Citation Nr: 1310124 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 09-46 257 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services ATTORNEY FOR THE BOARD R.N. Poulson, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. (The issue of entitlement to service connection for tinnitus is addressed in the remand that follows the decision below.) FINDING OF FACT The evidence does not establish a current hearing impairment as defined by VA. CONCLUSION OF LAW The Veteran does not have hearing loss that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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). The 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. VCAA notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). A notice letter dated in March 2009 complied with VA's duty to notify the Veteran with regards to the service connection issue addressed herein. Specifically, this correspondence apprised the Veteran of what the evidence must show to establish entitlement to the benefit, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. The letter also notified the Veteran of the criteria for assigning a disability rating and an effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Moreover, the Board finds that VA has complied with its duty to assist the Veteran in the development of his claim. VA has obtained service treatment records (STRs), private treatment records, and report of a June 2009 VA examination. He has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration (SSA). See 38 C.F.R. § 3.159 (c) (2). The Veteran elected to not have a hearing in his case. As noted, the Veteran was afforded a VA examination. The examination was adequate upon which to base a determination as it fully addressed the Veteran's symptoms and the medical evidence of record in assessing the Veteran's status. See 38 C.F.R. § 3.326 (2012); Barr v. Nicholson, 21 Vet. App. 303, 311 (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). There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). II. Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for any condition listed in 38 C.F.R. § 3.303(b). Any condition not encompassed by Section 3.303(b) requires a medical nexus. Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. Sensorineural hearing loss (organic disease of the nervous system) is a chronic disease for purposes of presumptive service connection. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a); Walker, supra. The applicable presumptive period is one year following separation from service. 38 C.F.R. § 3.307(a)(3). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran claims that he was exposed to loud noises in service while serving as a jet engine mechanic. The DD 214 confirms that his military occupational specialty (MOS) during service was that of jet aircraft mechanic. There is no indication that he was awarded any medals or decorations evincing combat duty. VA Fast Letter 10-35 (September 2010) includes a Duty MOS Noise Exposure Listing, which establishes that aircraft maintenance listings are presumed to be exposed to high noise exposure. Accordingly, in-service noise exposure is conceded and the question is one of nexus. For VA purposes, impaired hearing will not be considered to be a disability unless the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 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. Upon a June 1967 enlistment examination, the Veteran underwent audiological testing. Service department audiometric readings prior to October 31, 1967 must be converted from American Standards Association (ASA) units to International Standard Organization (ISO) units. As this evaluation was conducted prior to October 1967, the ASA units have been converted to ISO units as shown below. HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 10 -- -5 LEFT 20 10 10 -- 5 An August 1969 audiogram shows that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 20 20 0 LEFT 25 25 30 20 15 A March 1970 audiogram shows that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 25 25 25 LEFT 20 30 30 25 25 An October 1971 audiogram shows that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 20 25 10 LEFT 25 25 35 30 20 The Veteran underwent audiometric testing again two days later. The results as shown by a graph appear to reflect that pure tone averages were somewhat better. The clinician noted that the Veteran "probably" had chronic otitis media secondary to allergies. It was also noted that his hearing was within normal limits "after spray of N.S. nose drops 1% and popping ears." A December 1971 discharge examination included an audiogram with the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 20 20 LEFT 20 25 25 25 15 The Veteran received a normal clinical evaluation of his ears during the June 1967 and December 1971 examinations. Post-service private treatment records show that in December 2003, the Veteran's primary care provider, Dr. LWL, referred him to an ENT doctor "for some slight hearing loss." A January 2004 correspondence from Dr. RPC, an ENT, notes that the Veteran's history included "possible hearing loss with past history of noise exposure." A physical examination of the ears was normal. An audiogram was performed, but it depicts the pure tone thresholds on a graph and not interpreted in decibels for each frequency depicted in the audiogram. In any event, the pure tone results are better than those of the VA examination outlined below. Speech recognition scores were 96 percent in the left ear and 100 percent in the right ear. It appears that a speech recognition test other than the Maryland CNC was administered, and hence those results cannot be relied upon for VA rating purposes. The diagnosis was hearing within normal limits in both ears through 4 kHz. In March 2008, Dr. LWL determined that there was no significant hearing loss based on a "hearing test" that was done in his office. An April 2009 correspondence from Dr. RPC indicates that the Veteran thought he was developing "further hearing loss." He reportedly was told at discharge that he had a 10 percent hearing loss. An audiogram was performed, but it depicts the pure tone thresholds on a graph and not interpreted in decibels for each frequency depicted in the audiogram. In any event, the pure tone results are similar to those of the VA examination outlined below. Speech recognition scores were 96 percent in both ears. Again, a speech recognition test other than the Maryland CNC was administered. The diagnosis was hearing within normal limits in the right ear and mild sensorineural hearing loss at 2 kHz in the left ear. In June 2009, the Veteran underwent a VA audiological examination. He denied any occupational or recreational noise exposure. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 15 20 10 LEFT 10 25 25 30 20 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 98 percent in the left ear. Additional testing suggested the presence of outer hair cell dysfunction. The diagnosis was clinically normal hearing in the right ear and hearing loss that was not disabling pursuant to Section 3.385 in the left ear. The examiner noted that the Veteran had normal hearing at separation. Although the Veteran complains of exposure to acoustic trauma in service, a hearing loss disability as defined by VA is not shown. Objective test results conducted both during and after service demonstrate that the Veteran does not have hearing impairment for VA purposes. Thus, there is no indication in the record that the Veteran has met the requirements of 38 C.F.R. § 3.385. Service connection cannot be granted if there is no present disability. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In the absence of proof of a present disability, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board acknowledges the Veteran's representative's contention that the Veteran experienced threshold shifts in both ears during service. Nevertheless, as the Veteran does not have a current hearing loss disability for VA purposes, the issue of whether he had an acuity threshold shift during service is irrelevant. The Veteran is competent to state that he has trouble hearing out of his ears. See Charles v. Principi, 16 Vet. App. 370 (2002). However, as a layperson, lacking in medical training and expertise, the Veteran cannot provide a competent opinion on a matter as complex as an audiogram and his views are of no probative value. Even if his opinion was entitled to be accorded some probative value, it is far outweighed by the audiological test evaluations of record, none of which shows a hearing loss disability in either ear for VA purposes. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The preponderance of the evidence is against the service connection claim for a hearing loss ; there is no doubt to be resolved, and service connection is not warranted. Gilbert, 1 Vet. App. at 57-58. ORDER Entitlement to service connection for hearing loss is denied. REMAND Private treatment records dated in July 2004, January 2005, January 2006, and March 2007 show that the Veteran had tinnitus. A March 2008 private treatment record shows that the Veteran complained of "an occasional sensation" in the left ear. In June 2009, the Veteran underwent a VA audiological examination. He complained of intermittent tinnitus. The report indicates that the Veteran gave an onset date for tinnitus "for the past 10 years." The examiner opined that the tinnitus was "as likely as not" associated with the Veteran's hearing loss. The Veteran essentially contends that the June 2009 VA examination is inadequate because the audiologist relied on an incorrect onset date for the tinnitus. Specifically, the Veteran contends that he had a "ringing and/or buzzing sound in both ears at least a couple of years" before separation from military service. He claims that the tinnitus "got worse about ten years ago," and that he "never really knew what it was" until he saw an ENT doctor. See July 2009 Notice of Disagreement. However, in the November 2009 VA Form 9, the Veteran stated that the tinnitus began during service, but that he did not report it because he thought it was "normal" and "temporary." He also stated that it became worse whenever he was near operating jet engines. An opinion based on incorrect facts has little probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). Because it appears that the VA examiner did not fully account for the Veteran's own history of tinnitus since military service, on remand another opinion is required to determine the etiology of any current tinnitus that the Veteran may have. Accordingly, the case is REMANDED for the following action: 1. Refer the claims file to the examiner who conducted the June 2009 VA examination. The claims file must be made available to the examiner for review. The examiner is requested to review the Veteran's statements regarding the onset of tinnitus during military service, and offer an opinion as to whether it is at least as likely as not, i.e., 50 percent probability or greater, that any currently diagnosed tinnitus began during service or is otherwise related to military service. In answering this question, the examiner should address the Veteran's competent reports of ringing and/or buzzing in his ears since service, to include his July 2009 and November 2009 lay statements. The examiner should set forth the medical reasons for accepting or rejecting the Veteran's statements that he had tinnitus during military service and has had it since. A full and complete rationale for all opinions expressed must be provided. If the examiner determines that she cannot provide an opinion on the issue at hand without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The agency of original jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) (If the June 2009 examiner is unavailable, the file should be referred to another clinician with sufficient expertise to address the questions set out above.) 2. Thereafter, undertake any additional development deemed appropriate and re-adjudicate the tinnitus claim. If the benefit sought remains denied, issue a supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review. No action is required of the appellant unless he is notified. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs