Citation Nr: 1308573 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 09-11 376A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for right ear hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran had active service from June 1965 to November 1969. These matters come before the Board of Veterans' Appeals (BVA or Board) from a February 2007 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in New York, New York. FINDINGS OF FACT 1. Left ear hearing loss preexisted the Veteran's service and was not aggravated by service. 2. There has been no demonstration by competent clinical evidence, or credible lay evidence, that right ear hearing loss was present in service, that right ear hearing loss disability was demonstrated to a compensable degree within a year of discharge from service, or that there is a nexus or link between right ear hearing loss disability and the Veteran's active service. 3. Tinnitus was not shown in service or within a year of discharge from service, and neither competent medical evidence, nor competent and credible lay evidence, establishes a nexus or link between tinnitus and the Veteran's active military service. CONCLUSIONS OF LAW 1. Left ear hearing loss disability was not incurred in, or aggravated by, active service, nor may it be presumed (as an organic disease of the nervous system) to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309, 3.385 (2012). 2. Right ear hearing loss disability was not incurred in, or aggravated by, active service, nor may it be presumed (as an organic disease of the nervous system) to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). 3. Tinnitus was not incurred in or aggravated by active service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies in the instant case. Duty to Notify 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 VCAA notice 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. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). By correspondence dated in February 2006, March 2006, September 2006, November 2006, and April 2008 the Veteran was informed of the evidence and information necessary to substantiate the claims, the information required of the Veteran to enable VA to obtain evidence in support of the claims, the assistance that VA would provide to obtain evidence and information in support of the claims, and the evidence that should be submitted if there was no desire for VA to obtain such evidence. In the March 2006 letter, the Veteran received notice regarding the assignment of a disability rating and effective date in the event of an award of VA benefits. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice was completed prior to the initial AOJ adjudication of the claims. Duty to Assist The Veteran's service treatment records are associated with the claims file, as are VA medical records. In August 2006 the Veteran underwent a VA audiological examination that addresses the medical matters presented by this appeal. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinion obtained in this case is more than adequate. The August 2006 VA examiner elicited information concerning the Veteran's military service, and the noise exposure received therein. The opinion considered the pertinent evidence of record, and included a specific reference to the Veteran's service enlistment and service separation examinations. Supporting rationale was provided for the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Veteran has indicated that he sought treatment at a VA facility in Albany, New York for his hearing problems from 1970 to 1972. Both the Veteran and VA have been unable to obtain any such records, and VA has informed the Veteran of the unavailability of the records. The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met, and the Board will address the merits of the claims. Laws and regulations The Veteran asserts (primarily in a July 2007 statement) that he has hearing loss and tinnitus as a result of exposure to tank and machine gun fire while serving in an armored cavalry unit during service. He states that he had no ear protection during service and was also exposed to noise from aircraft engines while undergoing airborne training. Finally, the Veteran asserts that he was exposed to incoming heavy mortar explosions in Vietnam. While the Veteran's DD Form 214 reflects that his military occupational specialty was a Finance Officer, the Veteran's personnel records note that he served as a platoon leader with an armored cavalry unit in Europe and also served 11 months in Vietnam. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). This rule does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a). Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). In regard to claims specific to service connection for hearing loss, the Veterans Benefits Administration Adjudication Manual states that "Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 CFR 3.309(a)." M21-1MR III.iv.4.B.12.a. As such, service connection for sensorineural hearing loss (as an organic diseases of the nervous system) may be presumed, subject to rebuttal, if manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. § 3.307, 3.309. Moreover, the concept of continuity of symptomatology as clarified by Walker, Supra., is applicable in this case. While it is unclear in this case whether the Veteran's hearing loss is sensorineural in nature, the Board will afford the Veteran the benefit of the doubt and assume that it is in this case. There is no prejudice to the Veteran in taking this posture as it affords the Veteran consideration of certain presumptions (presumptive service connection and continuity of symptomatology) that he would otherwise not be entitled to. The Board observes that a Veteran's "PULHES" profile reflects the overall physical and psychiatric condition of an individual on a scale of 1 (high level of fitness) to a 4 (medical condition or physical defect that is below the level of medical fitness required for retention in the military service). The "P" stands for "physical capacity or stamina," the "U" indicates "upper extremities," the "L" is indicative of "lower extremities," the "H" reflects the condition of the "hearing and ears," the "E" is indicative of the "eyes," and the "S" stands for "psychiatric condition." Odiorne v. Principi, 3 Vet. App. 456 (1992). VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The determination of whether a veteran has a service-connectable hearing loss is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a "disability" when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. Audiometric results were reported pursuant to the standards set by the American Standards Association (ASA) during some portions of the Veteran's service. Standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI) since November 1, 1967, however. Analysis A June 1964 Army "Training Camp" examination noted that the Veteran's ears were normal. Audiometric findings (American Standards Associates (ASA) units as converted to International Standards Organization (ISO) units) were, in pertinent part, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 10 Not tested 5 LEFT 30 20 20 Not tested 40 The Veteran's July 1965 "entrance" to active duty and Airborne examination noted that the Veteran's ears were normal. Audiometric findings (American Standards Associates (ASA) units as converted to International Standards Organization (ISO) units) were, in pertinent part, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 15 Not tested 15 LEFT 25 20 20 Not tested 40 A September 1968 service "separation examination" noted that the Veteran's ears were normal. Audiometric findings were, in pertinent part, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 5 Not tested 5 LEFT 0 0 5 Not tested 5 A May 1969 service "separation examination" noted that the Veteran's ears were normal. Audiometric findings were, in pertinent part, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 Not tested 35 LEFT 15 15 15 Not tested 30 A November 1969 service "separation examination" noted that the Veteran's ears were normal. Audiometric findings were, in pertinent part, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 0 Not tested 0 LEFT 15 5 0 Not tested 0 The Veteran's service treatment records noted no complaints or diagnoses relating to hearing loss, tinnitus, or any ear problems. A November 1973 Army reserves examination noted that the Veteran's ears were normal. Audiometric findings were, in pertinent part, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 30 35 Not tested 70 LEFT 35 35 30 Not tested 30 At an August 2002 VA audiological examination the Veteran reported bilateral hearing loss since his military days around "big guns." Tinnitus and ear infections were denied. While hearing loss was noted, no opinions of hearing loss etiology were offered. At an August 2006 VA Audiological examination the Veteran complained of decreased hearing and tinnitus. The Veteran indicated that during service he served as a tank commander and reported significant amounts of noise exposure from gunnery, aircraft, and helicopters. He noted that there was no significant post-service recreational or occupational noise exposure. The Veteran reported a constant bilateral ringing tinnitus which began 2-3 years prior. The reported audiometric findings demonstrated right ear and left ear hearing loss disability for VA purposes. 38 C.F.R. § 3.385. The examiner commented, in pertinent part, as follows: [The Veteran] presents with a mild to moderately-severe sensorineural hearing loss bilaterally. Discharge physical of 1969 shows no decrease in hearing compared to entry physical of 1965. Tinnitus did not begin until 2003. Therefore it is not at least as likely as not that the [V]eteran's hearing loss and tinnitus are due to military noise exposure. A December 2006 VA record reveals that the Veteran's ears were flushed and cleared of cerumen. I. Left ear VA law provides that a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C.A. § 1111. The presumption of soundness attaches only where there has been an induction examination during which the disability about which the veteran later complains was not detected. The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." 38 C.F.R. § 3.304(b). The law further provides that, if a preexisting disorder is noted, or established by clear and unmistakable evidence, as existing upon entry into service, the veteran cannot bring a claim for service incurrence for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case, the provisions of 38 U.S.C.A § 1153 and 38 C.F.R. § 3.306 apply, and the burden falls on the veteran to establish aggravation. Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If a presumption of aggravation under section 1153 arises, due to an increase in a disability in service, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153;38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417; Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The Veteran's active duty service began on June 9, 1965. As such, the Board does not consider the June 1964 or July 1965 service examinations to be "entrance" examinations and the presumption of soundness, as to left ear hearing loss, attaches. However, as will be discussed below, this presumption is rebutted by clear and unmistakable evidence of record. The June 1964 service audiogram completed prior to the start of the Veteran's military service demonstrated left ear hearing loss disability for VA purposes. 38 C.F.R. § 3.385. As such, the record clearly and unmistakably establishes that the Veteran had left ear hearing loss prior to his June 1965 service. Additionally, clear and unmistakable evidence establishes that the pre-existing left ear hearing loss did not undergo any increase during service. The August 2006 VA examiner has indicated that the Veteran's hearing loss did not decrease from entry to separation, and service audiograms, including the November 1969 service separation examination, show no significant increase in left ear hearing loss. In fact, the November 1969 service audiogram actually shows left ear hearing improvement. In view of the foregoing, the Board finds that clear and unmistakable evidence of record shows that left ear hearing loss disability was present prior to the Veteran's active service and was not aggravated by such service. 38 U.S.C.A. § 1111. As noted, service audiograms have revealed no loss of left ear loss during service, and hearing loss was not indicated on the Veteran's PULHES profile, as the Veteran's rating for hearing (H) reflects a 1 on the Veteran's May 1969 service physical examination, just months prior to separation, and long after his service in an armored Calvary unit. In view of the discussion above, it is clear that the pre-existing left ear hearing loss was not aggravated by the Veteran's active service. Accordingly, the preponderance of the evidence is against service connection for left ear hearing loss disability. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. II. Right ear Neither right ear hearing loss, nor a medical finding of a chronic clinically significant change in hearing ability in the right ear was demonstrated during the Veteran's active service. Moreover, right ear hearing loss "disability" for VA purposes was not demonstrated to a compensable degree within the first year of discharge from such service, and was not shown until November 1973, some four years following service. Significantly, there is no competent medical opinion linking right ear hearing loss disability to service, and the August 2006 VA examiner essentially indicated that the Veteran's left ear hearing loss was not related to his military service. The Veteran is competent to report having sustained acoustic trauma during his periods of service, and as such is consistent with the circumstances of his service, such assertions are deemed to be credible. The Board notes that the Veteran is competent to provide statements concerning factual matters of which he has first hand knowledge (i.e., experiencing or observing noise exposure and hearing loss problems during or after service). 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 claim for service connection 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). However, the Veteran lacks the medical training and expertise to opine that any current right ear hearing loss is etiologically related to acoustic trauma in service or that his preexisting left ear hearing loss was aggravated by service. King v. Shinseki, 700 F. 3d 1339 (Fed. Cir 2012). While the Veteran is competent to report that he has had right ear hearing loss since service, the Board finds that the Veteran's statements as to continuity of symptomatology since service are less than credible (See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the veteran). In this regard, the Board notes that the Veteran never indicated that he had hearing loss or ear problems on the medical history report portion of his multiple service examinations, including in May 1969. In short, the Board does not find that the Veteran's lay statements are sufficient to establish continuity of symptomatology of right ear hearing loss. In sum, service connection for right ear hearing loss is not warranted. III. Tinnitus The Board acknowledges that the Veteran is competent to report that he experiences ringing in his ears, which is the clinical feature of tinnitus. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). The Board notes, however, that the Veteran's multiple service examinations do not reference any complaint concerning ringing in the ears. Tinnitus was not shown in service, and no health professional has linked such a disability to service. In fact, the August 2006 VA examiner specifically indicated that the Veteran's tinnitus did not begin until 2003, many years after service. In considering the Veteran's tinnitus claim, to the extent such tinnitus may be associated with the Veteran's sensorineural hearing loss, it is arguably an organic disorder of the nervous system under 38 C.F.R. § 3.309(a). Assuming for the sake of argument that this is the case, the Board observes that while the Veteran may be competent to report that he has had ringing in his ears since service, the Board finds that the Veteran's statements as to continuity of tinnitus symptomatology since service have not been consistent, and thus lack credibility (See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the veteran). In this regard, the Board notes that the Veteran never indicated that he had ear problems on the medical history report portions of his service examinations, and the Veteran denied that he had any tinnitus at the August 2002 VA audiological examination, and at the August 2006 VA Audiological examination the Veteran reported that his tinnitus had only begun 2-3 years prior. Thus, to the extent that tinnitus could be associated as sensorineural hearing loss and can be considered as a chronic disease, the Board does not find that the Veteran's lay statements are not sufficient to establish continuity of symptomatology. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence weighs against the claims, that doctrine is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for left ear hearing loss is denied. Service connection for right ear hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs