Citation Nr: 1310648 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 10-24 584 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active military service from January 1960 to October 1970. This matter comes to the Board of Veterans' Appeals (Board) from May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, which, in pertinent part, denied service connection for bilateral hearing loss and tinnitus. The Board remanded this case for additional development in August 2011 so that the Veteran could be provided with a VA examination to address the etiology of the Veteran's claimed hearing loss and tinnitus disabilities. An examination addressing all the pertinent information of record was provided in September 2011. Therefore, there was substantial compliance with the directives of the Board's remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The case is now ready for appellate review. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. The competent and probative evidence of record shows that the Veteran's hearing loss is not related to his active duty service, nor that sensorineural hearing loss was manifested to a compensable degree within one year following service discharge. 2. The competent and probative evidence of record shows that the Veteran's tinnitus is not related to his active duty service. CONCLUSIONS OF LAW 1. Hearing loss was not incurred in, or aggravated by, active military service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1133, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 2. Tinnitus was not incurred in, or aggravated by, active military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his case, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Prinicipi, 353 F.3d 1369 (Fed. Cir. 2004). An RO letter dated in March 2009 informed the Veteran of all five elements required by 38 C.F.R. § 3.159(b), as stated above. Regarding the duty to assist, VA has obtained the Veteran's service treatment records and post-service records. The evidence of record contains the Veteran's service treatment records and post-service treatment records. There is otherwise no indication of relevant, outstanding records which would support the Veteran's claims. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3). A letter from the Social Security Administration (SSA) dated in September 1996 notes that the Veteran had filed for disability annuity with the Railroad Retirement Board, which was also considered an "application" for disability under the Social Security Act. SSA thus determined that the Veteran had met the requirements of the law and had established disability starting in February 1995. On the bottom of the letter is a handwritten note that the Veteran was not receiving SSA disability; the handwritten date is January 2010. A February 2002 VA treatment record also notes that the Veteran had been forced to retire from the railroad in 1995 due to heart problems. There are no records in the claims file pertinent to the Veteran's reported award of SSA disability benefits in 1996. In Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009), however, the Federal Circuit acknowledged that VA's duty to assist was limited to obtaining relevant SSA records. The Federal Circuit rejected the appellant's argument in Golz that SSA records are always relevant and VA always is required to obtain them. The Federal Circuit then defined relevant records as "those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the Veteran's claim." Id. at 1321. The Federal Circuit also stated, "Not all medical records for a Veteran will have a reasonable possibility of aiding in the substantiation of a VA disability claim." Id. The Federal Circuit concluded in Golz, "There must be specific reason to believe these records may give rise to pertinent information to conclude that they are relevant." Id. at 1323. Based on the fact that the Veteran reportedly retired from the railroad in 1995 due to his heart disability and that SSA used the Veteran's claim for retirement annuity disability from the railroad as a claim for SSA benefits, it is reasonable to deduce that any SSA benefits awarded in 1996 were due to the Veteran's heart disorder, and thus, not relevant to the Veteran's service connection claims for hearing loss and tinnitus. Therefore, VA has no duty to obtain any outstanding SSA records. The Veteran was afforded a VA audiological examination in order to determine whether the Veteran's current hearing loss and tinnitus are related to service in September 2011. The examiner considered all the relevant evidence and provided a reasoned analysis for the opinions. The examination was adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). Neither the Veteran, nor his representative have identified any outstanding evidence pertinent to the claims on appeal. The medical evidence of record is now sufficient for the Board to make a decision in this case. The duty to assist has therefore been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Service connection The Veteran contends that he should be service connected for his hearing loss and tinnitus because he was subjected to acoustic trauma while serving aboard the USS Hoel (DDG-13) during active duty service in the Navy. Specifically the Veteran was subjected to acoustic trauma during combat situations and an explosion aboard the USS Hoel (DDG-13). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The U.S. Court of Appeals for the Federal Circuit has recently held that for purposes of 3.303(b), where the Veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, the Veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, --- F.3d ----, No. 2011-7184, 2013 WL 628429 *5 (Fed. Cir. February 21, 2013), affirming Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). [emphasis added]. For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing inservice incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Sensorineural hearing loss is an organic disease of the nervous system, which is listed as a chronic condition under 38 C.F.R. § 3.303(a). Therefore, service connection for sensorineural hearing loss can be demonstrated by showing a continuity of symptomatology since service. In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including sensorineural hearing loss (an organic disease of the nervous system), are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). Notably, other types of hearing loss, other than sensorineural, and tinnitus are not listed as chronic conditions; therefore, the only avenues for service connection for those conditions are either through direct incurrence or aggravation under 38 C.F.R. § 3.303(a); or if the evidence shows that as post-service diseases, they are related to service. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. at 511. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). 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. The Veteran's service treatment records, specifically the January 1969 entrance examination for active duty and the October 1970 exit examination, provide an audiological evaluation of 15/15 on the whispered voice test. The Board notes, however, that the report of medical history that accompanied the January 1969 active duty entrance examination noted ear trouble. The Veteran entered the Navy Reserve in November 1967. The November 1967 entrance examination also noted a hearing evaluation of 15/15 on the whispered voice test. However, the accompanying report of medical history did not contain a complaint regarding ear problems. Although there is a note of ear trouble on the active duty entrance examination as there is no evidence of hearing loss or tinnitus at that time, the Veteran is considered sound at entry into service, with respect to the hearing loss and tinnitus. Additionally, while there is no evidence that the Veteran had hearing loss while on active duty, whispered and spoken voice hearing tests are not necessarily sufficiently sensitive to rule out the presence of a high frequency impairment. See Godfrey v. Brown, 8 Vet. App.113 (1995) (the Board conceded that the whispered voice test "cannot detect hearing loss with anywhere near the precision of an audiogram"). Moreover, the Board notes that absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). As noted above, in August 2011, the Board determined that the low threshold had been met for obtaining a medical examination and opinion addressing the etiology of the Veteran's hearing loss and tinnitus, pursuant to 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran underwent a VA examination in September 2011. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 25 35 45 LEFT 15 15 30 55 45 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 88 percent in the left ear. The diagnosis was bilateral sensorineural hearing loss. A tinnitus diagnosis was given by history. The examiner noted that the claims file included documentation that in November 1969 the Veteran was exposed to an explosion when a projectile exploded in the forward gun mount of the USS Hoel. His service treatment records were negative for any type of medical treatment on or around that timeframe. The examiner noted that the only hearing-related information in the service treatment records were whisper tests, which were no longer considered valid hearing screenings. Tinnitus complaints were not documented in the service treatment records. It was noted that the Veteran served in combat for approximately 8 months during the Vietnam War. He reported exposure to constant gun mount explosions, in addition to the explosion that occurred in November 1969. In civilian life, the Veteran also reported working for the railroad, where he wore hearing protection and was involved in the hearing conservation program. In addition he indicated exposure to lawn maintenance equipment noise but stated that he wore hearing protection for the past 5 to 10 years. He indicated that his hearing loss and tinnitus had started approximately 9 to 10 years ago; and he described the tinnitus as periodic. The examiner determined that it was not at least as likely as not that the Veteran's hearing loss and tinnitus were caused by or a result of an event in military service. The rationale for the opinions was that the hearing loss and tinnitus complaints were not documented in the service records and the Veteran reported the onset of hearing loss and tinnitus approximately 9 to 10 years ago. Based on the foregoing, the Board finds that the preponderance of the evidence shows that the Veteran's claimed hearing loss and tinnitus are not related to any event in service. In making this determination, the Board finds it significant that the only evidence of record indicating a possible nexus between any current hearing loss and tinnitus and his military service are the Veteran's assertions. The Board acknowledges that the Veteran is competent to report that he has continued to experience hearing loss and ringing in his ears since his service. See Barr, 21 Vet. App. at 307-08 (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau, 492 F.3d 1372; Davidson, 581 F.3d 1313. The Veteran is also competent to report that he was exposed to acoustic trauma in service. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge). Competent testimony is limited to that which the witness has actually observed and is within the realm of his personal knowledge; such knowledge comes to a witness through use of his senses-that which is heard, felt, seen, smelled, or tasted. Layno, 6 Vet. App. 465. It is within the Veteran's realm of personal knowledge whether he had exposure to loud noises in service, and has continued to experience hearing loss and ringing in his ears since that time. The Veteran served in the U.S. Navy during the Vietnam War and was reportedly exposed to an explosion when a projectile exploded in the forward gun mount of the USS Hoel. Thus it is reasonable to deduce that he would have been exposed to noise. However, the Board finds that the Veteran's allegations of the onset of his hearing loss and tinnitus are of questionable credibility. For example, even though the Veteran has asserted that his hearing loss and tinnitus are related to his military service, on examination in September 2011, he indicated that his hearing loss and tinnitus had only started 9 to 10 years prior; so at the earliest in 2001. The Board also finds it significant that the Veteran worked as a welder for the Rail Road from 1968 to 1995 and sought treatment for other disabilities including heart problems but never reported hearing loss and tinnitus until his VA examination in September 2011. See Kahana, 24 Vet. App. at 440 ("[T]he Board may use silence in the [medical records] as contradictory evidence only if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the [medical records].") citing to Fed.R.Evid. 803(7) (the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded)). The Board finds that medical records contradict the Veteran's allegations during the appeal. As a result, the statement of chronic hearing loss and tinnitus since service discharge is accorded significantly lessened probative value. The Veteran's opinions that hearing loss and tinnitus are due to in-service noise exposure are insufficient to provide the requisite nexus between an in-service event or injury and any current disability because, as a lay person, he is not competent to establish a medical etiology merely by his own assertions; such matters require medical expertise. See 38 C.F.R. § 3.159(a)(1); Duenas v. Principi, 18 Vet. App. 512, 520 (2004); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) (holding that a layperson is generally not capable of providing opinions on matters requiring medical knowledge, such as the condition causing or aggravating the symptoms); see also Bostain v. West, 11 Vet. App. 124, 127 (1998); Stadin v. Brown, 8 Vet. App. 280, 284 (1995); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). As such, his statements regarding the etiology of any hearing loss and tinnitus disabilities are merely speculation as to a possible cause as he is not medically qualified to prove a matter requiring medical expertise, such as an opinion as to medical causation. To this extent, the medical opinion described below outweighs any opinion provided by the Veteran. The Board also finds it significant that the VA examiner in September 2011 determined that it was not at least as likely as not that the Veteran's hearing loss and tinnitus were related to his military service because there were no complaints documented in the service records and the Veteran reported onset 9 to 10 years ago. The examiner acknowledged the Veteran's documented exposure to acoustic trauma in service and the Veteran's lay statements regarding his exposure to acoustic trauma; the examiner also indicated a review of all the pertinent records, which essentially included only the service treatment records, as there is no other medical record pertinent to the Veteran's hearing loss and tinnitus. Thus, the physician adequately took into account the Veteran's lay statements that the Board had deemed both competent and credible regarding the claimed in-service noise exposure. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); McClendon, 20 Vet. App. at 81. The VA physician's opinion was fully informed, fully articulated, and included a reasoned analysis. Thus, the physician's opinion is entitled to a high probative value. See Nieves-Rodriguez, 22 Vet. App. at 303-04. This is not an example of the absence of medical evidence, but rather the presence of medical evidence that is absent for complaint of the Veteran's claimed conditions. See Kahana, supra. In addition while continuous symptoms, rather than continuous treatment, is the relevant issue in determining the merits of a service connection claim, the Veteran is not competent to relate his complaints hearing problems to an underlying cause of the symptoms, such as a hearing loss disability and tinnitus. In fact, the medical evidence notes that the first complaints of hearing loss and tinnitus are not until 2001. Therefore, in this instance, the lack of documented complaint of hearing loss and tinnitus until 2001 is an acceptable premise to be relied on by the VA physician in determining that the Veteran's hearing loss and tinnitus are not related to his military service. Additionally, as the Veteran's first finding of hearing loss was in 2001, approximately 31 years after discharge from service, service connection on a presumptive basis is not warranted. See 38 C.F.R. §§ 3.307, 3.309. As such, after weighing and balancing the evidence of record, the Board finds that the preponderance of the evidence of record is against a finding that the Veteran's current hearing loss and tinnitus had their onset during active service or are related to any in-service disease, event, or injury. See 38 U.S.C.A. §§ 1110, 1131. Accordingly, the Board finds that the criteria for service connection for hearing loss and tinnitus are not met and the Veteran's claims must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. See 38 U.S.C.A. § 5107(b). However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ D. MARTZ AMES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs