Citation Nr: 1310462	
Decision Date: 03/29/13    Archive Date: 04/09/13

DOCKET NO.  07-33 882	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for an ear disability, to include hearing loss and ear pain.  

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service connection for a sleep disorder, to include as secondary to an ear disability.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

M. Carsten, Counsel


INTRODUCTION

The Veteran had active service from April 1984 to April 1992.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

In October 2010, the Veteran testified at a Travel Board hearing in front of the undersigned.  The transcript of the hearing is associated with the claims folder.  

In March 2011, the Board remanded the listed issues for additional development.  There was substantial compliance with the remand directives.  Dyment v. West, 13 Vet. App. 141 (1999).  

In July 2012, a supplemental statement of the case was issued.  In August 2012, the Veteran's representative waived the 30-day waiting period.  They further stated that if additional evidence was submitted, they waived the Veteran's right to have the case sent back to the Agency of Original Jurisdiction and requested that the Board consider the new evidence and proceed with the appeal.  See 38 C.F.R. § 20.1304 (2012).  Additional evidence was received by the Board in August and October 2012.  

The Virtual VA eFolder has been reviewed.  





FINDINGS OF FACT

1.  In-service noise exposure is established; however, evidence of record does not show a current hearing loss disability for VA purposes.

2.  The preponderance of the evidence is against finding that the Veteran has a disability manifested by ear pain that is related to active military service or events therein.

3.  Resolving reasonable doubt in the Veteran's favor, currently diagnosed tinnitus is related to in-service noise exposure.

4.  The preponderance of the evidence is against finding that the Veteran has a sleep disorder that is related to active military service or is proximately due to or aggravated by service-connected disability.


CONCLUSIONS OF LAW

1.  An ear disability, to include hearing loss and ear pain, was not incurred or aggravated during active military service, nor may it be presumed to have been incurred therein.  38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2012).  

2.  Tinnitus was incurred during active service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012).  

3.  A sleeping disorder was not incurred or aggravated during active military service and is not secondary to service-connected disability.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2012).  




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

In light of the favorable decision to grant service connection for tinnitus, a detailed explanation of how VA complied with the Act is unnecessary as to this issue.  

With regard to the remaining issues decided herein, the requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met.  There is no issue as to providing an appropriate application form or completeness of the application.  By correspondence dated in April 2005 and January 2006, VA notified the Veteran of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain.  In March 2006, VA provided notice of how disability ratings and effective dates are determined.  The referenced notice letters were provided prior to the rating decision in question.  The appeal was also readjudicated in the July 2012 supplemental statement of the case.  

VA has also satisfied its duty to assist.  The claims folder contains service treatment records, VA medical records, and available private medical records.  The Board notes that a May 2012 request for records from Dr. B.Y. was returned to sender.  These records, however, are already contained in the claims folder.  The Veteran also submitted an authorization for release of records from Dr. P.B.  VA requested these records in May 2012 but a response was not received.  In June 2012, the Veteran was advised that these records had not been obtained.  The Board notes that the physician is apparently retired and the Veteran has not provided further information as to where these records might currently be located.  A review of the claims folder shows that it already contains some records from this physician, to include a medical opinion statement.  The Veteran also submitted an authorization for release of records from Dr. J.C. showing treatment in July 2012.  The Veteran subsequently submitted these records.  

The Veteran was provided VA audiology examinations in December 2007 and March 2011, with addendum in April 2011.  On review, the examinations provide relevant findings.  The Board acknowledges that a medical opinion was not provided regarding claimed hearing loss.  As discussed below, however, the examinations did not show a hearing loss disability for VA purposes and as such, an etiology opinion is not needed.  The examinations are considered adequate.  

The Board acknowledges that the Veteran was not provided a VA examination to determine the nature and etiology of his claimed sleep disorder.  On review and as discussed below, the record does not show the Veteran has a currently diagnosed sleep disorder.  The Board acknowledges the Veteran's contentions that tinnitus interferes with his sleep, but under the circumstances of this case, does not find a VA examination necessary.  See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006).

On review, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.  38 C.F.R. § 3.159.

Analysis

In May 2006, the RO in pertinent part denied entitlement to service connection for bilateral hearing loss, tinnitus, and a sleep disorder.  The Veteran disagreed with the decision and subsequently perfected this appeal.  

In March 2011, the Board recharacterized the bilateral hearing loss issue to encompass the Veteran's complaints of ear pain.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009).  

In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  

With chronic disease shown as such in service 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).  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.  Id.  

The Board observes that the regulation set forth at 38 C.F.R. § 3.303(b) benefits only chronic disease as listed in 38 U.S.C.A. § 1101; 38 C.F.R. § 3.309(a).  See 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, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

In order to establish service connection or service-connected aggravation for a present disability, the Veteran 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). 

Without a currently diagnosed disability, service connection may not be granted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The requirement for a current disability is satisfied when a claimant has a disability either at the time a claim for VA compensation is filed, or at any time during the pendency of that claim.  A claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim.  McLain v. Nicholson, 21 Vet. App. 319, 321 (2007).

For VA purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. 

Regardless of in-service test results, the Veteran may establish entitlement to service connection for a current hearing disability by submitting competent evidence that the current disability is causally related to service.  Hensley v. Brown, 5 Vet. App. 155 (1993).  The United States Court of Appeals for Veterans Claims (Court) has cited with approval a medical text, which states that the threshold for normal hearing is zero decibels to 20 decibels and higher threshold levels indicate some degree of hearing loss.  Id. at 157. 

Service connection will be presumed for certain chronic diseases, including other organic disease of the nervous system, such as a sensorineural hearing loss, if manifest to a compensable degree within one year after discharge from active duty.  38 C.F.R. §§ 3.307, 3.309(a). 

Service connection may also be granted for a disability that is proximately due to or the result of an established service-connected disease or injury.  38 C.F.R. § 3.310.  This includes disability made chronically worse by service-connected disability.  Allen v. Brown, 7 Vet. App. 439 (1995). 

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.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

Ear disability, to include hearing loss and ear pain

The Veteran contends that he currently has hearing loss and ear pain related to in-service noise exposure.  At the hearing, the Veteran reported that he was a catapult and arresting gear operator on the flight deck of an aircraft carrier.  He then worked at a naval air facility where the island was used as a bombing range.  He reported on and off ear pain and that his ear is sensitive.  He has been issued medication drops for the pain.  

The Veteran is competent to describe his duties during military service and accompanying loud noises.  See Charles v. Principi, 16 Vet. App. 370 (2002) (appellant competent to testify regarding symptoms capable of lay observation).

Service records show that the Veteran served aboard an aircraft carrier and his primary specialty was aviation boatswain mate (launching and recovery) (ABE).  He had over 3 years of sea service.  His reports are consistent with his military duties and the Board concedes in-service noise exposure.  

Notwithstanding evidence of acoustic trauma, the question remains whether the Veteran has a current disability and if so, whether such is related to military service.  

Service treatment records show that the Veteran was treated for otitis media (catarrhal) in October 1984.  The Veteran underwent numerous audiograms during his military service and the Board acknowledges the January 1988 report of medical history, which notes mild high frequency hearing loss bilaterally, not considered disabling.  Notwithstanding, a review of the various audiograms, to include that conducted in connection with the January 1988 examination, does not show that the criteria for a hearing loss disability pursuant to 38 C.F.R. § 3.385 are met.  

On report of medical history completed at separation in March 1992, the Veteran reported hearing loss.  The examiner noted neurosensory hearing loss, secondary to working on the ship according to the patient.  On physical examination, however, the Veteran's ears and drums were reported as normal.  Pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
5
0
10
LEFT
20
15
10
10
15

Puretone thresholds at 6000 Hertz were 20 on the right and 30 on the left.  

Records from Dr. P.B. show that the Veteran presented in August 2007 with an intermittent history of right ear pain, brief and radiating to the temporalis muscle and digastrics muscles, worsened on the anterior wall when using Q-tips.  He reported a history of military noise exposure.  He denied other otolayrngic symptoms.  On physical examination, there was a lack of wax bilaterally in the canals with pain in the right temporomandibular joint (TMJ) with palpation reproducing the pain he was complaining of.  The examination was otherwise normal.  Review of audiogram showed essentially normal hearing.  Impression included TMJ pain. 

On VA examination in December 2007, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
5
10
10
LEFT
10
10
10
5
15

Speech recognition pursuant to the Maryland CNC was 96 percent in both ears.  Diagnosis was hearing within normal limits bilaterally.  

The examiner indicated that hearing was within normal limits throughout all the service record and that no significant threshold shifts were noted during service.  There was a notation in the records that the Veteran felt he had hearing loss, but there was no documentation to substantiate its presence.  The examiner indicated that no opinion was required regarding hearing impairment as hearing was fully within normal limits for both ears.   

A July 2008 statement from Dr. P.B. indicates that it was his opinion that it is as likely as not that the Veteran's hearing loss was the result of acoustic trauma received while on active duty.

An October 2010 statement from the Veteran's spouse indicates that for years he has had constant ear pain and ringing/buzzing in both of his ears.  

The Veteran most recently underwent a VA examination in March 2011.  He again reported in-service noise exposure, but denied occupational and recreational noise exposure.  Pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
10
5
15
LEFT
10
5
5
5
15

Speech recognition pursuant to the Maryland CNC was 96 percent in the right ear and 100 percent in the left ear.  The examiner noted that hearing was within normal limits for rating purposes.  She further noted that medical follow-up was not needed for an ear or hearing problem.  

In April 2011, following review of the claims folder, the examiner provided an addendum.  She stated that while an opinion was requested, hearing thresholds did not meet the criteria for disability under VA regulations.  

Review of VA medical records shows complaints of bilateral ear pain and the use of Auralgan drops.  

A statement from a private audiologist, Dr. J.C., indicates that the Veteran was seen for audiometric assessment in July 2012.  Review of the corresponding audiogram does not show hearing loss disability for VA purposes and otoscopic examination was reported as normal.  Dr. J.C. stated that the results of the evaluation revealed normal hearing in both ears.  Maryland CNC speech discrimination scores were 96 percent in both ears.  The audiologist discussed the Veteran's noise exposure history.  She also reviewed the Veteran's military service records and found evidence of normal hearing upon entrance into service and a mild high frequency hearing loss in the left ear at 6000 Hertz at separation.  Based on her examination, review of records, and interview with the Veteran, she felt it was at least as likely as not that his hearing loss was caused by or contributed to by noise exposure experienced during military service.  

The Board acknowledges the evidence of in-service noise exposure as well as the positive etiology opinions of record.  While there may be evidence of hearing loss at the higher frequencies, the evidence does not show a hearing loss disability for VA purposes in either ear.  Accordingly, service connection cannot be established at the present time as there is no disability under 38 C.F.R. § 3.385. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The Veteran may reapply in the future should his hearing loss get worse.  

The Board acknowledges the VA records showing ear pain as well as the private record which notes a diagnosis of TMJ pain.  Additionally, the Board recognizes the Veteran's testimony and his spouse's statement regarding constant ear pain for years.  The Veteran is competent to report ear pain and his spouse is competent to report her observations of such.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).  

Notwithstanding, pain alone is generally not a disability.  See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) ("pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted.").  On review, a chronic condition manifested by ear pain was not shown during service and the preponderance of the evidence is against finding that the Veteran has a current disability manifested by ear pain that is related to active military service or events therein.  

With regard to the Veteran's contentions that he currently has a bilateral ear disability that is related to service, the Board observes that he has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis of hearing loss for VA purposes or other ear disorder, and nothing in the record demonstrates that he has any medical expertise in evaluating and determining causal connections for same.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012).  The Veteran's contentions do not outweigh the medical evidence of record.  

The doctrine of reasonable doubt is not for application.  See 38 C.F.R. § 3.102.  

Tinnitus

The Veteran contends that he has tinnitus related to in-service noise exposure.  As discussed, the Board concedes acoustic trauma.

At the hearing, the Veteran testified that he had problems with his ears ringing and buzzing during service and that tinnitus has continued since that time.  The Veteran is competent to report these symptoms.  See Charles.

Service treatment records do not show complaints of or a diagnosis of tinnitus.  The Veteran's ears were reported as normal on clinical evaluation at separation in March 1992.  

An August 2007 record from Dr. P.B. documents the Veteran's history of tinnitus for 10 years.  Impression was tinnitus.  

On VA examination in December 2007, the Veteran reported constant bilateral ringing tinnitus.  He was unable to relate any specific incident of onset other than it has been present for many years.  Diagnosis was recurrent tinnitus, bilaterally.  The examiner provided the following opinion:

As no notation of tinnitus was found in the service medical records, the [V]eteran's hearing remains within normal limits, and no threshold shifts were noted during military service, it is the opinion of this examiner that the [V]eteran's tinnitus is less likely as not the result of any military noise exposure.  

A July 2008 statement from Dr. P.B. indicates that following a review of the Veteran's examination and military history, it was his opinion that it was as likely as not that his tinnitus was the result of active duty acoustic trauma.  

On VA examination in March 2011, the Veteran reported tinnitus with onset in 1988.  In April 2011, following review of the claims folder, the examiner opined "that tinnitus is less likely as not related to military service, as thresholds are within normal limits and no notes of tinnitus were found."  

A July 2012 statement from Dr. J.C. notes that the Veteran experiences chronic subjective tinnitus which is commonly associated with hearing loss.  She further stated that it may be present when hearing thresholds are normal, may develop at any time and can be aggravated by noise exposure.  The Veteran reported that tinnitus began during service.  Following examination, review of service records, and interview with the Veteran, she felt it was at least as likely as not that chronic and constant tinnitus was caused by or contributed to by in-service noise exposure.

As discussed above, the claims folder contains both positive and negative evidence regarding whether there is a nexus between currently diagnosed tinnitus and in-service noise exposure.  On review, the Board finds no basis to favor one medical opinion over another. 

Under the benefit-of-the-doubt rule, for the appellant to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of positive and negative evidence.  In other words, the preponderance of the evidence must be against the claim for the benefit to be denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Given the evidence set forth above, such a conclusion cannot be made in this case.  Thus, resolving reasonable doubt in the Veteran's favor, service connection for tinnitus is warranted.  See 38 C.F.R. § 3.102.

Sleep disorder

In March 2005, the Veteran requested service connection for a sleep disorder secondary to a respiratory disorder.  In March 2006, the RO denied service connection for a sleep disorder.  The Veteran disagreed and subsequently perfected this appeal.  

At the hearing, the Veteran testified that his ear pain is constant when he goes to sleep and he can't turn.  The pressure he applies to his ear and the pillow gives him more pain so he has to sleep facing up instead of sideways.  

Review of service treatment records does not show complaints of or a diagnosed sleep disorder.  On report of medical history completed at separation in March 1992, the Veteran denied frequent trouble sleeping.  

On his VA Form 9 dated in October 2007, the Veteran reported chronic leg cramps when asleep and tinnitus.  

On VA examination in December 2007, the Veteran reported constant bilateral ringing tinnitus that often interferes with his sleep.  

An October 2010 statement from the Veteran's spouse indicates that the Veteran has constant ear pain and ringing/buzzing in both ears which affects his sleeping time.  She reported that they have to place noise distractions in their bedroom, such as fans, radios, and an air purifier.  

At the March 2011 VA examination, the Veteran reported that tinnitus makes it difficult to sleep.  

Despite the Veteran's complaints, a review of the record does not show evidence of a diagnosed sleep disorder.  The Board has considered the contentions of the Veteran and his spouse.  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, whether the Veteran has a diagnosed sleep disorder and whether it is related to service or service-connected disability, 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)."

In summary, the preponderance of the evidence is against finding that the Veteran currently has a sleep disorder that is related to military service or proximately due to or aggravated by service-connected disability.  The doctrine of reasonable doubt is not for application.  See 38 C.F.R. § 3.102.  


ORDER

Service connection for an ear disability, to include hearing loss and ear pain, is denied.

Service connection for tinnitus is granted.  

Service connection for a sleep disorder, to include as secondary to service-connected ear disability is denied.  



______________________________________________
HOLLY SEESEL
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs