Citation Nr: 1312259 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 10-36 121 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION 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). The Veteran served on active duty with the United States Army from March 1960 to April 1962. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the United States Department of Veterans Affairs (VA). In October 2012, the Board remanded the claims for additional development. The directives having been accomplished, the appeals are now returned for further consideration. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure review of the totality of the evidence. FINDINGS OF FACT 1. The Veteran was exposed to excessive noise in service in the performance of his duties as a radio teletype operator. 2. Bilateral sensorineural hearing loss was not first manifested during active duty service or the first post-service year; the competent and credible evidence is against a finding that hearing loss is related to military service. 3. Tinnitus was not first manifested during active duty service; the competent and credible evidence is against a finding that tinnitus is related to military service. CONCLUSIONS OF LAW 1. The criteria for service connection of bilateral hearing loss are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 2. The criteria for service connection of tinnitus are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 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, 3.326 (2011). July 2009 and November 2012 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The July 2009 letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records (STRs) and VA medical treatment records, have been obtained; he did not identify any private treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). VA examinations were afforded the Veteran in August 2010 and November 2012. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Although the August 2010 examination was inadequate based on the stated rationale, the November 2012 examiner reviewed the history, made all required clinical findings, offered required opinions, and provided rationales for the opinions. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain: (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, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 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, as is diagnosed here, is a listed chronic diseases for purposes of presumptive service connection; it is considered an organic disease of the nervous system. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). The applicable presumptive period is one year following separation from service. 38 C.F.R. § 3.307(a)(3). 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). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998). The Veteran claims entitlement to service connection for hearing loss and tinnitus due to noise exposure in service from "very noisy" teletype machines. In his July 2009 application, he alleged the onset of both was January 1, 1961. Service treatment records show that at examination for entry into service in March 1960, hearing was 15/15 bilaterally via the whispered voice test. The Veteran reported that he had "trouble hearing once in a while" in September 1960. There are no further complaints or indications of hearing or ear problems reflected in STRs. At no time during service are complaints of or clinical findings consistent with tinnitus noted. At his separation examination in March 1962, the Veteran did not report any ear problems, tinnitus, or hearing difficulty as part of his medical history. Objective testing at that time showed: HERTZ 500 1000 2000 3000 4000 RIGHT 25 15 15 / 15 LEFT 20 15 15 / 15 Prior to November 1967, service department audiometric results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). The above audiological findings from the March 1962 separation examination have been converted to the ISO standard. Post-service medical records reveal that the Veteran was initially referred for a hearing assessment in late 2008. At his November 2008 audiology evaluation, the Veteran reported that he had difficulty hearing conversations in poor listening environments. He also reported bilateral tinnitus since 2003; he did not state when hearing loss had arisen. He stated that he had noise exposure from machine guns during two years of military service, but had worked in sales since, with no noise exposure. He denied a history of infection, surgery, vertigo, or familial hearing problems. The examiner offered no opinion on the etiology of the Veteran's hearing loss. Objective testing showed sensorineural hearing loss of: HERTZ CNC 500 1000 2000 3000 4000 RIGHT 35 30 25 75 75 80 LEFT 35 25 45 65 65 72 A VA examination was conducted in August 2010; the examiner was able to review the claims folder in conjunction with the examination. She noted the Veteran's in-service noise exposure and normal hearing tests at entry and separation; she did not, however indicate that she had converted the separation results to the ISO standard. No complaints or findings or tinnitus were noted in STRs. He could not recall when tinnitus had begun. The results of the November 2008 VA testing, as well as the doctor's findings, were noted. The Veteran complained of significant difficulty hearing in conversation, especially when a speaker was female. Tinnitus did not interfere with activities or sleep. He stated that in service he was exposed to noise from teletype machines in a large communications center; he did not use hearing protection. He denied excessive noise exposure since service. He also denied a history of infection, surgery, vertigo, or familial hearing problems. Audiometric testing, which was declared valid for adjudication purposes, showed: HERTZ CNC 500 1000 2000 3000 4000 RIGHT 40 30 55 70 70 72 LEFT 35 30 60 75 75 74 Bilateral mild to severe sensorineural hearing loss and tinnitus were diagnosed. The examiner opined that the hearing loss was not caused by in-service noise exposure., as hearing was completely within normal limits at separation. Tinnitus, similarly, was less likely than not caused by the in-service noise exposure. There had been no complaints of tinnitus in service, and tinnitus reportedly first began in 2003, well after service. The Board found the August 2010 VA examination inadequate, as the rationale appeared based entirely upon the absence of a documented in-service hearing loss. This is not necessarily fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87 (1992). The requirements for service connection for hearing loss need not be shown by audiometric testing during a claimant's period of active duty in order for the claim to be granted. 38 C.F.R. § 3.385. Rather, service connection may be granted where there is credible evidence of acoustic trauma due to 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. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Such also applies to tinnitus. Accordingly, a new VA examination, by the same VA examiner, was afforded the Veteran in November 2012. The Veteran reported noise exposure in service from "wall to wall teletype machines" and "tanks and aircraft." He had worked in sales after service, and denied occupational or recreational noise exposure. He stated that he was unable to hear conversation in a social setting when there was background noise. The Veteran's claims file was again reviewed, and objective testing was conducted, showing: HERTZ CNC 500 1000 2000 3000 4000 RIGHT 40 40 55 70 70 68 LEFT 35 30 60 75 75 56 The test results were valid for adjudication purposes. The Veteran also complained of tinnitus, which he stated had begun "around 1962." He described it as a constant bilateral ringing. Bilateral sensorineural hearing loss and tinnitus were diagnosed. The examiner again opined that bilateral hearing loss was less likely than not caused by military service. Although military noise exposure had been established, hearing was normal at separation and there was no finding or complaint of hearing problems for many years after service. Further, the pattern of hearing loss was not consistent with that expected to result from noise exposure. Such loss is usually "notched" at 4000 Hz; this was not shown on testing. Additionally, hearing loss from noise exposure was generally accepted as appearing immediately following the acoustic trauma, not after some period of delay. The examiner cited a 2006 report by the Institutes of Medicine. With regard to tinnitus, the examiner also offered a negative nexus opinion. She explained that there was no hearing loss or tinnitus complaint reflected in STRs, and that the Veteran had given inconsistent responses regarding the date on onset of tinnitus. In November 2008, he had reported the onset as 2003. In August 2010, he could not recall when it had started. Currently he had alleged 1962. Tinnitus can be caused by multiple conditions; in the absence of any objective evidence of hearing loss or significant threshold shifts in service, there was no support for a conclusion that tinnitus was related to service. Further, the examiner was aware of no widely accepted scientific evidence that tinnitus could have a delayed onset after noise exposure. A nexus was less likely than not. The Veteran has submitted an article from the Journal of Neuroscience, which summarizes a 2009 study finding that in cases of acoustic trauma where there was a temporary hearing threshold shift which then resolved, there was a likelihood of additional cochlear nerve damage which was not manifested in measurements of such thresholds, and was degenerative in nature, meaning it could become manifest later. Hearing Loss The Veteran contends that because there is only one established source of noise exposure reflected in his history-teletype machines in service-reasonable doubt must be resolved in his favor to grant service connection for hearing loss. However, the VA examiner has stated, based on the objective testing of record in the case of this Veteran and her medical knowledge and experience, that the hearing loss demonstrated by the Veteran is not related to in-service noise exposure. Such loss would have shown a "notched" pattern at higher frequencies, where the acoustic trauma did its damage. This was not shown upon testing at the time of separation. Further, the examiner maintains that generally accepted medical knowledge does not recognize delayed onset hearing loss from noise exposure, as would have had to occur here. She cites a specific 2006 study in support of her position. It is true that the Veteran has cited a more recent study from 2009 indicating some delay is indeed possible. That study, however, refers to delays of "weeks to months" in the appearance of hearing impairment, not the decades demonstrated here. Moreover, the Veteran's study indicates that the hearing impairment subject to such delayed onset would not manifest in shifts of the puretone thresholds. The study is too general in nature to provide, alone, the necessary evidence to show that noise exposure in service was related to the Veteran's hearing loss shown many years after service. See Sacks v. West, 11 Vet. App. 314, 316-17 (1998). The medical treatise, textbook, or article must provide more than speculative, generic statements not relevant to the claim but must discuss generic relationships with a degree of certainty for the facts of a specific case. See Wallin v. West, 11 Vet. App. 509, 514 (1998). The documents in the current case do not address the facts of this specific case and thus are not entitled to any probative weight. The Board has considered that STRs do include reference to intermittent "trouble hearing" in September 1960. The sensorineural hearing loss currently diagnosed, however, is an acknowledged chronic disease. The periodic nature of the in-service complaint, early in service and before the bulk of the reported noise exposure, combined with the separation examination, which did not include a diagnosis of sensorineural hearing loss, and the absence of complaints of or treatment for hearing loss for decades following service, necessitates a finding that the in-service treatment is not a manifestation of the current condition. Moreover, the 2012 opinion of the VA examiner is entitled to great probative weight as it is based on an adequate examination. 38 C.F.R. § 3.303(b). In sum, the weight of the evidence is against the claim; there is no doubt to be resolved. The only medical opinions of record are negative; while the Veteran has expressed his belief that there is a nexus between service and current disability, he is not competent to render such an opinion. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). This is not a situation of an observable cause and effect relationship as he asserts that he has hearing loss, diagnosed many years after service, that is associated with noise exposure in service. Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In addition, while the Veteran is competent to report difficulty hearing, continuity of symptoms is not shown. After the Veteran reported that he was having trouble hearing in service, he denied any difficulties at separation. The Board finds competent, credible and probative the documentation prepared by the Veteran and the examiner contemporaneous in time to his separation from service. Moreover, the absence of evidence of hearing loss for many years after service also weighs against the claim. While the Veteran was exposed to excessive noise in service, such did not cause or contribute to his current hearing loss disability. Tinnitus Similarly, the weight of the evidence is against service connection for tinnitus. The competent evidence of record notes that delayed onset tinnitus is not acknowledged in the medical literature. STRs show no in-service diagnosis or complaints. There is no documented evidence of tinnitus complaints until 2008, when the Veteran reported that the condition arose in 2003. He has also, however, alleged onset in 1961 and 1962, and has asserted that he does not recall when it began. Although the Veteran is competent to report tinnitus symptoms, and hence to identify their onset, his inconsistent statements render his lay testimony not credible. The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). A negative inference may be drawn from the absence of complaints or treatment for an extended period, though. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The sole evidence in support of the claim is the lay statement of the Veteran that tinnitus began in service. However, as this allegation lacks credibility, it can be given little or no probative weight. The remaining evidence, including a reasoned medical opinion based on the facts reflected in the file and accepted medical knowledge, is against the claim and is entitled to far greater weight. There is no equipoise in the evidence, and no doubt to be resolved. Service connection for tinnitus is not warranted. (CONTINUED ON NEXT PAGE) ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs