Citation Nr: 1306648	
Decision Date: 02/27/13    Archive Date: 03/01/13

DOCKET NO.  09-29 052	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service connection for shell fragment wound (SFW) of the left knee.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARINGS ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

T. Mainelli, 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 September 1959 to August 1961.

This case comes before the Board of Veterans' Appeals (Board) on appeal from January 2009 and November 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.

In August 2011, the Veteran testified at a hearing before the RO.  In January 2012, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge (VLJ).  Transcripts of both hearing are associated with the claims folder.

Also in January 2012, the Veteran submitted a waiver of RO review of new evidence submitted at his video-conference hearing.

In September 2012, the Board referred this case to the Veterans Health Administration (VHA) to obtain an expert medical opinion.  The VHA opinion was received in November 2012.  In November 2012, the Board provided a copy of this opinion to the Veteran and his representative with a 60-day period of time to provide additional evidence and/or argument in this case.  The Veteran's representative provided additional argument in an Informal Hearing Presentation (IHP) dated November 30, 2012.

The issue of entitlement to service connection for SFW of the left knee is addressed in the REMAND portion of this decision and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC.

A review of the Virtual VA electronic records storage system does not reveal any relevant evidence which has not been associated with the paper claims folder.


FINDINGS OF FACT

1.  The Veteran's bilateral hearing loss, which first manifested many years after service, is not causally related to active service.

2.  The Veteran's tinnitus, which first manifested many years after service, is not causally related to active service.


CONCLUSIONS OF LAW

1.  Service connection for bilateral hearing loss is not warranted.  38 U.S.C.A. §§ 1131, 1137, 5107 (West 2002); 38 C.F.R. § 3.385 (2012).

2.  Service connection for tinnitus is not warranted.  38 U.S.C.A. §§ 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Applicable Law and Regulations

The Veteran seeks to establish his entitlement to service connection for bilateral hearing loss and tinnitus.  Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service.  See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

A disease must be shown to be of a chronic nature in service, or if not chronic, then seen in service with continuity of symptomatology demonstrated after discharge from service.  38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494- 97 (1997).  Disorders diagnosed after discharge may still be service-connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Certain chronic diseases, such as sensorineural hearing loss, may be presumed to have been incurred in service if manifest to a compensable degree within one year from discharge from service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied.  38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. § 3.309(a).  See Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995 (characterizing high frequency sensorineural hearing loss as an organic disease of the nervous system).

Under VA regulations, impaired hearing is considered 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.

The claimant bears the burden of presenting and supporting his/her claim for benefits.  38 U.S.C.A. § 5107(a).  See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009).  In its evaluation, the Board shall consider all information and lay and medical evidence of record.  38 U.S.C.A. § 5107(b).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant.  Id.  Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner."  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Notably, the benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility.  See 38 C.F.R. § 3.102.

A lay claimant is competent to provide testimony concerning factual matters of which he or she has firsthand knowledge (i.e., reporting something seen, sensed or experienced).  Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005).  Under certain circumstances, lay statements may serve to support a benefits claim by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

In Barr, the Court emphasized that 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 the presence or absence of the claimed symptomatology.

However, there are clearly limitations regarding the competence of a lay claimant to speak to certain matters, such as those involving medical diagnosis and etiology.  See Jandreau, 492 F.3d at 1377 (Fed. Cir. 2007) (noting that a layperson not competent to diagnose a form of cancer).  VA has defined competent lay evidence as any evidence not requiring that the proponent have specialized education, training or experience.  38 C.F.R. § 3.159(a)(1).  Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a layperson.  Id.  Further, competent medical evidence is defined as evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions.  38 C.F.R. § 3.159(a)(2).

In cases where there are conflicting statements or opinions from medical professionals, it is within the Board's province to weigh the probative value of those opinions.  In Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993), the Court stated: 

The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators; . . . 

So long as the Board provides an adequate reason or basis for doing so, the Board does not err by favoring one competent medical opinion over another.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995). 

The VA benefits system does not favor the opinion of a VA examiner over a private examiner, or vice versa.  See 38 U.S.C.A. § 5125; White v. Principi, 243 F.3d 1378, 1381 (Fed. Cir. 2001) (declining to adopt the treating physician rule for adjudicating VA benefits).  Regardless of the source, an examination report must minimally meet the requirement of being sufficiently complete to be adequate for the purpose of adjudicating the claim.  See 38 U.S.C.A. § 5125; 38 C.F.R. § 4.2.

The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion.  See Sklar v. Brown, 5 Vet. App. 140 (1993). 

A medical examiner's review of the claims folder may heighten the probative value of an opinion, as the claims folder generally contains all documents associated with a veteran's disability claim, including not only medical examination reports and service treatment records (STRs), but also correspondence, raw medical data, financial information, RO rating decisions, Notices of Disagreement, materials pertaining to claims for conditions not currently at issue and Board decisions disposing of earlier claims.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). 

However, an examiner's review of the claims folder is not required in each case.  See Snuffer v. Gobber, 10 Vet. App. 400, 403-04 (1997) (review of claims file not required where it would not change the objective and dispositive findings made during a medical examination); see also D'Aries v. Peake, 22 Vet. App. 97, 106 (2008) (holding that it is not necessary for a VA medical examiner to specify review of the claims folder where it is clear from the report that the examiner has done so and is familiar with the claimant's extensive medical history). 

A significant factor to be considered for any opinion is based on an accurate factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment.  See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). 

Although formal rules of evidence do not apply in the VA benefits system, the Court has indicated that recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the adjudicator's decision.  Rucker v. Brown, 10 Vet. App. 67, 73 (1997).  Within the VA benefits system, VA medical examiners and private physicians offering medical opinions in veterans' benefits cases are essentially considered expert witnesses.  Nieves-Rodriguez, 22 Vet. App. 295 (2008). 

In Nieves-Rodriguez, the Court indicated that the Federal Rules of Evidence for evaluating expert medical opinion before U.S. district courts, Fed.R.Evid. 702, are important, guiding factors to be used by VA adjudicators in evaluating the probative value of a medical opinion.  The factors identified in Fed.R.Evid 702 are as follows: 

(1) The testimony is based upon sufficient facts or data; 
(2) the testimony is the product of reliable principles and methods; and 
(3) the expert witness has applied the principles and methods reliably to the facts of the case. 

II.  Factual Summary

The Veteran had active service in the U.S. Army from September 1959 to August 1961.  His Department of Defense (DD) Form 214 shows that his military occupational specialty (MOS) was as an armor crewman.  His last duty assignment and major command was Company B, 2nd Heavy Tank Battalion, 33rd Armor Division.  Thus, the Board finds that the Veteran's report of in-service noise exposure to significant acoustic trauma as a tank driver is credible because it is consistent with the facts and circumstances of his active service.

The Veteran's STRs show that, at his induction (or enlistment) physical examination in September 1959, a clinical evaluation of his ears was normal.  His hearing was "15/15" bilaterally on whispered voice hearing test.  An audiometric examination dated "15-9-59" (which is located in the STRs rather than the induction examination report) revealed pure tone thresholds, in decibels, as follows:




HERTZ




500
1000
2000
3000
4000
5000
RIGHT
0
0
5
5
10
25
LEFT
0
0
0
0
0
15

In pertinent part, the STRs reflect that the Veteran was issued ear plugs in March 1961.

The Veteran's June 1961 separation physical examination does not reflect any report of hearing loss or tinnitus.  A clinical evaluation of the Veteran's ears was normal.  His hearing was 15/15 bilaterally on whispered voice hearing test.  The audiometric testing demonstrated pure tone thresholds, in decibels, as follows:




HERTZ




250
500
1000
2000
4000
5000
RIGHT
15
15
5
5
0
5
LEFT
10
10
0
0
0
0

Postservice, the Veteran underwent VA Compensation and Pension (C&P) examination in August 1972 to evaluate a claimed scrotal cyst.  The examination report reflects a normal (N) clinical evaluation of the ears.  A checklist box for "HEARING LOSS NOTED" was checked no.

A September 2004 VA clinic record reflected the Veteran's denial of hearing loss or tinnitus.  His auditory acuity was described as grossly intact.

The Veteran filed his original service connection claim for hearing loss in August 2008.  VA clinic records include an August 2008 audiology consultation wherein the Veteran reported difficulty hearing and understanding his family and friends "for the past (2) years."  He also described tinnitus as a constant ringing primarily in his right ear.  He denied a history of otalgia, otorrhea, dizziness or past ear surgeries.  He reported two years of military service with exposure to noise from tanks, firearms and explosions.  Postservice, he had worked 37 years in a manufacturing environment without the use of hearing protection.  The VA examiner interpreted audiometric findings as demonstrating a bilateral fairly symmetrical mild to severe degree of sloping sensorineural hearing loss.  The Veteran's word recognition scores were described as good.

On VA C&P audiology examination in December 2008, the Veteran dated the onset of bilateral hearing loss to his military days.  He also reported tinnitus which he described as buzzing sound in his ears.  The Veteran described unprotected in-service noise exposure to gunfire, engine noises, and the loading and firing of ammunition and cannons. He reported that his post-service employment as a cutter in a dress factory "had not been noisy."  He denied any recreational noise exposure.  He had been issued hearing aids in August 2008 which were "definitely helping him to hear better."  Audiometric testing demonstrated pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
35
45
70
85
LEFT
25
35
35
55
70

Speech discrimination scores were 78 percent for the right ear and 74 percent for the left ear.  Otoscopic examination showed clear external auditory canals with intact tympanic membranes.  Tympanometry showed normal middle ear functioning for both ears. 

The December 2008 VA C&P examination report with addendum reflected diagnoses of bilateral mild to severe sloping sensorineural hearing loss and tinnitus.  It was opined that, following a review of the claims file, because there was no bilateral hearing loss noted at the Veteran's separation physical examination in June 1961, it was less likely than not that his current bilateral sensorineural hearing loss was related to his in-service acoustic trauma.  This examiner opined further that the Veteran's bilateral sensorineural hearing loss was as likely as not related to his occupational noise exposure and/or the aging process.  This examiner also opined that it was as likely as not that tinnitus is a symptom of bilateral hearing loss, and that it was less likely as not that tinnitus was related to military noise exposure as the Veteran's hearing acuity had been normal with no evidence of hearing loss in service.  

An August 2011 private audiologist examination report concluded that the Veteran's tinnitus and hearing loss was "service related."  The diagnoses included tinnitus, possibly constant, and not affecting sleep, mild through profound sensorineural hearing loss in the right ear, and mild sensorineural hearing loss in the left ear.  This private audiologist also stated that the Veteran's tinnitus and hearing loss were "service related" due to "severe noise exposure."  Unfortunately, this audiologist did not interpret the Veteran's audiometric test results.

On VA examination in October 2011, the Veteran's complaints included bilateral hearing loss and tinnitus.  The VA examiner reviewed the Veteran's claims file, including his STRs and post-service VA treatment records.  Audiometric testing demonstrated pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
35
50
70
85
LEFT
25
40
50
60
75

Speech discrimination scores were 92 percent in the right ear and 84 percent in the left ear.  The VA examiner opined that the Veteran's bilateral hearing loss was less likely than not related to active service.  His rationale was that the Veteran's records of pure tone audiometry at his induction (or enlistment) and separation physical examinations "revealed normal hearing sensitivity bilaterally with no significant threshold shift."  This examiner also opined that the Veteran's bilateral hearing loss did not exist prior to service because his hearing was within normal limits at his induction (or enlistment) physical examination.  This examiner stated that the Veteran's bilateral hearing loss and tinnitus did not impact the ordinary conditions of daily life, including the ability to work.  This examiner opined further that the Veteran's tinnitus was at least as likely as not associated with his bilateral hearing loss.  He also opined further that it was less likely than not that the Veteran's tinnitus was caused by or a result of in-service noise exposure because the Veteran's hearing sensitivity was normal at his separation from active service "with no significant threshold shift."  The diagnoses were bilateral sensorineural hearing loss and tinnitus.

Additional evidence includes the Veteran's testimony before the RO and the Board wherein the Veteran described military noise exposure which included running tank engines, and the firing of tank weapons with decibels ranging from 153 to 183.  He asserted that a noise level of 80 decibels was considered hazardous.  After a days' work, the Veteran recalled experiencing a burning or ringing sensation of the ears which his superior officer commented was common and to "let it go."  The Veteran described this sensation as "sort of go[ing] away" and becoming "lesser and lesser" with each successive noise exposure.  He described the noise from tank weapons firing as similar to hunting with a double-barreled shotgun which went "boom" followed by a loud noise from breech block repercussion.  He otherwise described the tank firing noise as being similar to standing next to a vehicle which backfired very loudly.  He described the inside compartment as containing 2 feet of space.  He performed firing exercises for 4 to 5 hours at a time about every other week with approximately 16 tanks involved.  He also recalled difficulty hearing people in service which he assumed would eventually clear up.  He denied any significant noise exposure after service.  He also recalled being within close proximity to an explosion which left retained shrapnel in his leg.

The Veteran's written statements include his report that a VA audiologist who performed a hearing test indicated that his hearing loss could be from his military noise exposure.  See VA Form 21-4138 received in September 2008.  He asserts that the military never checked for hearing loss, and that he was having hearing loss "as time went on after my service time."  See VA Form 21-4138 received February 2011.

The Veteran argues that the VA examiner opinions fail to take into consideration the significance of the hazards of his military noise exposure, which included driving M-60 tanks armed with 105mm guns, 50 caliber guns and 7.62mm machine guns.  See VA Form 9 received in August 2009.  He further argues that VA examiners improperly attributed his hearing loss to civilian noise exposure which he asserts was not significant.  On the other hand, the Veteran asserts that a favorable private examiner opinion had considered his full description of military and civilian noise exposure.

The Veteran also alleges that the weapons firing noises ranged from 153 decibels to 183 decibels, and argues that unprotected hearing exposure to these types of noise levels for any amount of time would result in hearing loss.  See VA Form 9 received in August 2009.  He asserts that tinnitus is caused by noise exposures falling in the ranges from 93 decibels to 155 decibels.  See VA Form 21-4138 received in September 2009.

The Veteran has also described experiencing tinnitus during service, and having continued to suffer from tinnitus to the current day.  See VA Form 9 received November 2011.

In support of his theories, the Veteran submitted a chart from Quiet Solution which indicates that hearing damage occurs at 125 decibels of noise with permanent hearing damage occurring at 132 decibels.  Another article describes impulse noise levels for military weapons in decibels as 157 for an M16A2 5.56mm rifle, 155 for an M60 7.62 machine gun, 153 for an M2 .50 caliber machine gun, 164.3 for an M26 grenade at 50 feet, and 183 for an M119 105mm howitzer.  The Veteran has also submitted articles describing the M60 and M48 tank characteristics.

The Veteran has also submitted statements from his daughter who asserts that, as far back as she can remember, the Veteran had always complained of hearing loss and a buzzing sound in his ears.  She recalls the Veteran's spouse as encouraging him to seek treatment, but that he replied by stating "it's from the army, I'll just have to live with it."  She recalls her mother telling the Veteran many times to have his ears evaluated because he didn't hear a word she said.  She further recalls noticing the Veteran's difficulty with hearing conversations after her mother had passed.  

Based upon all of this evidence, the Board referred this claim to a VHA expert audiologist.  The opinion obtained in November 2012 first reviews the Veteran's whispered voice tests conducted in service.  It was explained that a whisper voice test, while an accepted test of hearing acuity at that time, is known to be insensitive to many types and degrees of hearing loss.  As such, it was an unreliable measure for hearing loss.

The examiner then reviewed the audiograms conducted in service in "March 1961" and upon separation in June 1961.  Notably, the VHA examiner incorrectly referred to the audiometric testing conducted on September 15, 1959 (and contained only in the STRs) as being conducted in March 1961.  The examiner indicated that a comparison of these two audiometric tests revealed no significant hearing change at any frequency noting that a change of 10 decibels was generally considered a normal test/retest difference.  The examiner stated that thresholds in the range associated with noise exposure were 0 decibels at discharge.  It was further noted that the audiometric testing did not reveal the type of "notching" at high frequencies that was pathognomonic for hearing changes due to noise exposure.

The examiner next indicated that the Veteran's hearing status was not evaluated until August 2008, which was 47 years after his service discharge.  This testing showed borderline-normal low frequency hearing sloping to a severe-to-profound sensorineural hearing loss in the high frequencies in both ears.  There were competing VA and private medical opinions as to whether the Veteran's bilateral sensorineural hearing loss was due to military noise exposure.  It was observed that the private examiner had only considered the Veteran's anecdotal reports of hearing loss in service without access to the audiometric testing showing normal hearing at service discharge.

The examiner identified the Veteran as having military noise exposure of a sufficient intensity to cause a change of hearing in a susceptible individual.  It was indicated, however, that response to noise exposure was highly individualized with some people experiencing hearing loss at exposure below the 85 decibels for an 8-hour period that was generally regarded as "safe" while others were able to endure exposures well above this level with no ill-effects.

The VHA examiner then discussed a 2006 study conducted by the Institute of Medicine's (IOM) Committee on Noise-Induced Hearing Loss and Tinnitus Associated with Military Service from World War II to the present.  This study concluded that there was no scientific basis on which to conclude that a hearing loss that appeared many years after noise exposure could be causally related to that noise exposure in the absence of hearing changes after the period of exposure.  It was indicated that hearing changes due to noise are most pronounced at the time noise exposure occurred and that, after this initial shift, hearing may improve or remain at the level caused by the exposure.  Thus, any hearing changes that occurred due to military noise exposure would most likely have been present on the inservice audiograms, and there was no evidence of hearing loss or a high frequency threshold shift in service.

The VHA examiner next stated that the factors which caused hearing loss were likely to have caused tinnitus.  The examiner agreed with the VA examiner opinions that hearing loss was not related to military noise exposure, and that it was thus less likely that military noise exposure caused tinnitus.  The more likely factors could be occupational noise, recreational noise, age or some combination of these factors which could not be known at this time.

The VHA examiner next considered the statement from the Veteran's daughter regarding her recollections of the Veteran's hearing problems as far back as she could remember.  Given the age of the Veteran (72) and his daughter (39), the VHA examiner felt that it could be reasonably assumed at least a decade had passed since service discharge before the Veteran's daughter could observe any hearing problems.  Similarly, the Veteran had filed a service connection claim as early as 1972, and filed another claim in 2005, but did not file a service connection claim for hearing loss or tinnitus until 2008.  The examiner felt that it was reasonable to assume that the Veteran was cognizant of the process for claiming conditions that stemmed from active military service.

Based upon the above, the examiner concluded as follows:

After considering all of the evidence outlined above, the point as to whether or not the Veteran's job as a cutter in a garment factory for over 37 years caused his hearing loss or if it was attributable to some other factor is moot.  The salient point here is that there is no objective or contemporaneous anecdotal evidence of hearing loss, hearing changes, or tinnitus until some 47 years after active duty, and the IOM has concluded that a hearing loss that manifests many years after a particular noise exposure is less likely due to that particular noise, and that tinnitus that occurs in the presence of a hearing loss is likely due to the same etiology as that causing the hearing loss.

III.  Analysis

In this case, the record includes competing medical opinions as to whether the Veteran's current bilateral sensorineural hearing loss and tinnitus disabilities result from his inservice noise exposure.  In order to evaluate the relative probative value of these opinions, the Board must first evaluate the factual basis underlying these opinions.  

First, the Board has already concluded that the Veteran's military service involved significant noise exposure.  The Board also concludes that the Veteran's pre-service and post-service history of noise exposure was not significant given the evidence currently of record.

Second, the Board must next determine when hearing loss and/or tinnitus was first manifested.  The Veteran has provided inconsistent accounts as to the onset of hearing loss and tinnitus.  For example, during a VA C&P audiology examination in December 2008, the Veteran dated the onset of bilateral hearing loss to his military days.  He has reported experiencing tinnitus symptoms after firing exercises, and claimed continuity of symptomatology since service.

However, the Veteran's first documented statement on these matters occurred during a physical evaluation in the VA clinic setting in September 2004.  At that time, the Veteran specifically denied hearing loss or tinnitus.  His next statement occurred during an August 2008 VA audiology consultation, where in the Veteran reported difficulty hearing and understanding his family and friends "for the past (2) years."  

Thus, the Veteran has made directly contradictory statements regarding the onset and chronicity of hearing loss and tinnitus.

In this context, additional probative evidence concerning the onset of hearing loss includes the Veteran's audiometric findings in service which, in general, showed normal hearing in all measured frequencies.  See generally Hensley v. Brown, 5 Vet. App. 155 (1993), citing CURRENT MEDICAL DIAGNOSIS & TREATMENT 110-11 (citing Stephen A. Schroeder et al. eds., 1988 for the proposition that the threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss).  Thus, the objective audiometric findings in service tend to weigh against the Veteran's recollections and perceptions of demonstrating hearing loss in service.

Additionally, a VA C&P examiner in August 1972 made a general observation that hearing loss was not noted upon examination and interview of the Veteran.  A September 2004 VA clinician described the Veteran's auditory acuity as grossly intact.  These observations, while clearly not as accurate as audiometric testing, do provide some probative value as these examiners have specialized training and experiencing to detect hearing abnormalities.  Thus, the examiner impressions in 1972 and 2004 tend to weigh against the Veteran's recollections and perceptions of demonstrating hearing loss since service.

Finally, statements from the Veteran's daughter include her observations of the Veteran's experiencing hearing loss as far back as she could remember, and further recalls her mother counseling the Veteran to seek treatment for hearing loss and/or tinnitus.  However, the Veteran's daughter was born in March 1972.  See VA Form 21-526 received in July 1972.  Clearly, the Veteran's daughter did not possess the capacity for personal observation of the Veteran's outward manifestations of hearing loss or tinnitus contemporaneous in time to service discharge.  Additionally, the probative value of her lay observations are outweighed by the clinical evaluation of no detectable hearing loss by the VA examiner in 1972, as this examiner possesses greater expertise in detecting hearing loss abnormalities and made those observations contemporaneous in time to service discharge.

Based upon all of the foregoing, the Board finds that the Veterans' hearing loss and tinnitus disabilities first manifested many years after service discharge.  The most probative evidence concerning the presence of hearing loss in service consists of the inservice audiogram findings which objectively measured normal hearing acuity.  This finding in buttressed by examiner impression in 1972 that hearing loss was not evidence on clinical examination.

The most probative evidence regarding the Veteran's perceptions of the onset of hearing loss and tinnitus symptoms consists of his statement to a VA clinician in 2004, wherein the Veteran specifically denied hearing loss or tinnitus.  The Board assigns greater probative value and reliability to this statement as it was the first statement made by the Veteran on these matters and is consistent with his next statement made in August 2008, wherein he described a two year history of hearing loss.  

Additionally, the Veteran's 2004 statement bears the indicia of reliability as it was made in the context of obtaining appropriate medical treatment.  See Lilly's An Introduction to the Law of Evidence, 2nd Ed. (1987), pp. 245- 46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). 

On the other hand, the Veteran's statements of inservice onset of hearing loss and tinnitus are less reliable as his hearing loss allegation directly contradicts a prior statement in 2004 made to a VA examiner.  Additionally, the Veteran's recollections perceptions of decreased hearing acuity since service are not consistent with the inservice audiogram findings and are not consistent with medical examiner observation in 1972.  For the reasons expressed above, the Board must find the Veteran's allegations of chronic hearing loss and tinnitus in service, which are made more than 4 decades after service discharge, are not credible and inconsistent with the entire evidentiary record. 

Having determined the underlying factual basis, the Board next finds that the most persuasive medical opinion in this case consists of the expert VHA audiologist opinion received in November 2012.  This examiner concluded that it less likely than not that the Veteran's hearing loss and tinnitus disabilities stemmed from his inservice noise exposure.  This examiner conceded that the Veteran's inservice noise exposure was of sufficient intensity to cause hearing loss "in a susceptible individual."  However, the examiner indicated that an individual's response to noise exposure was not universally the same.

The VHA examiner next concluded, after referencing examination findings as well as the lay statements of record, that the Veteran's hearing loss and tinnitus disabilities were not shown until many years after service.  The Board has made the same factual finding for the reasons specified above.

Taking a look at the specific facts of this case, the VHA examiner observed that the Veteran's separation audiogram showed 0 decibel thresholds in the ranges associated with noise exposure.  The examiner otherwise referenced the Veteran as not demonstrating the type of high frequency notching associated with hearing loss due to noise exposure.  By reference to a study conducted by the IOM, the VHA examiner concluded that hearing loss associated with inservice noise exposure would be expected to have been shown on the audiometric testing in service, and that there was no scientific basis to conclude that a hearing loss which appeared many years after the noise exposure could be attributable to that event.  The examiner also concluded that tinnitus was likely due to the same etiology as the hearing loss.  Further, the VHA examiner found that the private examiner opinion was flawed as this examiner was unaware that audiometric testing conducted in service demonstrated normal hearing at the time of discharge.

Overall, the Board finds that the VHA opinion is based on an accurate factual basis as found by the Board, and provides a thoroughly explained rationale to support the conclusions reached.  The Board observes that the VHA opinion is flawed to the extent that the examiner referred to the September 1959 entrance examination as being conducted in "March 1961."  As reported above, the September 1959 audiometric testing was located in the STRs rather than on the induction examination report.  This is not a significant factual error as the examiner clearly found that the separation audiogram showed no evidence of high frequency hearing loss and that any of the threshold shifts between the two audiograms were within normal test/retest differences.

On the other hand, the Board finds that the private audiologist opinion in August 2011 holds significantly less probative value than the VHA opinion.  This examiner asserted that the Veteran's hearing loss and tinnitus were "service related" but no rationale is provided for this assertion.  See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (a medical opinion must provide sufficient detail and rationale to allow the Board to make a fully informed evaluation of the disability).  This examiner also does not explain the significance of the normal audiometric findings upon separation which, according to the VHA examiner, is a significant finding according to the IOM report.  For these reasons, the Board finds that the VHA examiner's opinion holds substantially greater probative weight than the private examiner opinion.

The Board also finds that the VHA examiner's opinion holds substantially greater probative value than the opinions of the Veteran and his daughter.  As held above, the Board finds the Veteran's allegation of inservice onset of hearing loss and tinnitus is not credible based upon the entirety of the record, including his own inconsistent statements.  The Board has also found limited probative value to assign to the daughter's assertions given her lack of personal knowledge contemporaneous in time to service.  Their opinion that the Veteran's current hearing loss and tinnitus disabilities are related to inservice noise exposure is greatly outweighed by the opinion of the VHA examiner, who clearly possesses greater training and expertise than the Veteran and his daughter to speak to issues of medical causation.

Moreover, the Board finds that the VHA examiner's opinion holds substantially greater probative value than the medical treatise information provided by the Veteran.  This information generally reflects that the Veteran's military noise exposure occurred at a level which may cause permanent hearing loss.  One document explains that permanent hearing damage occurs at levels exceeding 132 decibels.  The VHA examiner noted that permanent hearing damage was known to have been caused at even lower noise exposures, but explained that these principles varied according to an individual's susceptibility.  Overall, the VHA examiner opinion applies the principles enunciated in the medical articles to the specific facts of this case, and greatly outweighs any general information contained in those articles.

Finally, the Veteran has asserted that a VA clinician informed him that his hearing loss could be due to his military noise exposure.  The controversy of medical opinion in this case supports the generalized recollection of this conversation that a potential causal relationship could exist.  However, the more specific analysis conducted by the VHA examiner based upon the particulars of this case greatly outweighs the general observation by the VA clinician.

In sum, the Board finds that the preponderance of the evidence establishes that the Veteran's bilateral hearing loss and tinnitus disabilities first manifested many years after service, and are not causally related to active service.  There is no doubt of material fact to be resolved in the Veteran's favor.  38 U.S.C.A. § 5107(b).  Thus, the claims must be denied.

IV.  The Duty to Notify and the Duty to Assist

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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide.  The notification requirements are referred to as Type One, Type Two, and Type Three, respectively.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). 

Also, the VCAA notice requirements apply to all five elements of a service connection claim.  The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

The Veteran filed his hearing loss claim in August 2008.  A pre-adjudicatory RO letter dated September 3, 2008 advised the Veteran of the types of evidence and/or information deemed necessary to substantiate his claim as well as the relative duties on the part of himself and VA in developing his claim.  This letter also advised the Veteran of the criteria for establishing an initial rating and effective date of award should service connection be established.

In January 2011, the RO sent a corrective post-adjudicatory notice which additionally advised the Veteran of the presumptive service connection criteria applicable to a hearing loss claim.  This timing deficiency was cured with readjudication of the claim in the May 2011 and October 2011 Supplemental Statements of the Case (SSOCs).  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The Veteran filed his tinnitus claim in August 2009.  Pre-adjudicatory RO letters dated September 22, 2009 and October 8, 2009 fully satisfied the timing and content VCAA requirements by advising the Veteran of the types of evidence and/or information deemed necessary to substantiate his claim as well as the relative duties on the part of himself and VA in developing his claim.  This letter also advised the Veteran of the criteria for establishing an initial rating and effective date of award should service connection be established.

VA has a duty to assist a claimant in the development of the claims.  This duty includes assisting the claimant in the procurement of STRs and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  In this case, the RO has obtained the Veteran's STRs.  These records appear complete, and there is no allegation of any specific STR which is outstanding.

The RO has also obtained the Veteran's identified VA clinical records.  There are no outstanding requests to obtain any private medical records which the Veteran has both identified and authorized VA to obtain on his behalf.  The Board is unaware of any additional records in the possession of a federal agency, such as VA clinical records or documents pertaining to disability claims with the Social Security Administration, which are relevant to the claims at hand. 

VA has also obtained medical opinions in this case as necessary to decide the claims.  The Board has found deficiencies the private and VA opinions of record.  In particular, the favorable private medical opinion provided no reasoning for the opinion expressed.  See Stefl, 21 Vet. App. 120 (2007) (a medical opinion must provide sufficient detail and rationale to allow the Board to make a fully informed evaluation of the disability).  Additionally, this opinion did not reflect review of the inservice audiograms which the unfavorable VA opinions then of record found significant.  See Nieves-Rodriguez, 22 Vet. App. 295 (2008) (noting that the evaluation of the probative value of an examiner opinion includes whether the opinion is based upon sufficient facts or data).

As a result, the Board referred this case for expert medical opinion from a VHA audiologist which was based on an accurate factual predicate as determined by the Board.  This was a permissible developmental judgment based upon the entire evidentiary record.  Cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case unless VA can provide a reason for conducting such development).  Notably, in the July 2012 IHP, the Veteran's representative specifically requested the Board to seek an "outside opinion."

The VHA report received in November 2012 fully addresses all questions posed by the Board.  The Board acknowledges that the VHA audiologist incorrectly referred to a 1959 audiometric examination as being conducted in 1961.  However, this factual mistake has no bearing on the ultimate conclusion reached - namely that there was no audiometric findings on the separation examination consistent with high frequency hearing loss.  The only significant relevance of the induction examination was identified as showing any potential auditory threshold shifts during service.  If anything, the fact that the audiometric examination occurred at an earlier time than presumed by the VHA examiner only buttresses the examiner's conclusion reached, as the 1959 induction audiometric examination occurred before any noise exposure and showed no significant threshold shifts when compared to the separation audiometric findings.

In the July 2012 IHP, the Veteran's representative generally argued that an examiner's opinion which relies upon the lack of findings in the STRs would be deemed inadequate pursuant to the holding in Dalton v. Nicholson, 21 Vet. App. 23 (2007).  The VHA examiner considered a multitude of factors, to include objective audiometric findings in service, the findings to be expected in service according to accepted medical principles as identified by the IOM, and the actual onset of hearing loss and tinnitus as demonstrated by the record.  The Board finds no inadequacies of this examiner opinion on this basis.

In the November 2012 IHP, the Veteran's representative argued that the VHA examination report is inadequate for two reasons: 1) the VHA examiner referred to the IOM report which has not been associated with the claims folder and 2) the IOM report relied upon is general in nature and does not contain specifics to the case.

With respect to the first issue raised, the Court has held that articles or publications cited and relied upon in a medical expert's opinion, but which are not in the claim file, are not publications before the Board and the Board is not required to, on its own, provide copies to the appellant.  See Hilkert v. West, 12 Vet. App. 145, 150 (1999) (en banc).  The Veteran and his representative were provided a 60-day period of time to dispute the VHA examiner's findings and provide further supporting evidence.  The Board finds no credible evidence of record that the VHA examiner has inaccurately cited any aspects of the IOM report, or that the IOM report is deemed a faulty publication.  Quite simply, this argument fails.

With respect to the second argument, the VHA examiner's opinion makes it clear that the principles cited in the IOM report were applied to the particular facts of this case.  This examiner discussed the variable susceptibility to individuals in general to varying degrees of noise exposure with no particular individual having the same hearing loss response.  The examiner then discussed the specific facts of this case, and how the Veteran's separation audiogram did not evidence the type of high frequency notching which would be expected to be shown for noise induced hearing loss.  Thus, the Board finds no concerns with the VHA examiner's opinion to warrant obtaining another opinion.

Finally, in Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  At the hearing in January 2012, the Veteran provided testimony regarding the circumstances of his military noise exposure, the symptoms he experienced during service and thereafter, when he first sought treatment, and whether an examiner had concluded that his hearing loss and tinnitus were due to inservice noise exposure.  The Veteran also identified deficiencies in the unfavorable VA medical opinions.  This VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims.  The Veteran had already submitted a favorable medical opinion in support of his claim which demonstrated his awareness of the issue at controversy.  

Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has identified any prejudice in the conduct of the hearing.  With consideration of a request by the Veteran's representative in July 2012, the Board obtained a VHA opinion.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record.  To the extent that any deficiencies can be perceived, such deficiencies were cured with obtaining a VHA opinion in this case.

Overall, the Board finds that the evidence of record is sufficient to decide the claims on appeal, and that there is no reasonable possibility that any further assistance would aid the Veteran in substantiating these claims. Hence, no further notice or assistance is required to fulfill VA's duty to assist him in the development of the claims.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002).
ORDER

Service connection for bilateral hearing loss is denied.

Service connection for tinnitus is denied.


REMAND

The Board observes that, in the November 2012 IHP, the Veteran's representative listed an additional issue of entitlement to service connection for residuals of SFW of the left knee.

Notably, an October 2011 RO rating decision awarded service connection for residuals of SFW of the right knee with degenerative joint disease.  This claim was based upon a radiographic finding that the Veteran had a retained metallic object in the area of his right knee which he claimed resulted from a barrel explosion in service.  That issue is no longer on appeal.  Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997).  

However, the Veteran also perfected an appeal to the RO on an issue of service connection for residuals of SFW of the left knee.  At a hearing in August 2011, the Veteran testified to incurring an SFW to the right knee.  His testimony regarding his left knee was ambiguous other than he intended to appeal an issue of SFW of both knees.  See Transcript of August 2011 RO hearing, p. 5.  The Veteran never identified any specific injury or disability of the left knee associated with service.  Unfortunately, the RO did not elicit any further information.

Under applicable law, VA will provide a medical examination or obtain a medical opinion where there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service, or within a qualifying presumptive period; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim.  38 U.S.C.A. § 5103A (d)(2); 38 C.F.R. § 3.159(c)(4)(i).  The third prong of this criteria, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold.  See McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006).

At this time, the Board cannot discern from the Veteran whether he claims a disability of the left knee related to an event in service and, if so, the nature of that disability.  His testimony in August 2011 did not allege that an SFW actually penetrated his left knee.  Thus, the Board is unable to determine whether an examination is warranted under 38 U.S.C.A. § 5103A (d)(2) and 38 C.F.R. § 3.159(c)(4)(i).

In fact, it appears to the Board that the Veteran may not intend to pursue a claim for SFW of the left knee in light of the RO's award of service connection for SFW to the right leg and his overall testimony in August 2011.  Neither the Veteran nor his representative identified this as an issue on appeal during the January 2012 video-conference hearing regarding the hearing loss and tinnitus claims.  However, to date, the Veteran has not specifically withdrawn this issue in writing, see 38 C.F.R. § 20.204, and the Veteran's representative listed this as a continuing issue in the November 2012 IHP.

The Board further notes that the RO has construed the Veteran's VA Form 9 submission in November 17, 2011 as a written withdrawal of the service connection claim for SFW residuals of the left knee, presumably by the Veteran's positive response to Box 9B wherein he listed hearing loss and tinnitus as only claims being appealed.  However, the Court has cautioned VA on the ambiguities created by the language contained in Box 9 of VA Form 9, see Evans v. Shinseki, 25 Vet. App. 7 (2011), and this document does not contain any writing from the Veteran specifically withdrawing from appeal the left knee SFW claim.  See Kalman v. Principi, 18 Vet. App. 522, 524 (2004).  The Veteran perfected his appeal on the left knee SFW claim by a VA Form 9 filing in June 2010.

At this time, prior to utilizing any more scarce VA resources, the Board finds that clarification from the Veteran is required as to whether he intends to pursue a service connection claim for SFW residuals of the left knee and, if so, the Veteran should be requested to describe the nature of the injury and proof of current residuals.

Accordingly, the case is REMANDED to the RO for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  Contact the Veteran and seek clarification as to whether he intends to pursue a service connection claim for SFW residuals of the left knee and, if so, request him to describe the nature of the injury and proof of current residuals.  The Veteran should be advised that a withdrawal of the claim must be in writing.

2.  After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the Veteran's claim should be readjudicated based on the entirety of the evidence.  If the claim is not granted in full, the Veteran and his representative should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  This claim must be afforded expeditious treatment. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).


____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs