative opinion on the question of etiology, either. Therefore, the Board finds that the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for bilateral hearing loss and tinnitus, and thus, the benefit-of-the-doubt doctrine does not apply. As such, the evidence is insufficient to support a grant of service connection for any such hearing loss or tinnitus. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Entitlement to service connection for tinnitus is denied. Entitlement to service connection for hearing loss is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs