Citation Nr: 1307069	
Decision Date: 03/01/13    Archive Date: 03/11/13

DOCKET NO.  12-13 562	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for hearing loss.

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

K. Neilson, Counsel



INTRODUCTION

The Veteran served on active duty from January 1986 to November 1991.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

The Board notes that after the appeal was certified to the Board, the Veteran submitted additional evidence in the form of a VA audiology consultation note showing that the Veteran was seen for an updated hearing evaluation.  The Veteran stated:  "please allow this evidence either for reconsideration by the . . . [RO] or on to the Board."  The Board observes that any pertinent evidence submitted by a veteran or his representative must be referred the agency of original jurisdiction (AOJ), unless such evidence is accompanied by a waiver of consideration by the AOJ or the Board determines that the benefit(s) to which the evidence relates may be fully allowed on appeal without such referral.  38 C.F.R. § 20.1304 (c) (2012); see Disabled American Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) (holding that appellants are denied "one review on appeal to the Secretary" when the Board considers additional evidence without having to remand the case to the AOJ for initial consideration, and without having to obtain the appellant's waiver).

It is unclear from the Veteran's statements whether he intended to waive AOJ consideration of the additional evidence.  In any event, to the extent that the Veteran's statement cannot be read as a waiver of AOJ consideration, the Board finds that waiver of this evidence is not required as it is not relevant to the issue decided herein.  Notably, the VA audiology consultation was to evaluate the Veteran's level of hearing and not whether his hearing loss is related to service, which is the relevant issue to be determined in this case.  Whether the Veteran has a hearing loss disability is not in dispute.



FINDING OF FACT

The Veteran does not have hearing loss or tinnitus that is attributable to his active military service.


CONCLUSIONS OF LAW

1.  The Veteran does not have hearing loss that is the result of disease or injury incurred in or aggravated by active military service; sensorineural hearing loss may not be presumed to have been incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2012).

2.  The Veteran does not have tinnitus that is the result of disease or injury incurred in or aggravated during active military service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2011).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

I.  Notice and Assistance

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim.  They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.

(The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008.  See 73 Fed. Reg. 23353-56 (Apr. 30, 2008).  The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008.  The amendments, among other things, removed the notice provision requiring VA to request the veteran to provide any evidence in the veteran's possession that pertains to the claim.  See 38 C.F.R. § 3.159(b)(1).)

The VCAA notice requirements apply to all five elements of a service connection claim.  These are: (1) veteran status; (2) existence of a disability; (3) a connection between a 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 RO received the Veteran's claims of service connection for hearing loss and tinnitus in December 2009.  In January 2010, the RO sent him a letter notifying him of the evidence required to substantiate that claim.  The letter advised the Veteran of the information already in VA's possession and the evidence that VA would obtain on his behalf, as well as of the evidence that he was responsible for providing to VA, to include any records not in the possession of a Federal agency.  The letter also included the notice elements required by Dingess for how VA determines disability ratings and effective dates.  

The Veteran has not disputed the contents of the VCAA notice in this case.  Further, the Board finds that the January 2010 notice letter complies with the requirements of 38 U.S.C.A. § 5103(a), and afforded the Veteran a meaningful opportunity to participate in the development of his claims.  Thus, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied.

Regarding the duty to assist, the Board also finds that VA has fulfilled its obligation to assist the Veteran.  All available evidence pertaining to the Veteran's claims has been obtained.  The evidence includes his service treatment records (STRs), VA examination report, private medical evidence, and statements in support of his claim.  (The Veteran elected to not have a hearing in his case.)  

Further, in April 2010, the Veteran was afforded a VA audiology examination.  The VA audiologist reviewed the Veteran's claims folder, conducted the appropriate hearing tests, recorded the Veteran's subjective complaints related to his disability as well as the Veteran's account of his in-service noise exposure, noted that in-service noise exposure had been conceded, and provided an opinion as to the likelihood that the Veteran's hearing loss and tinnitus were related to service.  The Board finds that the examination report, along with the other evidence of record, contains sufficient evidence by which to evaluate the Veteran's claim and that the examiner's opinion is supported both by the evidence of record and the reasons stated therein.  Thus, the Board has properly assisted the Veteran by affording him an adequate VA examination.

The Board has considered the Veteran's argument that the VA examination is inadequate because it was performed by a "technician, [and] not a doctor," but finds no reason to question the qualifications of the VA audiologist or to discount the probative value of an opinion rendered within his area of expertise.  Indeed, an audiologist has specialized expertise in the area of auditory disorders.

II.  Service Connection

The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012).  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).

Generally, establishing service connection requires medical or, in certain circumstances, lay 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 present disability.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999).  

In addition, certain chronic diseases, including organic disease of the nervous system such as sensorineural hearing loss, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012).  

Here, the Veteran is seeking service connection for hearing loss and tinnitus, which he believes are the result of acoustic trauma incurred in service.  The Veteran's service treatment records (STRs) contain the results of audiograms dated in November 1985 and October 1991, which were performed as part of the Veteran's entrance and separation examinations, as well as the results of periodic audiograms dated in November 1986 and March 1990.  

The results of audiometric testing conducted in November 1985 were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
40
20
20
20
20
LEFT
20
0
0
0
0

The results of audiometric testing done in November 1986 showed the following auditory thresholds:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
5
0
5
10
LEFT
20
0
10
10
20

The results of audiometric testing in March 1990 were:





HERTZ



500
1000
2000
3000
4000
RIGHT
10
0
0
0
5
LEFT
5
0
10
0
10

Lastly, the Veteran's separation audiogram showed the following auditory thresholds:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
0
0
0
0
LEFT
10
0
5
0
5

The Veteran's STRs contain an impression of otitis media and external otitis in December 1986 and on his October 1991 report of medical history, the Veteran indicated having had ear trouble and hearing loss.  The reviewing clinician noted a history of having a slight degree of hearing loss.

In April 2010, the Veteran was afforded a VA audiology examination in connection with his claims of service connection for hearing loss and tinnitus.  The audiologist noted that the Veteran's November 1985 audiogram suggested mild right ear hearing loss at 500 and 6000 Hertz, that he was treated in service for otitis media and external otitis of the right ear, and that in-service noise exposure had been conceded.  It was noted that the Veteran's service duties exposed him to noise from vehicles and loud electric generators.  The Veteran denied post-service occupational or recreational noise exposure.  Regarding his claimed tinnitus, the Veteran reported that he experienced tinnitus on a daily basis, lasting for several minutes, the onset of which had occurred more than 15 years prior.  

The results of audiometric testing conducted as part of that examination were as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
25
20
40
40
45
LEFT
30
35
40
55
55

The Veteran's speech recognition scores were 80 percent for the right ear and 76 percent for the left ear.  He was diagnosed as having sensorineural hearing loss bilaterally.  

Regarding the etiology of the Veteran's hearing loss, the VA audiologist opined that it was less likely as not the Veteran's hearing loss was caused by or a result of his in-service acoustic trauma.  In opining against an association between the Veteran's hearing loss and service, the VA audiologist relied on the results of the October 1991 audiogram, which showed hearing within normal limits.  The audiologist stated that the Institute of Medicine has determined that the effects of noise exposure on hearing are not delayed and thus, a normal audiogram at separation would indicate that the Veteran's hearing loss was a post-service occurrence.  The VA audiologist also commented that the mild hearing loss shown in 1985 was likely related to recurring otitis subsequently treated in service.  The audiologist pointed out that subsequent audiograms showed hearing within normal limits, which would indicate that any noted hearing loss was related to a transient ear issue.  As for the Veteran's tinnitus, the VA audiologist opined that tinnitus was likely secondary to the Veteran's hearing loss and therefore also less likely than not related to service.  

In March 2012, the Veteran submitted the results of a private audiology examination.  Notably, while the examiner diagnosed mild high frequency sensorineural hearing loss, it is not clear that the audiogram demonstrates hearing impairment as defined by VA.  38 C.F.R. § 3.385 (2012).  That fact notwithstanding, the private physician stated that he had evaluated the Veteran and, based upon an ear, nose, and throat examination and review of the audiometric test results, it was his opinion that the Veteran had sensorineural hearing loss due to noise induced trauma while in service.  

At the outset, the Board notes that a review of the audiograms of record raises a question as to whether the Veteran had right-ear hearing loss that pre-existed service.  However, as demonstrated by the subsequent audiograms showing normal hearing and the VA audiologist's opinion that any noted hearing loss was likely transient in nature and related to the Veteran's otitis, the Board finds that right ear hearing loss did not clearly and unmistakably exist prior to service and the Veteran's claim will be analyzed as one for direct service connection for bilateral hearing loss.  See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir 2004) (concluding that "if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder.").

Here, the April 2010 VA examination report demonstrates that the Veteran has a current hearing loss disability for VA purposes.  See 38 C.F.R. § 3.385.  Further, in-service noise exposure has been conceded by the RO on the account of the fact that the Veteran's military occupational specialty was that of an equipment records and parts specialist and he worked in a motorpool.  Thus, the question is one of nexus.  

In this case, the Veteran has stated his lay opinion as to why he believes that his hearing loss and tinnitus are related to military service - his noise exposure during service.  After reviewing the evidence of record, however, the Board finds that the preponderance of the evidence weighs against the claims.  In this regard, the Board notes that the VA audiologist, after weighing the evidence of record, concluded that the Veteran's hearing loss and tinnitus were not related to service.  The audiologist provided a rationale for why delayed onset hearing loss does not occur, thus intimating that had the Veteran sustained permanent hearing loss as a result of acoustic trauma in service, his October 1991 audiogram would have supported that finding.  However, the audiologist noted that the Veteran's hearing was within normal limits at the time of his separation from service, which evidence suggested that the Veteran's hearing loss was a post-service occurrence.  The audiologist also noted that the Veteran's pre-service audiogram indicated some mild hearing loss, but determined that that hearing loss was likely related to his otitis, which was noted in service, as multiple later audiograms showed hearing within normal limits.  

The audiologist also stated her opinion that the Veteran's tinnitus was less likely than not related to acoustic trauma in service, but was a result of his later-occurring hearing loss.  Notably, this opinion is not contradicted by any evidence of record and although the Veteran reported the onset of tinnitus to have been more than 15 years earlier, he has not at any point during the pendency of his claim asserted that his tinnitus began in service.

The Board notes that the United States Court of Appeals for Veterans Claims has held that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a medical relationship between the Veteran's in-service exposure to loud noise and a current disability.  Hensley v. Brown, 5 Vet. App. 155 (1993).  Here, however, as the evidence fails to demonstrate a relationship between the Veteran's hearing loss and service, service connection is not warranted.

In this regard, the Board has considered the private physician's opinion, but finds that it is not adequate to support a finding of service connection.  Notably, a medical opinion arising from a medical examination is considered adequate "where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'"  See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994)).  The opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."  Stefl, 21 Vet. App. at 124.

In the instant case, the private physician provided no rationale for his opinion, to include even a discussion of the Veteran's service noise-exposure or the fact that his hearing was found to be within normal limits at the time of discharge.  Although there are no reasons or bases requirements imposed on a medical examiner, Ardison, supra, the standards of adequacy for private and VA medical opinions are the same.  See Stefl, supra.  As the private physician provided no support for his favorable opinion, the Board concludes that it is of less probative value.  

Rather, the Board finds more persuasive the VA audiologist's negative nexus opinion regarding the etiology of the Veteran's hearing loss and tinnitus, which opinion is supported by the reasons stated therein.  The VA audiologist provided a medical explanation for why the Veteran's theory of the case should be rejected.  The Board is persuaded by the audiologist's explanation because of her expertise and because the record is consistent with the explanation.  Further, while the Veteran is certainly competent to report concerning his ability to hear in service, there is no indication that any level of diminished hearing in service was evident in the audiograms conducted after entry.  Indeed, all service audiograms performed subsequent the Veteran's entry into service revealed a normal level of hearing.  Moreover, the Veteran has not indicated a continuity of tinnitus symptomatology since service, as the Veteran did not report the onset of tinnitus to have been in service.  

The Board also finds that there is no evidence to suggest that sensorineural hearing loss manifested to a compensable degree within a year of the Veteran's separation from service, as the record contains no audiometric data dated within a year of the Veteran's discharge from service and his current level of hearing is not compensable under the rating criteria.  See  38 C.F.R. § 4.85, Tables VI and VII (2012).  A presumption of service incurrence, therefore, cannot be made.  38 C.F.R. §§ 3.307, 3.309.

Accordingly, because the preponderance of the evidence is against the Veteran's claims, his claims of service connection for hearing loss and tinnitus must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not helpful to this Veteran.  See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990); 38 C.F.R. § 3.102 (2012).



ORDER

Service connection for hearing loss is denied.

Service connection for tinnitus is denied.



_________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs