Citation Nr: 1309849 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 10-18 109 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD A. M. Clark, Counsel INTRODUCTION The Veteran served on active duty from May 1953 to May 1955. These matters come before the Board of Veterans' Appeals (BVA or Board) from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified before a Decision Review Office (DRO) in September 2010 and the undersigned Veterans Law Judge (VLJ) in November 2011. Copies of the transcripts are of record. Most recently, in February 2012, the Board remanded the issues on appeal, as well as a claim of entitlement to service connection for dental trauma. In October 2012, the Appeals Management Center (AMC) in Washington, DC granted service connection for loss of three upper teeth (claimed as dental trauma) (noncompensable from April 30, 2010), and service connection for dental treatment purposes. Because he has not appealed the ratings or effective dates assigned, no claim regarding this disorder is in appellate status at this time. This case was remanded by the Board in February 2012 for additional development. Pursuant to that Remand, the RO/Appeals Management Center was instructed to request from the Veteran any identifying information and necessary authorization to obtain private and VA treatment records and to provide the Veteran with an additional VA examination. The Board is now satisfied there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). A January 2013 supplemental statement of the case was issued and the case is once again before the Board. 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 current bilateral hearing loss is not shown to have been present in service, or for many years thereafter, nor is it shown to be the result of any incident therein. 2. The Veteran's current tinnitus is not shown to have been present in service, or for many years thereafter, nor is it shown to be the result of any incident therein. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in or aggravated by active duty service, and may not be presumed to have been. 38 U.S.C.A. §§ 1110, 1111, 1112, 1131, 1132, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). 2. Tinnitus was not incurred in or aggravated by active duty service. 38 U.S.C.A. §§ 1110, 1131, 1132, 1137 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Assist and Notify As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. In January 2009 the Veteran was notified via letter of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He was additionally notified of how VA determines disability ratings and effective dates if service connection is awarded. Therefore, adequate notice was provided to the Veteran prior to the transfer and recertification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). After a careful review of the file, 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 VA outpatient treatment records. Additionally, he has submitted private treatment records. Moreover, the Board has reviewed the Veteran's Virtual VA claims file. The Board notes that the Veteran once again requested a copy of his separation examination in a February 2013 statement. Such was sent to the Veteran in March 2013. The Board parenthetically notes that all of the Veteran's service treatment records, except for his May 1955 separation examination have been deemed lost. The United States Court of Appeals for Veterans Claims (Court) has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Because of missing records, the analysis below has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). The January 2009 letter from the RO informed the Veteran that his military records were apparently destroyed in a fire on July 12, 1973 at the National Archives and Records Administration. Documents in the claims file reflect that the Veteran is aware that these documents are missing. The Veteran has not provided these records. An October 2000 Formal Finding was completed reflecting that all procedures had been correctly followed and all efforts to obtain the needed military information had been exhausted. It was noted that further efforts would be futile and that based on these facts, the records are not available. The Board finds that the duty to assist in obtaining additional in-service treatment records has been met to the extent possible under the circumstances. Discussion of the Veteran's September 2010 DRO and April 2012 VLJ hearings is also necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. Entitlement to service connection for bilateral hearing loss and tinnitus were identified as issues at the hearings. Sources of evidence relevant in this regard were identified during these hearings. Indeed, as noted above, the Board remanded the Veteran's claims in February 2012 to locate outstanding VA and private treatment records and to afford the Veteran with a VA examination. The Board finds that, consistent with Bryant, the DRO and VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Next, a March 2012 VA examination and January 2013 addendum medical opinion with respect to the issues on appeal were obtained. To that end, 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 opinions together adequately address all of the Veteran's contentions and are adequate, as they are predicated on a full reading of the Veteran's claims file. They consider all of the pertinent evidence of record, the statements of the appellant, and provide a sufficient rationale for the opinions stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion concerning the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4). Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. 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). II. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. 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) (2012). The provisions of § 3.303(b), however, only apply to the list of disabilities identified under § 3.309(a). Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Service connection may be granted for any disease diagnosed after discharge from active duty 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). Service connection may also be established for a current disability on the basis of a presumption under the law that certain chronic diseases, such as other organic diseases of the nervous system, to include sensorineural hearing loss, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1112, 1113 and 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307 and 3.309(a). Service connection for sensorineural hearing loss may be established based on a legal "presumption" by showing that it manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307, 3.309(a). The Board must determine whether the evidence supports the claims or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claims, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran is claiming entitlement to service connection for bilateral hearing loss and tinnitus. Hearing impairment is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hz is 40 decibels or greater; or when the auditory thresholds 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 CFR § 3.385 (2012). Initially, the Board finds that a hearing loss disability for VA compensation purposes has been shown. A March 2012 VA audiological examination report revealed the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 50 65 80 LEFT 20 30 35 55 60 Speech audiometry revealed speech recognition ability of 82 percent in his right ear and 86 percent in his left ear. The diagnosis was bilateral sensorineural hearing loss and subjective tinnitus. In considering in-service incurrence, the Board notes that the service treatment records have been deemed missing. Nevertheless, his May 1955 separation examination was located and reflects normal results. A clinical evaluation of his ears was normal at that time. Tinnitus was not mentioned in his May 1955 separation examination report. Concerning there being evidence of an in-service injury, the Veteran's DD Form 214 reflects that his Military Occupational Specialty was that of a clerk typist. The Veteran has testified and submitted written statements alleging that he was exposed to loud noises during infantry training from rifles, machine guns and hand grenade training. See February 2013 statement. While there is no documentation of hearing loss or tinnitus in service, based on a review of the Veteran's contentions and his DD-214, the Board will concede that he had noise exposure in service. However, there is no indication that such exposure resulted in any injury. As was noted above, the Veteran's separation examination did not indicate any abnormalities with respect to the Veteran's ears upon separation. His separation examination also reflected normal whisper testing results. The lack of disability or injury in service does not in itself preclude a grant of service connection. Indeed, service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). Nevertheless, a review of the post-service evidence does not support the conclusion that any current bilateral hearing loss or tinnitus is causally related to active service for the reasons discussed below. First, the post-service evidence does not reflect complaints for bilateral hearing loss or tinnitus until August/September 2007. A VA Audiology Consultation at that time reflected mild to severe mid to high frequency sensorineural hearing loss with intermittent tinnitus. It was noted that the Veteran had experienced acoustic trauma at a firing range in early 2007. This objective evidence simply does not reflect continuity of symptomatology. Moreover, as the evidence of record fails to establish any clinical manifestations of sensorineural hearing loss within one year of service discharge, the criteria for presumptive service connection on the basis of a chronic disease have not been satisfied. 38 C.F.R. § 3.309 (2012). However, notwithstanding the absence of documented post-service symptomatology related to his bilateral hearing loss for several decades, the evidence includes the Veteran's statements and testimony asserting continuity of symptoms with respect to his hearing loss since active duty service. The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). There is little dispute that Veteran is competent to report symptoms of difficulty hearing and experiencing tinnitus because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007) ("Sometimes 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."). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination. Here, the Board finds that the Veteran's reported history of continued bilateral hearing loss and tinnitus since active service, while competent, is nonetheless not credible. Emphasis is placed on the multi-year gap between discharge from active duty service (1955) and initial reported symptoms and diagnosis as early as 2007, over 50 years after service separation. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (indicating that "evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the [V]eteran's health and medical treatment during and after military service, as evidence of whether a pre-existing condition was aggravated by military service"). Consideration is also given to the fact that the Veteran made no reference to experiencing hearing loss and tinnitus since service, when first evaluated audiologically in September 2007. Rather, the Veteran reported at that time that he had experienced an acoustic trauma at a firing range in early 2007. One would expect the Veteran to have reported a 50 year history of hearing loss/difficulty or tinnitus if such existed. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) ; see also Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). There is simply no evidence, other than his own statements, to support his assertions of experiencing bilateral hearing loss and tinnitus since service. Moreover, although he filed a claim for dental issues in June 1999, it was not until November 2008 that he filed claims for bilateral hearing loss and tinnitus. The fact that the Veteran was aware of the VA benefits system, sought out a claim for another disability, but made no reference to his purported history of hearing loss or tinnitus since service, weighs heavily against his credibility. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring) (discussing the distinction between cases in which there is a complete absence of any evidence to corroborate or contradict the testimony, and cases in which there is evidence that is relevant either because it speaks directly to the issue or allows the Board as fact finder to draw a reasonable inference). Had the Veteran been experiencing hearing loss and tinnitus at that time, there seems to be no reason why the Veteran would not have identified these disabilities. The value of the Veteran's assertions are additionally diminished, given that there is clinical evidence indicating that his ears were normal at the time he left service. Accordingly, the Board finds the Veteran's statements asserting continuity of symptomatology of sensorineural hearing loss since service lack credibility and are without probative value. See, e.g. Madden v. Gober, 125 F.3d 1477, 1481 (1997) (the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration a veteran's statements, it may consider whether self-interest may be a factor in making such statements). Continuity of symptomatology has not here been established, either through the competent evidence or through the Veteran's statements. Service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's bilateral hearing loss or tinnitus to active duty. To that end, the Board initially considers a March 2012 VA examination. Following a review of the claims file, interview of the Veteran, and audiometric testing, the examiner opined that the Veteran's bilateral hearing loss and tinnitus were not at least as likely as not caused by or a result of an event in military service. The VA examiner reflected that the separation examination reflected a normal whisper test. He additionally noted that there was no mention of tinnitus in the military medical records. The VA examiner indicated that the Veteran denied recreational noise exposure until his history from 2007 was pointed out. The VA examiner pointed out that in 2007 the Veteran attributed his hearing loss and tinnitus to a firing range accident in 2007. However, he noted that the Veteran now indicates that only part of the hearing loss and tinnitus were a result of recreational noise exposure from shooting and the majority of his hearing loss and tinnitus resulted from military service during training. The March 2012 VA examiner noted that since the Veteran's military MOS was clerk, since the Veteran presented with conflicting histories, since the separation audio showed normal hearing, and since there is no mention of tinnitus in the military medical records, it is less than likely that the hearing loss or tinnitus are a result of military service. The Veteran submitted a March 2012 private treatment record which diagnosed the Veteran with sensorineural hearing loss and tinnitus. It was noted that the onset for both was May 3, 2007. The private treating physician noted that the Veteran "should get benefits from the VA due to his noise induced hearing loss." Rationale was not provided. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). As such, the probative value of this March 2012 private opinion is limited. In January 2013, an addendum VA medical opinion was obtained. After reviewing the Veteran's claims file, it was the reviewing physician's medical opinion that the Veteran's claimed bilateral hearing loss and hearing loss induced intermittent tinnitus were less likely than not incurred in or caused by or aggravated by his claimed in-service injury, event or illness. The January 2013 VA examiner indicated that he concurred with the March 2012 VA examiner who provided clear opinions and a thorough rationale, which he noted was not countered by the private March 2012 opinion. He noted that while the whisper test is less than ideal to base assessing the Veteran's hearing as normal when he left the service, there is nothing in his history of noise exposure while serving during the Korean conflict as a clerk to suggest that the Veteran's current hearing loss and tinnitus is related to or aggravated by service. In this case, the Board finds that the statements provided by the private physician are outweighed by the conclusions of the VA examiner in March 2012 and reviewer in January 2013. As an initial matter, the March 2012 private examiner did not provide rationale for his conclusion. The March 2012 VA examiner was able to examine the Veteran personally and review the Veteran's medical records. The January 2013 VA reviewing physician was additionally able to review the Veteran's medical records. Additionally, rationale for their determinations was provided. The Board determines that the private treating physician's conclusions are outweighed by the observations of the VA examiner and reviewing physician. The Board has also considered the Veteran's statements asserting a nexus between his currently-diagnosed bilateral hearing loss and tinnitus, and active duty service. Although the Veteran is competent to report that he has hearing problems and tinnitus, he is not competent to render a medical opinion as to the etiology of these disabilities. While lay persons are competent to provide opinions on some issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, determining etiology of sensorineural hearing loss and tinnitus falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Moreover, the Board finds that the March 2012 and January 2013 VA opinions are the most probative evidence of record. This is because together they reviewed his records, considered his reported history, and examined the Veteran. As such, the preponderance of the evidence weighs against a finding that the Veteran's bilateral hearing loss or tinnitus developed in service or is due to any event or injury in service. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claims for service connection and there is no doubt to be otherwise resolved. The appeals are denied. ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs