Citation Nr: 1309692 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 10-25 363 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for right ear 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 C. Eckart, Counsel INTRODUCTION The Veteran served on active duty from May 1969 to November 1970, with service in Vietnam. This appeal to the Board of Veterans' Appeals, hereinafter the Board, arose from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, that, in pertinent part, denied the Veteran's claims for entitlement to service connection for right ear hearing loss and tinnitus. The case was subsequently transferred to the RO in Chicago, Illinois. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at the RO in September 2012. A transcript of that hearing was prepared and has been included in the claims folder for review. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (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 the 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. Here, during the hearing, the VLJ noted that basis of the prior determination and noted the elements of the claim that were lacking to substantiate the claim for benefits. In addition, the 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 claim. Moreover, the appellant has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. 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 claim based on the current record. A rating action in March 2009 denied service connection for left ear hearing loss. A notice of disagreement was filed in February 2010 and a statement of the case was issued in June 2011. The Veteran did not file a timely substantive appeal and that matter is not currently before the Board. See 38 C.F.R. § 20.200 (2012) (An appeal consists of a timely filed notice of disagreement in writing and after a statement of the case has been furnished, a timely filed substantive appeal.). FINDINGS OF FACT 1. A right ear hearing loss did not have its clinical onset in service and is not otherwise related to active duty; a sensorineural hearing loss of the right ear was not exhibited within the first post service year. 2. Tinnitus did not have its clinical onset in service and is not otherwise related to active duty. CONCLUSIONS OF LAW 1. A right ear hearing loss was not incurred or aggravated in service, and a sensorineural hearing loss of the right ear may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.303, 3.304, 3.307, 3.309, 3.385 (2012). 2. Tinnitus was not incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing the information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, which information and evidence that VA will seek to provide and which information and evidence the claimant is expected to provide. By way of a letter dated in October 2007, the Veteran was furnished notice of the type of evidence needed in order to substantiate the claim. The Veteran was also generally informed that he should send to VA evidence in his possession that pertains to the claim and advised of the basic law and regulations governing the claim, the cumulative information and evidence previously provided to VA (or obtained by VA on the appellant's behalf), and provided the basis for the decision regarding the claim. The Veteran was provided with adequate notice of the evidence which was not of record, additional evidence that was necessary to substantiate the claim, and he was informed of the cumulative information and evidence previously provided to VA, or obtained by VA on his behalf. For the reasons above the Board finds that VA substantially complied with the specific requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate the claim and the relative duties of VA and the claimant to obtain evidence); Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies the VCAA notice); and 38 C.F.R. § 3.159(b) (the content of the notice requirement, pertaining to the evidence in the claimant's possession or a similar request to that effect). In this context, it is well to observe that VCAA requires only that the duty to notify be satisfied, and that claimants be given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993). Sutton v. Brown, 9 Vet. App. 553 (1996). In addition, where a claim involves basic entitlement to service connection, the Court held that the VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all of the elements of a claim for service connection, including notice that a disability rating and effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Here, the Board notes that the Veteran was provided with Dingess-type notice via the letter that was provided to him in October 2007. The Board also finds that VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim. In particular, the information and evidence associated with the claims file consists of the Veteran's service records, post-service treatment records and reports, VA examinations, a Board hearing transcript, and written statements submitted by the Veteran and his representative in support of the claim. The Board has reviewed the Veteran's Virtual VA claims file. Moreover, the VA has a duty to obtain a medical examination or opinion when such examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012). In this respect, the record reflects that the service member did undergo a VA audiological examination in conjunction with his claim for benefits. The results from that examination have been included in the claims folder for review. It is noted that in the examination, the examiner reviewed the history, the available medical records, supplied an opinion and provided sufficient information so the Board can render an informed determination with respect to the appellant's assertions. Therefore, the Board finds that this report is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Based on the foregoing, the Board concludes that there is no identified evidence that has not been accounted for with respect to the appellant's claim and that, under the circumstances of this case, VA has satisfied its duty to assist the Veteran. Accordingly, further development and further expending of VA's resources is not warranted. II. Analysis The Board has reviewed all the evidence in the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). Also, 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 appellant. 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. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b) (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) (2012). For certain chronic diseases, such as sensorineural hearing loss, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within a year following discharge from active service. 38 U.S.C.A. § 1101, 1112, 1113 (West 2002); 38 C.F.R. § 3.307, 3.309 (2012). In the case of a veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, the Secretary of the VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304. In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 (West 2002 & Supp. 2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). With respect to the first requirement of a current disability, before service connection may be granted for hearing loss, that loss must be of a particular level of severity. For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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 (2012). Even though disabling hearing loss may not be demonstrated at separation, a service member may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). The threshold for normal hearing is from zero to 20 decibels and higher threshold levels indicate some degree of hearing loss. Id. (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)). The Veteran claims entitlement to service connection for hearing loss of the right ear and tinnitus. He alleges that he was injured by a M79 grenade that exploded above his head in Vietnam, which he described as a "friendly fire" incident. He has testified at his hearing in September 2012 that there was acoustic trauma from guns aboard vehicles he was on or near including M79 grenade launchers and 50 caliber machine guns, as well as personal weapons. He reports noticing both hearing loss and tinnitus since his service. He testified that his post service noise exposure was basic "everyday life." He acknowledged working as a bartender, plumber and plumbing inspector after service. He has described his tinnitus as a "ringing" in his ears. Service personnel records show that the Veteran served as an armor crewman, with service in Vietnam. The Veteran has testified that he never saw a tank in Viet Nam; he was attached to an infantry division and then deployed to the "11th Armored Cav." As the nature of his service is consistent with his claimed noise exposure, the Board concedes that he was exposed to acoustic trauma in service. Service treatment records show that the Veteran reported "yes" to having ear, nose or throat (ENT) trouble in the November 1968 report of medical history on entrance examination upon induction. However he denied hearing loss or running ears in this report, and the physician's summary was significant only for a nose fracture with trouble breathing, as pertaining to ENT issues. The November 1968 entrance examination revealed on audiological testing, the hearing in his right ear pure tone thresholds at 500, 1000, 2000, and 4000 Hertz (Hz) measured at 5, 5, 5, and 0 decibels respectively. No measurement was taken at 3000 Hz. His ears were normal on visual inspection. No hearing loss or ear problems are shown in the service treatment records. On separation examination in November 1970, the hearing in his right ear on audiological testing at 500, 1000, 2000, 3000 and 4000 Hz measured at 5, 5, 5, 0, and 0 decibels respectively. Post service, there is no record of treatment for hearing loss or ear problems prior to 2008. The Veteran conceded in his June 2007 claim that his hearing loss and tinnitus were untreated. He estimated that the date of onset of tinnitus and hearing loss was 1990 (he claimed PTSD began in 1971). At his September 2012 hearing, he acknowledged that he did not get his hearing tested until 2007, in conjunction with filing his claim. He indicated that he received no current treatment for hearing loss or tinnitus, although he indicated that he would soon be requesting to obtain hearing aids from the VA. In June 2008, the Veteran was seen in VA internal medicine, with complaints that included constant ringing in his right ear. He was noted to have worked in "eleven armored" and around Sheridan tanks which were loud. He had constant ringing in his right ear and on review of systems reported hearing loss since the military. However physical examination and diagnosis focused on other medical problems with no reference to the ears or hearing loss. A November 2008 internal medicine record addressing other medical problems noted on review of systems that the Veteran denied hearing loss on ENT review. Subsequent treatment records include a July 2009 record which also revealed hearing loss was denied on review of systems. Hearing loss and tinnitus were not on the active problem list in the VA treatment records from 2008 to 2009. A July 2008 lay statement from the Veteran's sister stated that she noticed the Veteran seemed to have hearing problems on his return from Vietnam in 1970, as she had to repeat herself several times when speaking to him. She also indicated the Veteran mentioned having ringing in his ears. The report of an April 2008 VA examination included claims file review and examination of the Veteran. The examiner commented that the induction examination of November 1968 and the November 1970 discharge examination indicated normal hearing including the right ear. His current complaints were of bilateral hearing loss and tinnitus. This caused the greatest difficulty of listening in crowds. He was noted to have spent approximately one year in Vietnam without hearing protection and used an M60. He was exposed to nearby 50 caliber machine gun and incoming artillery fire. Occupationally he worked after service, with a history of being a bartender for 12 years with various noise levels without hearing protection. He also worked 4 years in a factory using small power tools and lathes with hearing protection. He worked 7 years as a plumber with periodic noise using hearing protection and 11 years as a plumbing inspector without significant noise exposure. Recreationally, he shot trap approximately 10 times with hearing protection, occasionally used power tools with hearing protection and occasionally hunted small game. The Veteran denied any history of fluctuating hearing loss, familial hearing loss, dizziness, ear pain, ear drainage, ear infection, ear surgery, facial numbness, or eardrum perforation. Regarding tinnitus the Veteran described it as bilateral and constant. It was said to have began in 1970 while in service, according to the Veteran. On the authorized audiological evaluation, pure tone thresholds in his right ear at 500, 1000, 2000, 3000 and 4000 Hz were shown to be 15, 25, 25, 40 and 50 decibels respectively. The puretone average was 35 decibels. CNC word testing revealed the right ear to measure 94 percent. Speech audiometry revealed speech recognition ability of 94 percent in the right ear. Further testing revealed findings indicating normal, middle ear pressure and motility for the right ear. He was diagnosed with sensorineural hearing loss (SNHL) on the right. There was normal hearing from 250 to 2000 Hz, mild loss at 6000 Hz, and moderately severe los at 3000-4000 Hz. The examiner gave an opinion that it is less likely than not (less than a 50 percent chance) that the Veteran's hearing loss is caused by or a result of his military noise exposure. The examiner explained that the discharge examination indicated normal hearing bilaterally. In addition, no significant changes were noted relative to his induction examination. This would rule out a hearing loss while in service. Regarding the tinnitus, the examiner also opined that that it is less likely than not (less than a 50 percent chance) that the Veteran's tinnitus is caused by or a result of his military noise exposure. The rationale again pointed to his normal hearing shown on discharge, and additionally, the fact that there was no mention of tinnitus in the claims file. A September 2010 VA examination for PTSD is shown to include complaints of tinnitus (but not hearing loss) in regards to other medical issues. The Veteran endorsed short and long term memory loss and reported having a "terrible time remembering things." The rest of the examination focused on PTSD complaints. The Veteran is competent to state that he experienced a decrease in his hearing acuity and ringing of the ears. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Nevertheless, the Board must determine the credibility of the appellant's lay statements and testimony that he experienced this decrease in service and thereafter, as well as the ringing in the ears which began shortly after he was exposed to in-service acoustic trauma. The Veteran's contentions that right ear hearing loss and tinnitus were caused by acoustic trauma he experienced while he was on active duty are generally not supported by the overall evidence of record. While he is competent to report acoustic trauma in service and his claim to this effect is credible, it is not credible that he had hearing loss and tinnitus in service that has continued since that time. There are no treatment records reflecting hearing loss or tinnitus for more than 35 years after service discharge. When seen for treatment over the past few years, he has denied hearing loss at times. VA treatment records from November 2008 and July 2009 revealed he denied having hearing loss on review of systems. When he filed his claim for benefits, he recalled hearing loss and tinnitus having its onset in 1990 (PTSD reportedly had its onset in 1971). Later he amended his estimate as to the date of onset as 1970 and then to a specific combat incident. The Veteran does not have any medals, commendations or other indicia of combat. His current claim that tinnitus and hearing loss occurred during a combat incident is not consistent with the circumstances of his service. It was reported during his recent VA psychiatric examination that he endorsed memory loss. The Veteran is not a reliable historian and the claim that his hearing loss had its onset in service and continued since that time is in direct contrast to the audiometric testing at separation from service that showed normal findings, essentially unchanged since service entry. His sister provided a statement that she recalled his having difficulty hearing things since active duty and also mentioning that he had "ringing in his ears". This anecdotal statement is less convincing than the separation audiometric examination with regard to the hearing loss and the statement regarding tinnitus does not place its onset in service. The Board finds the opinion by the audiologist, and individual with training in the nature and etiology of auditory disability, to be of greater probative value than the Veteran's opinion and his sister's opinion. The Board must weigh the credibility and probative value of the medical opinions, and in so doing, the Board may favor one medical opinion over the other. In Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), the Court held that a claims file review, as it pertains to obtaining an overview of a service member's medical history, is not a requirement for private medical opinions. A review of the claims file by a VA examiner, without more, does not automatically render the VA examiner's opinion competent or persuasive since the claims file is a tool to assist in familiarity for the physician with the claims file, and conversely a private medical opinion may not be discounted solely because the opining clinician did not review the claims file as there are other means by which a physician can become aware of critical medical facts, such as a history of treating the service member for an extended period of time and/or reviewing pertinent medical literature. The relevant focus is not on whether the clinician had access to the claims file, but instead on whether the clinician was "informed of the relevant facts" in rendering a medical opinion. In this instance, the VA examiner's opinion of April 2008 was not equivocal. That examiner was very specific and direct in the opinion that was provided. See generally Bloom v. West, 12 Vet. App. 185 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). See also 38 C.F.R. § 3.102 (2012) (when considering application of the benefit- of-the-doubt doctrine, reasonable doubt is one within the range of probability, as distinguished from pure speculation or remote possibility). The Board would further point to the opinion provided by the VA audiologist was not vague or ambiguous with the assertions made, and the examiner discussed why the appellant's right ear hearing loss and tinnitus were not related to service. In other words, the Board believes that the VA examiner provided sound reasoning in the analysis of the situation. The VA medical specialist reviewed in detail the pertinent medical records, discussed the salient facts, and provided a complete rationale for all conclusions presented, as noted in the discussion above. Here, a medical expert has fairly considered all the evidence and the opinion may be accepted as an adequate statement of the reasons and bases for a decision when the Board adopts such an opinion. Wray v. Brown, 7 Vet. App. at 493. The Board does, in fact, adopt the opinion provided in April 2008 on which it bases its determination that service connection for right ear hearing loss and tinnitus are not warranted. In other words, the Board attaches the most significant probative value to the opinion as it is well reasoned, detailed, consistent with other evidence of record, and included an access to the accurate background of the service member. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Thus, the Board finds that the preponderance of the credible, competent evidence is against the appellant's claim for service connection for right ear hearing loss and tinnitus. The provisions of 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012) regarding reasonable doubt are not applicable. The claim must be denied. Finally, the Board finds the lapse in time after discharge from service to the showing of the purported disorder to be probative evidence against the appellant's claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim). Therefore, it is the conclusion of the Board that the preponderance of the evidence is against the Veteran's claim for entitlement to service connection for hearing loss of the right ear and tinnitus. Based on the foregoing discussion, the Board finds that the Veteran's claim must be denied. While the Veteran has been diagnosed with right ear hearing loss and tinnitus, the weight of the medical evidence is against a finding that these conditions are related to his military service. On these facts, the preponderance of the evidence is against the claim. Therefore, the benefit of the doubt doctrine is not for application herein, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs