Citation Nr: 1310792 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 10-49 325 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral tinnitus. ATTORNEY FOR THE BOARD D. M. Ames, Counsel INTRODUCTION The Veteran had active service from June 1967 to June 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In a November 2011 statement, the Veteran's former attorney cancelled his representation of the Veteran. Therefore, the Veteran is currently unrepresented. 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 preponderance of the evidence reflects that the Veteran does not have bilateral hearing loss due to any incident of his active duty service. 2. The preponderance of the evidence reflects that the Veteran does not have bilateral tinnitus due to any incident of his active duty service. CONCLUSIONS OF LAW 1. The Veteran's bilateral hearing loss was not incurred or aggravated in service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 2. The Veteran's bilateral tinnitus was not incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (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. 2012); 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 Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA has satisfied its duty to notify by issuing a pre-adjudication notice letter in April 2009. This letter advised the Veteran of what evidence was required to substantiate his claims, and of his and VA's respective duties for obtaining evidence. The letter provided notice regarding the disability evaluation and effective date elements of a service connection claim. Dingess, 19 Vet. App. at 473. The duty to assist provisions of the VCAA have been met. The claims file contains service treatment records (STRs), reports of post-service medical treatment, and the report of a VA examination in April 2009 with an addendum opinion in July 2009. At the April 2009 examination, the examiner did not have access to the Veteran's STRs. She stated that she was unable to provide an opinion without speculating without access to them. In July 2009, the claims file was provided to the examiner, who reviewed the evidence of record including the STRs. The examiner then rendered a negative etiology opinion and elected to use the rationale included in the original April 2009 report. The examination, combined with the addendum opinion was adequate because it was based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder, and appropriate diagnostic tests. The examiner also provided a rationale for the opinion. 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). The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claims. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). Service Connection Claims Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 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 certain diseases. 38 C.F.R. §§ 3.303(a),(b), 3.309(a); see also Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). For VA purposes, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is between 0 and 20 decibels and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). At his April 2009 VA examination, his audiogram showed results that meet the threshold for a hearing loss disability under 38 C.F.R. § 3.385. Certain chronic diseases, including sensorineural hearing loss, may generally be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. In this case, presumptive service connection is not warranted because the evidence does not show that the Veteran had sensorineural hearing loss that manifested to a compensable degree within one year of his separation from service in June 1971, nor has he so asserted. 38 U.S.C.A. §§ 1112 , 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The Veteran served in the Air Force and his DD Form 214 shows that he worked as an aircraft mechanic. In April 2009 he reported to a VA examiner that he worked under aircraft while their engines were running, sometimes without hearing protection. Based upon the Veteran's DD Form 214, the Board finds that the description of his noise exposure is consistent with the circumstances of his service and concedes that he was exposed to noise during service. The Veteran's June 1967 entrance examination and May 1971 separation examination show normal hearing. The remainder of his STRs do not show complaints or diagnoses of hearing loss or tinnitus. The absence of in-service evidence of a hearing disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post- service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Regarding tinnitus, Training Letter 10-02 (issued March 2010) indicated that sensorineural hearing loss is the most common cause of tinnitus, but commented that the etiology of tinnitus often cannot be identified. Other known causes were listed, including Meniere's disease, a head injury, hypertension, medications, and dental disorders. It was noted that delayed-onset tinnitus must also be considered. There are two etiology opinions of record. First, in April 2009, the Veteran underwent a VA examination. He reported working with aircraft while their engines were running. He stated that he sometimes did not wear hearing protection. The examiner diagnosed him with bilateral sensorineural hearing loss and bilateral tinnitus. Following service, he worked as a splicer and then a crew foreman, but described his jobs as mainly involving office work. He reported that the gradual onset of his bilateral tinnitus occurred in the 1980s. The examiner noted that there were several private audiograms of record from April 1989, August 1994, April 1997, December 1999, November 2001, November 2004, and April 2008. She reviewed these graphical audiograms and stated that the results showed normal hearing, bilaterally, with the exception of a mild 30 decibel loss in the left ear at 4000 hertz in April 1989, with no threshold shift on the next most recent test in August 1994. Onset and progression of hearing loss was noted in the April 1997 audiogram as well. She noted that subsequent tests showed fluctuations indicating both improvement and worsening of hearing levels. The most recent audiogram from April 2008 showed a bilateral, irregular configuration mild to moderate sensorineural hearing loss. The examiner was unable to provide an opinion without speculating because she did not have access to the Veteran's STRs and could not determine whether he had hearing loss during service. However, she noted that the configurations of the Veteran's audiograms showed irregular patterns such as "cookie bite, mid frequency," and they were "not entirely consistent with noise exposure." She noted that private audiograms show onset of hearing loss and progression in 1994 with subsequent, irregular fluctuations which were also "not consistent with noise exposure." In July 2009, after being reviewing the Veteran's STRs, the examiner stated that the Veteran's audiograms were normal at his entry into and separation from service. She concluded that based upon the configuration of his audiograms, it was less likely than not that his hearing loss and tinnitus were related to his military service. She referred the reader to her April 2009 discussion of the Veteran's post-service audiograms. The April 2009 examination, combined with the July 2009 addendum opinion, are entitled to significant probative weight based upon the examiner's thorough review of multiple post-service audiograms as well as the STRs and her examination of the Veteran. Her opinion is supported by the well reasoned rationale that his patterns of hearing loss are not consistent with noise exposure. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Second, in September 2009, S. N., the Veteran's private audiologist, submitted a statement to VA. He stated that the Veteran reported difficulty hearing for years, and he began wearing a hearing aid in his right ear approximately 10 years ago and eventually began to wear one in his left ear as well. He reported that he was exposed to loud aircraft in service and denied subsequent post service noise exposure after his separation. He also denied a familial history of hearing loss. S. N. found that based upon the Veteran's history of noise exposure, "it is more likely than not" that the noise exposure contributed to his hearing loss. He also state that "[t]here may, however be other contributing factors." S. N.'s opinion is less probative than that of the VA examiner. The Court has held that an examiner's review of the claims file is not the determinative factor in assigning probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). But the Court noted that an examiner should have information regarding relevant case facts. In this case, S. N. did not have access to the multiple post-service audiograms that the VA examiner had an opportunity to analyze. Therefore, his opinion is not adequate because it is based in part upon an incorrect factual basis. The Board is not bound to accept medical opinions that are based upon an inaccurate factual background. See Black v. Brown, 5 Vet. App. 177 (1993); Swann v. Brown, 5 Vet. App. 229 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993). Because the Veteran has been diagnosed with sensorineural hearing loss, service connection based upon continuity of symptoms must be considered. 38 C.F.R. §§ 3.303(a),(b), 3.309(a); see also Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). In this case, the evidence does not show nor has the Veteran asserted that his hearing loss began in service and persisted since then. Further, he reported to S. N. that he first began wearing a hearing aid in approximately 1999. Tinnitus is not listed among the chronic diseases in 38 C.F.R. § 3.309(a). Therefore a discussion of continuity of symptoms is not warranted. Id. The Veteran has not offered lay arguments in support of his claims. However, his former attorney submitted a treatise titled, "Acceleration of Age-Related Hearing Loss by Early Noise Exposure: Evidence of a Misspent Youth. (J. Neurosci. 2006 February 15; 26(7); 2115-2123). Based upon animal studies, the authors concluded that sublethal changes initiated by early noise exposure render inner ears significantly more vulnerable to aging. In essence, they assert that exposure to noise early in life makes one more vulnerable to hearing loss when older. Generic medical literature which does not apply medical principles regarding causation or etiology to the facts of an individual case does not provide competent evidence to establish a nexus. See Libertine v. Brown, 9 Vet. App. 521, 523 (1996). The exception to this competency rule is when the medical treatise information, where "standing alone, discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion." Wallin v. West, 11 Vet. App. 509, 513 (1998). However, medical treatise information may be regarded as competent evidence where "standing alone, [it] discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion." Id. The Board finds that the article does not meet the standard set forth in Wallin because it does not delve into an association between the Veteran's service and his currently diagnosed bilateral hearing loss and tinnitus. As noted above, the Veteran's irregular fluctuations of his audiogram results are not consistent with noise exposure and therefore the article is less probative because it is limited to a discussion of the impact of noise exposure while young on aging ears. Further, the article proffered by the Veteran's former attorney is less probative than the opinion of the VA examiner because it does not apply the specific facts to this specific case. Sacks v. West, 11 Vet. App. 314, 317 (1998). The findings f the VA examiner are more probative than the opinion of S. N. and the treatise article submitted by the Veteran's former attorney. Although it is conceded that he was exposed to noise during service, the medical evidence of record shows that his pattern of hearing loss is not consistent with such exposure. Since the preponderance of the evidence is against the claims, the provisions of 38 U. S. C. A. 5107(b) regarding reasonable doubt are not applicable, and his claims must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER Service connection for bilateral tinnitus is denied. Service connection for bilateral hearing loss is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs