Citation Nr: 1306753	
Decision Date: 02/27/13    Archive Date: 03/01/13

DOCKET NO.  07-32 320	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss. 

2.  Entitlement to service connection for tinnitus. 


REPRESENTATION

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


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

E. D. Anderson, Counsel


INTRODUCTION

The Veteran served on active duty from May 1952 to February 1954. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. 

In April 2010, a Travel Board hearing was held before the undersigned Veterans Law Judge (VLJ), and a transcript of this hearing is of record.  

The Board previously remanded this case for further development in September 2010, March 2011, and July 2012. 

In October 2012, this matter was referred to the Veteran's Health Administration (VHA) for a medical opinion.  

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).


FINDINGS OF FACT

1.  The Veteran's bilateral hearing loss did not have onset in service or within one year of service and was not caused by or otherwise related to the Veteran's active military service.

2.  The Veteran's tinnitus did not have onset in service and was not caused by or otherwise related to the Veteran's active military service.  



CONCLUSIONS OF LAW

1.  The criteria for entitlement to service connection for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1110, 1112 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).  

2.  The criteria for entitlement to service connection for tinnitus have not been met.  38 U.S.C.A. § 1110 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has reviewed all of the evidence in the claims folder.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record.  Indeed, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims.  

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence.  

Service Connection

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012).  In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).  "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)).

Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2012). 

Certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service.  See 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.307, 3.309 (2012). 

Preliminarily, the Veteran's contention has consistently been that he had continuous loud noise exposure while in Korea from 1952 to 1953 from having been assigned to a field artillery unit, in close proximity to firing heavy weaponry.  The Veteran's Form DD-214 confirms that he served in the 1st Field Artillery Battalion, with service in Korea.

In his statements, including his sworn statements at his April 2010 hearing, the Veteran testified that he observed diminished hearing in the 1950s after separation from service.  He has indicated that his primary noise exposure occurred during service and has denied any significant post-service noise exposure.  

Most of the Veteran's service treatment records (STRs) are presumed destroyed due to a 1973 fire at the National Personnel Records Center (NPRC).  The only available record is his February 1954 military separation examination which indicated results of 15/15 on a whispered voice hearing test. 

Thereafter, the next documented record of any hearing-related difficulty is a November 1988 audiogram from a private employment physical, which indicated as follows:




HERTZ




500
1000
2000
3000
4000
6000
RIGHT
0
10
5
10
75
75
LEFT
0
15
5
15
45
80

More recent private audiological records beginning in the early-2000s confirm a diagnosis of bilateral hearing loss. 

In support of his claims, the Veteran has submitted private treatment records from Dr. T.N..  While an April 2003 note records the Veteran's report that his hearing in his right ear has been poor since childhood, a February 2006 note states that "[the Veteran] has had several artillery rounds explode particularly in his right ear which I believe is the one most responsible for the nerve damage hearing loss that he is experiencing."  

In connection with this claim, the Veteran underwent an April 2006 VA examination by an audiologist, pursuant to which the audiogram indicated:




HERTZ



500
1000
2000
3000
4000
RIGHT
50
60
75
100
105
LEFT
10
20
10
35
65

This VA examiner concluded that it was less likely as not that the Veteran's bilateral hearing loss or tinnitus were caused by in-service noise exposure, but offered no opinion rationale whatsoever.  This left the Board without means to evaluate the conclusion expressed therein.  See generally, Miller v. West, 11 Vet. App. 345, 348 (1998) (holding that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record).  A May 2009 physician's statement indicated "I concur with the opinion of the audiologist" but did not explain further why this was the case.

The Board remanded this case in September 2010 for a more comprehensive VA examination.

On the subsequent VA examination of November 2010 by a different audiologist, it was indicated that an opinion "cannot be provided as it would be mere speculation."  The examiner noted in this regard the absence of entrance and exit examinations, which provided little basis as to the Veteran's hearing sensitivity when he entered or left the service.  Moreover, the Veteran had a significant otologic history that he admitted was suggestive of Meniere's disease (a disease which according to the examiner, was not related to noise exposure and which could cause hearing loss and tinnitus).

The Board's remand of March 2011 did not find this opinion sufficient, particularly as the Veteran's 1988 and 1992 employment physicals (with documented audiograms indicating partial high frequency hearing loss) were not yet formally part of the claims file at the time of the November 2010 VA examination.  Another medical examination and opinion were requested.

A March 2011 addendum from the November 2010 VA audiological examiner indicates that an opinion still could not be provided without resort to speculation, and recommending a possible consultation with an otolaryngologist (ENT).

Thereafter, in March 2012 the Veteran underwent examination directly from a VA ENT physician, who initially ruled out a diagnosis of Meniere's disease.  The examiner then offered the following opinion:

	It is less than likely as not that the patient's hearing loss and tinnitus
	are related to his service noise exposure for the following reasons - 
a) the separation test in 1954 noted hearing to be normal and equal; 
b) the earliest audiogram available in 1988 showed a high frequency
	loss at only two frequencies; and c) noise induced hearing loss does not
	progress or manifest years after the audiological insult.  In my opinion
	there is no service connection between the patient's hearing loss and his 
	noise exposure in the service for the reasons outlined above. 

While the opinion set forth is clearly more detailed in scope than prior opinions, the Board still could not effectively resolve this claim on the merits.  First, it appears that the VA audiologist relied in part on the Veteran's separation examination report, which the audiologist stated indicated normal hearing at that time.  In this regard, the Board notes that the only hearing test done at separation was a whispered voice test.  However, as noted in VA Training Letter 10-02, which was issued in March 2010 regarding the adjudication of claims for hearing loss, "whispered voice tests are notoriously subjective, inaccurate, and insensitive to the types of hearing loss most commonly associated with noise exposure."  VBA Training Letter 211D (10-02) (March 18, 2010).  In that letter, the Director of the VA C&P Service stated that "whispered voice tests . . . cannot be considered as reliable evidence that hearing loss did or did not occur."  Id.  Further, one of the main premises of the March 2012 examiner's opinion is that "noise induced hearing loss does not progress or manifest years after the audiological insult".  However, the Board notes that the onset of hearing loss after service does not preclude a finding of service connection if it can be shown by all of the evidence, including that pertinent to service, that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2011); see Peters v. Brown, 6 Vet. App. 540, 543 (1994); Hensley  v. Brown, 5 Vet. App. 155, 159-160 (1993).  Given the fact that the whispered voice test is not considered to be reliable evidence that hearing loss did not occur, and the fact the VA audiologist failed to attribute the Veteran's hearing loss to any other occurrence or discuss why delayed onset hearing loss might weigh against a finding that such hearing loss was related to service, the VA audiologist's opinion is incomplete and not supported by an adequate rationale.  See also, Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (an absence of documented hearing loss during military service still does not preclude the claimant from establishing service connection when there is a post-service diagnosis of hearing loss, and medical evidence establishing a causal link to service).  Therefore, the Board requested a supplemental medical opinion that takes into account the possibility that the Veteran's hearing loss acuity manifested post-service, and which further determines on review of all medical documentation, as well as the Veteran's competent lay assertions of continuity of symptomatology, whether said condition had its origin due to noise exposure from service. 

In an August 2012 addendum, the examiner explained that the whispered voice test administered at separation from service does not provide frequency specific information and is not sensitive to high frequency hearing loss.  She further noted that the Veteran had provided inconsistent information regarding his audiologic and otologic history and that he had a lengthy post-service history of excessive noise exposure.  For these reasons, she determined that she could not provide an opinion on the etiology of the Veteran's bilateral hearing loss or tinnitus without resorting to speculation and deferred to the conclusions of the March 2012 VA examiner.  

In light of the many conflicting and inadequate opinions, the Board referred the matter for a VHA opinion.

In November 2012, a VA specialist in otolaryngology, concluded that it is less likely than not that the Veteran's bilateral hearing loss and tinnitus are related to noise exposure in service.  She stated that the pattern of hearing loss in the 1988 audiogram was not consistent with hearing loss from noise exposure and noted that at the time this test was administered, the Veteran denied any subjective complaints of hearing loss or tinnitus.  She also noted that hearing loss due to acoustic trauma is an injury and that the damage occurs contemporaneous to the noise exposure, not at some future time.  

Based on all the above evidence, the Board finds that entitlement to service connection for bilateral hearing loss and tinnitus must be denied.  

While it is conceded that the Veteran had at least some loud noise exposure in service, the preponderance of the evidence does not support a finding that this noise exposure caused the Veteran's current hearing loss and tinnitus.  

While the Veteran has testified that he first noticed his hearing loss right after he got out of service in the 1950s, the Board notes that the Veteran denied any hearing loss, tinnitus, or other ear problems at his 1988 employment audiogram more than thirty years after separation from service, which directly contradicts his current assertions.  Such inconsistencies regarding the onset of his disability undermine the Veteran's credibility.  See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995)(Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony).  There is evidence of record that the Veteran is a poor historian when it comes to reporting his medical history.  See, e.g., VA Form 9 (August 2007) (in which the Veteran denies ever undergoing an MRI, although such a test is noted in his medical records).  Given that the Veteran's period of service was almost sixty years ago, it is certainly understandable that he might have difficulty remembering the details of events that occurred so many years ago.  However, in light of the Veteran's inconsistent and unreliable testimony, the Board finds that the contemporaneous evidence has greater probative value than history as reported by the Veteran.  See Curry v. Brown, 7 Vet. App. 59, 68 (1994).  

Also, weighing against the Veteran's claim is the lengthy period of time between the Veteran's in-service noise exposure and his current hearing loss and tinnitus claims.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed.  Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability).   

While, as the Board has noted above, the onset of hearing loss after service does not preclude a finding of service connection if it can be shown by all of the evidence, including that pertinent to service, that the disease was incurred in service, there is little to link the Veteran's current disabilities to his military service beyond his own unsubstantiated lay opinion.

Essentially, the Veteran has offered his own opinion as to the etiology of his hearing loss and tinnitus.  The Veteran has not demonstrated that he has any knowledge or training in determining the etiology of such conditions.  In other words, he is a layman, not a medical expert.  The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology).  Evidence, however, must be competent evidence in order to be weighed by the Board.  Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case.

In Davidson, the Federal Circuit drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding.  Id.  In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes 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.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Although the Veteran seeks to offer etiology opinions rather than provide diagnoses, the reasoning expressed in Jandreau is applicable.  While the Veteran is competent to testify regarding his subjective, observable complaints of diminished hearing and ringing in his ears, the Board finds that the question of whether the Veteran currently has hearing loss and tinnitus due to noise exposure in service, rather than some other cause, is too complex to be addressed by a layperson.  This connection or etiology is not amenable to observation alone.  Rather it is common knowledge that such relationships are the subject of extensive research by scientific and medical professionals.  Hence, the Veteran's opinion of the etiology of his current disabilities is not competent evidence and is entitled to low probative weight.

The Board notes that Dr. T.N. opinion in one of his treatment notes that the Veteran's acoustic trauma in service was the cause of his right ear hearing loss; however, he offers no rationale for conclusions and it appears that it is based solely on the Veteran's reported medical history and that Dr. T.N. did not review the historical evidence in the Veteran's claims folder.  

All of the VA examiners that have offered an opinion, as well as the VHA specialist, have reached the opposite conclusion: that the Veteran's current hearing loss and tinnitus are unrelated to his military service.

In cases such as this, 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 U.S. Court of Appeals for Veterans Claims (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).  Greater weight may be placed on one examiner's opinion over another depending on factors such as reasoning employed by the examiners and whether or not, and the extent to which they reviewed prior clinical records and other evidence.  Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994).  Additionally, the thoroughness and detail of a medical opinion are among the factors for assessing the probative value of the opinion.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).

Here, the Board finds most probative the VHA opinion.  She discusses the evidence of record in detail and provides a clear rationale for her conclusions which are consistent with the evidence of record.  In contrast, it is unclear exactly why Dr. T.N. reached his conclusions.  A medical opinion that contains only data and conclusions is accorded no weight.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  It appears that Dr. T.N.'s conclusion was based on the Veteran's reports of acoustic trauma in service; however, another one of his treatment notes documents a report that the Veteran has experienced problems in his right ear since childhood, which contradicts his current assertions that his current problems had onset in service.  Additionally, it does not appear that Dr. T.N. had an opportunity to review relevant evidence such as the Veteran's separation examination or the audiograms administered in 1988 and 1992.  Accordingly, the Board finds that his conclusions have less probative value than Dr. D.A.'s, as she was able to review the entire record.  

For all the above reasons, entitlement to service connection for hearing loss and tinnitus must be denied.  The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012).

The Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  

Here, the VCAA duty to notify was satisfied by a March 2006 letter provided to the Veteran prior to the initial adjudication of his claim.  This letter notified the Veteran of what evidence was required to substantiate his claims, as well as VA and the Veteran's respective duties for obtaining evidence.  The Veteran was also informed of how VA assigns disability ratings and effective dates.

VA also has a duty to assist the veteran in the development of the claim.  This duty includes assisting the veteran in the procurement of service medical records 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).  

The RO has obtained the Veteran's available service treatment records, as well as VA treatment records.  

The Board notes that most of the Veteran's service treatment records are missing and presumed destroyed in the 1973 fire at the National Personnel Records Center.  The Board finds that additional efforts to obtain these records would be futile.  See 38 U.S.C.A. § 5103A(b)(3).  The Board has considered the Court statement in Washington v. Nicholson, 19 Vet. App. 362, 371 (2005) that: 

[I]n cases where, as here, the appellant's SMR's have been lost or destroyed, the Board's obligation to provide well reasoned findings and conclusions to evaluate and discuss all of the evidence that may be favorable to the appellant, and to provide an adequate statement of the reasons or bases for its rejection of such evidence is heightened. 

The Board has undertaken its analysis with this heightened duty in mind.

The Veteran submitted private treatment records and was provided an opportunity to set forth his contentions during the April 2010 hearing before the undersigned Veterans Law Judge.  The Veteran was afforded a VA medical examination/opinion in April 2006, November 2010, March 2011, March 2012, July 2012, August 2012, and November 2012.  

The November 2012 VHA opinion is adequate and probative for VA purposes because the examiner relied on sufficient facts and data, provided a rationale for the opinion rendered, and there is no reason to believe that the examiner did not reliably apply reliable scientific principles to the facts and data.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  

Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).


ORDER

Entitlement to service connection for bilateral hearing loss is denied.

Entitlement to service connection for tinnitus is denied.  



____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs