Citation Nr: 1312735	
Decision Date: 04/17/13    Archive Date: 05/02/13

DOCKET NO.  10-40 860	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

Entitlement to service connection for bilateral hearing loss.

Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Military Order of the Purple Heart of the U.S.A.


ATTORNEY FOR THE BOARD

R. Anderson, Associate Counsel





INTRODUCTION

The appellant is a Veteran who served on active duty from July 1966 to April 1970.  These matters are before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the St. Louis, Missouri Department of Veterans Affairs (VA) Regional Office (RO).  In January 2013, the Board secured a Veterans Health Administration (VHA) expert medical advisory opinion in this matter.  The Veteran was provided a copy of the decision and afforded opportunity to respond.


FINDINGS OF FACT

1.  A hearing loss disability of either ear was not manifested in service; sensorineural hearing loss (SNHL) was not manifested in the first post-service year; and the preponderance of the evidence is against a finding that the Veteran's current bilateral SNHL disability is related to an event, injury, or disease in service.

2.  It is reasonably shown that the Veteran's tinnitus became manifest in service and has persisted.


CONCLUSION OF LAW

1.  Service connection for bilateral hearing loss disability is not warranted.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2012).

2.  Service connection for tinnitus is warranted.  38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012).





REASONS AND BASES FOR FINDINGS AND CONCLUSION

	Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The VCAA applies to the instant claim.  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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 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, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication.  A December 2009 letter explained the evidence necessary to substantiate his claims, the evidence VA was responsible for providing, and the evidence he was responsible for providing.  It also informed him of disability rating and effective date criteria.  The Veteran has had ample opportunity to respond/supplement the record and has not alleged that notice in this case was less than adequate.

The Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured.  The RO arranged for a VA examination in February 2010; and, as is noted above, the Board secured a VHA medical expert advisory opinion (with nexus opinion) in this matter.  The opinion is adequate for rating purposes as it addresses all questions posed and includes a detailed explanation of rationale.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes).  The Veteran has not identified any pertinent evidence that remains outstanding.  The Board finds that the record as it stands includes adequate competent evidence for the Board to decide this matter, and that no further development of the evidentiary record is necessary.  See generally 38 C.F.R. § 3.159(c)(4).  The Veteran has not identified any evidence that remains outstanding.  VA's duty to assist is met.  

	Factual Background

The Board notes that it has reviewed all of the evidence in the Veteran's claims file and in Virtual VA (VA's electronic records database), with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim.

The Veteran's service personnel records, including his DD 214, show that he served as an aircraft mechanic on aircraft carriers; his exposure to hazardous levels of noise in service is not in dispute.

The Veteran alleges that he first noted tinnitus in service; that he saw a physician regarding ringing in his ears within one year after separation from service; and that he saw a doctor concerning hearing loss and tinnitus in 1995.  See April 19, 2010 notice of disagreement.  He states that both in the first year following separation from service and in 1995, he was advised that there was no treatment available.  

The Veteran's service treatment records show that on service entrance examination in July 1966, audiometry (with ASA values converted to ISO units for comparison purposes) revealed that puretone thresholds, in decibels, were:




HERTZ




500
1000
2000
3000
4000
6000
RIGHT
15
10
10
10
15
10
LEFT
15
15
10
10
15
20

On service separation examination in April 1970, audiometry revealed that puretone thresholds (reported in ISO values) were:





HERTZ




500
1000
2000
3000
4000
6000
RIGHT
15
15
10
10
10
10
LEFT
25
25
10
10
15
10

The Veteran's STRs do not show any complaints of tinnitus.  

On private audiological evaluation (with audiometry) in November 2009 the Veteran was found to have normal hearing in the low pitches; mild to moderate hearing loss in the mid pitches; and severe hearing loss in the high pitches.  It was noted that he reported having hearing loss and tinnitus on exit from service.  
      
On a February 2010 VA audiological evaluation, certified audiometry revealed that puretone thresholds, in decibels, were:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
35
50
60
75
LEFT
20
30
40
55
75

On February 2010 VA examination, the examiner opined, in essence, that since there was no high frequency threshold shift in service (from entrance to separation), since hearing was normal at separation, and since the low threshold shift found is not consistent with noise trauma-induced hearing loss, the Veteran's hearing loss is less likely than not service related.  The examiner noted that the Veteran was taking an ototoxic medication (but did not opine whether such medication was responsible for the Veteran's hearting loss).

The February 2010 VA examiner's opinion was considered inadequate for rating purposes.  Consequently, the Board secured a VHA expert audiologist's advisory opinion in this matter.

In February 2013 a VHA audiologist, who reviewed the entire record, opined that the Veteran's bilateral hearing loss and reported tinnitus are less likely as not due to noise exposure in service.  The audiologist explained that electronic hearing testing conducted at enlistment and discharge shows the Veteran did not have hearing loss/hearing injury while in service (there was no significant threshold shift beyond normal variability while in service).  The audiologist cited, Noise and Military Service-Implications for Hearing Loss and Tinnitus (2006), which states that there is no scientific basis on which to conclude that hearing loss that appears many years after noise exposure could be causally related to that noise exposure if hearing was normal immediately after the exposure.  In addition, noting that this report is the definitive consensus in this matter, the audiologist highlighted the following language from the report:

There is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure.  Although the definitive studies to address this issue have not been performed, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur.

The audiologist conceded that the report did not rule out that delayed onset might exist, but because the requisite longitudinal animal and human studies have not been done and based on current knowledge of acoustic trauma and the instantaneous or rapid development of noise-induced hearing loss, there was no reasonable basis for acknowledging delayed-onset noise induced hearing loss.   

Regarding tinnitus, the audiologist opined that the audiogram is the gold standard for identifying noise injuries, and as such, in the absence of an objectively verifiable noise injury (no significant threshold changes beyond normal variability), the association between claimed tinnitus and noise exposure does not exist.  Thus, in order to give a positive nexus opinion, a healthcare provider would have to accept the scientifically unsubstantiated theory that tinnitus occurred as a result of some latent, undiagnosed noise injury, which the audiologist noted, would directly contradict the objective evidence in the record.  Consequently, even though the Veteran reported that his tinnitus started during his military service in 1969, the audiologist indicated that there is no nexus between the onset of his tinnitus and any military noise exposure.  

	Legal Criteria and Analysis

To establish service connection for a claimed disability, there must be 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 current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). 

Certain chronic diseases (including organic diseases of the nervous system such as SNHL) may be service connected on a presumptive basis if they are manifested to a compensable degree within a specified period of time post-service (one year for SNHL).  38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 

		Hearing Loss

Hearing loss disability is defined by regulation.  For the purpose of applying the laws administered by VA, 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.

It is not in dispute that the Veteran has a bilateral hearing loss disability as defined in 38 C.F.R. § 3.385, as such was shown on February 2010 VA audiometry.  As was noted above, based on his duties in service as an aircraft mechanic on board aircraft carriers, it may also reasonably be conceded that the Veteran was exposed to hazardous levels of noise in service.  What remains necessary to establish service connection for his bilateral SNHL is that there must be competent evidence of a nexus between the current hearing loss and his service/noise trauma therein.  

A hearing loss disability was not manifested in service.  The Veteran's STRs are silent for such disability, and audiometry on active service separation examination was normal.  Furthermore, SNHL is not shown to have been manifested in the first post-service year.  Consequently, service connection for the bilateral hearing loss disability on the basis that such disability became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C.A. § 1112) is not warranted.  The Veteran contends in his formal claim that his hearing loss began in April 1970 (the month he separated from service).  In his April 2010 notice of disagreement, the Veteran asserts that his hearing loss began in 1969 (while still in service).  However, those assertions are contradicted by his separation audiometry, which by its scientific nature and by virtue of being contemporaneous is more probative evidence on the matter.  

What remains for consideration is whether in the absence of manifestation in service, and continuity since, the Veteran's bilateral hearing loss disability may nonetheless be related to his remote service/noise trauma therein.  He is not competent to establish such a nexus by his own opinion as that is a medical question, which requires medical expertise.  See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  The Veteran has no medical expertise, and does not cite to any supporting medical opinion (or provide rationale for his opinion).   

The only competent (medical) evidence that directly addresses the matter of a nexus between the Veteran's hearing loss and his service/noise trauma in service is the report of the February 2013 VHA consulting audiologist who, pointing to normal audiometry at separation, opined, in essence, that the Veteran's hearing loss was unrelated to his military service.  The audiologist expressed familiarity with the record, and explained the rationale for the opinion, citing to normal audiometry at separation (which by inference would not be expected if the Veteran had incurred a noise-trauma-related hearing loss during service).  The audiologist has the requisite training/expertise, cites to supporting medical literature and the opinion is probative evidence in the matter.  

Because there is no competent (medical) evidence to the contrary, the February 2013 VHA audiologist's opinion is persuasive.  Notably, the lengthy post-service interval (39 years) before a hearing loss disability was clinically noted is, of itself a factor weighing against a finding of service connection in this case.  

The preponderance of the evidence is against a finding of a nexus between the Veteran's bilateral hearing loss disability and his service/noise trauma therein and therefore against his claim.  In these circumstances, the "benefit of the doubt" rule does not apply; the appeal in the matter must be denied.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  
	Tinnitus

The presence of tinnitus is established by subjective complaints, self-reports by the person experiencing it.  It is not in dispute that the Veteran has tinnitus.  To substantiate this claim the Veteran must show that his tinnitus is related to his service, i.e., was incurred or aggravated therein.

Against the Veteran's claim is the February 2013 opinion of the VHA consulting audiologist.  That provider noted (and did not discount as not credible) the Veteran's account that he first noticed his tinnitus during his last year of active service; noted that the Veteran was taking ototoxic medication (but did not opine that that was the cause of his tinnitus); opined that the tinnitus is a symptom of the Veteran's hearing loss and cited to normal audiometry in service; and opined that the Veteran's tinnitus was less likely as not caused by, or a result of, acoustic trauma in service.

Notably, service connection may be established by showing that the claimed disability became manifest in service and has persisted since .  The Veteran is competent to report that he noted tinnitus during service, has it now, and has experienced it during the interim.  The question comes down to his credibility.  His reports of onset in service have been fairly consistent; while there are slight variances, the reports all place onset during the latter part of his active service.  The Board finds no reason to conclude that they are not credible.  Significantly, the consulting VHA expert who opined in February that the Veteran's tinnitus was not related to noise trauma in service did not discount the Veteran's report that he first noted tinnitus in service.  Accordingly, with resolution of reasonable doubt in the Veteran's favor as required under 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, the Board concludes that the evidence shows that the Veteran's tinnitus was incurred in service.  The evidence supports the Veteran's claim; service connection for tinnitus is warranted.




ORDER

Service connection for bilateral hearing loss is denied.

Service connection for tinnitus is granted.


____________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs