Citation Nr: 1313030 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 11-16 352 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from December 1955 to August 1957. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In September 2012, the Board remanded these matters to the RO via the Appeals Management Center (AMC) for additional development. That development completed, the matters have properly been returned to the Board for appellate consideration. Please note 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). FINDINGS OF FACT 1. The competent and credible evidence shows that the Veteran's bilateral hearing loss did not have onset during active service, did not manifest within one year of separation from active service, and was not caused by an event, disease, or injury during active service. 2. The competent and credible evidence shows that the Veteran's tinnitus did not have onset during active service and was not was not caused by an event, disease, or injury during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307(a), 3.309(a) (2012). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 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), VA has a duty to notify and assist claimants in substantiating claims 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, 3.326(a) (2012). 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. § 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)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For service-connection claims, this notice must address the downstream elements of disability rating and effective date. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA received the Veteran's claims that led to this appeal in November 2009. The VCAA duty to notify was satisfied by way of a letter sent to the Veteran that same month. That letter informed him of what evidence was required to substantiate the claims, and of his and VA's respective duties for obtaining evidence. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of service and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service and VA treatment records as well as his service personnel records. In June 2009, the Veteran submitted evidence documenting audiology testing at Hearing Solution Centers in December 2006. Pursuant to the September 2012 Board Remand, the AMC sent a letter to the Veteran later that month asking him to identify private treatment. He then submitted a VA Form 21-4142, Authorization and Consent to Release Information to VA, in which he identified December 2006 treatment for hearing loss by the Hearing Solution Centers. There is no indication that the AMC or the RO forwarded that form to the Hearing Solution Centers. However, accompanied with the VA Form 21-4142 was audiometric test information from that facility, which is dated in December 2006. Given the date identified by the Veteran for the treatment and the evidence he submitted with the VA Form 21-4142, it is reasonable to assume that he submitted all evidence favorable to his claim that was available from Hearing Solutions Center. The Board therefore concludes that the records identified were submitted. No useful purpose would be served in remanding the matter for duplicate records. Pursuant to the Board's September 2012 Remand, VA provided an audiology examination in October 2012 to address the nature and etiology of the Veteran's hearing loss and tinnitus. 38 C.F.R. § 3.159(c) (4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the September VA examination was adequate. The VA examiner considered all of the pertinent evidence of record, to include his service treatment records, and personal statements and history. 38 C.F.R. § 3.159(c) (4). The examiner also described the Veteran's hearing loss and tinnitus in sufficient detail for the Board to make an informed decision, and the examiner provided an analysis to support his conclusions. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007) (explaining that an opinion is adequate where it includes a detailed description of the disability, takes into consideration the relevant history of the disability, and is supported by an analysis that the Board can weigh against other evidence). The Board concludes that all the available records and medical evidence have been obtained in order to make adequate determinations as to these claims. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Finally, an appellant is entitled as a matter of law to compliance with the Board's remand directives and the Board errs if it does not ensure such compliance. See Stegall v. West, 11, Vet. App. 268, 271 (1998). It is substantial compliance, not absolute compliance, that is required. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In the September 2012 Remand, the Board directed the AMC to send a letter to the Veteran asking him to provide names of any health care providers who had provided him with treatment for his hearing loss or tinnitus, and to ask him to complete and return necessary authorizations for VA to obtain any additional records from Dr. "S.," Dr. "J.P.,", and Hearing Solution Centers. The Board also directed the AMC to schedule the Veteran for a VA examination with a physician with appropriate expertise in order to determine the nature and etiology of his claimed hearing loss and tinnitus, and to readjudicate his claims. In September 2012 the AMC sent a letter to the Veteran that contained the information the Board had specified. In October 2012, VA provided the Veteran with an appropriate examination. The AMC readjudicated the claims in a February 2013 Supplemental Statement of the Case. The Board is aware that the October 2012 examination was conducted by an audiologist rather than a physician. Although the Board asked for the Veteran to be scheduled for an examination by a physician with appropriate expertise, upon reviewing the case the Board finds the October 2012 examination adequate and finds no reason for requiring that a physician conduct the examination. Here, the audiologist is an expert in the area of hearing disabilities. As an appropriately qualified medical professional conducted the examination, the Board concludes that there was substantial compliance with its Remand. II. Service Connection The Veteran contends that his current hearing loss disability and tinnitus are due to exposure to loud noise during service. In a February 2010 letter, the Veteran stated that he was exposed to loud noise from the ship's engines and boilers that were adjacent to the storeroom where he worked as a stock clerk. In his September 2010 notice of disagreement, he stated that his hearing loss began while in basic training when the man next to him fired a rifle near the Veteran's head. His personnel file shows that he completed a marksman course in February 1956. From these facts, the Board concludes that the Veteran has presented both competent and credible evidence that he was exposed to loud noise during his active service. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Generally, the evidence 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) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). For veterans who had active service of 90 days or more during a period of war or after December 31, 1946, certain chronic diseases that manifest to a degree of 10 percent or more in a specified period of time will be considered to have been incurred in or aggravated by service even though there is no evidence of such disease during the period of service. 38 U.S.C.A. § 1112 (West 2002 & Supp. 2012); 38 C.F.R. § 3.307(a) (2012). 38 C.F.R. § 3.307(a)(1). The factual basis may be established by medical evidence, competent lay evidence or both. 38 C.F.R. § 3.307(b) (2012). Medical evidence should set forth the physical findings and symptomatology elicited by examination within the applicable period. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that 38 C.F.R. § 3.303(b) applies only to those conditions listed at 38 C.F.R. § 3.309(a) as chronic diseases. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that that 38 C.F.R. § 3.303(b) only applies to those diseases listed as chronic disease at 38 C.F.R. § 3.309(a)). If 38 C.F.R. § 3.309(a) specified chronic disease is shown as such in service or within an applicable presumptive period, subsequent manifestations of the same chronic disease are service connected. 38 C.F.R. § 3.303(b). When the disease entity is full established there is no requirement of evidentiary showing of continuity. Id. 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. Id. 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. Although hearing loss is not specifically listed under 38 C.F.R. § 3.309(a), the Federal Circuit has not directly addressed the issue of whether any forms of hearing loss fall into any of the categories defined by 38 C.F.R. § 3.309(a). It is further noted that it is the established policy of the Veterans Benefits Administration is to treat sensorineural hearing loss as an organic disease of the nervous system. See M21-1MR III.iv.4.B.12.a. Organic diseases of the nervous system are chronic diseases under 38 C.F.R. § 3.309(a). As the Veteran in this case has been diagnosed with sensorineural hearing loss the Board has considered his claim of entitlement to service connection for sensorineural hearing loss under the provisions of 38 C.F.R. § 3.303(b) and under 38 C.F.R. § 3.307(a). The post-service presumptive period under § 3.307(a) is one year. In explaining this 38 C.F.R. § 3.303(b), the Federal Circuit stated that this provision provides a route to service connection different from hat provided by § 3.303(a). See Walker, 708 F.3d at 1336. That is, proven continuity of symptomatology establishes the nexus between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or within a presumptive period during which existence in service is presumed. Id. (citing Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) for the conclusion that § 3.303(b) "provid[ed] a substitute way of showing in-service incurrence and a medical nexus"). The Federal Circuit summarized the difference between § 3.303 subsection (a) and subsection (b) in that a chronic disease that qualifies for subsection (b) analysis benefits from presumptive service connection or service connection via continuity of symptomatology while a disease that does not qualify for § (b) analysis must satisfy the "nexus" requirement under subsection (a). Id. at 1338-39. A showing of continuity of symptomatology requires evidence (1) that the condition was "noted" during service; (2) post-service evidence 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) (citing Savage v. Gober, 10 Vet.App. 488, 495-96 (1997)). "[S]ymptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496. The "noted in service" element requires only that the condition was noted at the time the veteran was in service but such noting need not be reflected in any written documentation contemporaneous to service. Id. In general, a claimant is competent to provide lay statements of observable symptoms of disability and continuity of such symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). The value of lay statements of symptoms and continuity of symptomatology, as with any evidence, depends in part on whether it is credible; the mere absence of corroborating contemporaneous medical evidence does not render the statements incredible. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2008). Irrespective of the presumptive provisions, service connection may 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. § 3.309(d). The Board has taken weighed all of the lay and medical evidence in making its determination as to whether the Veteran's current tinnitus and/or hearing loss were incurred in service. The Board now turns to the pertinent evidence in this case. Service treatment records do not include any reports of hearing difficulty or tinnitus symptoms, i.e. ringing in the ears. These records do document that the Veteran reported joint pain, diarrhea, a sore shoulder, and pain and bleeding on defecation in May and June 1957. A report of an August 1957 medical examination, conducted for the purpose of separation from active duty, documents that he had a normal clinical evaluation of the ears. Although no audiometric testing results are listed in the report, the report does document that he had normal whisper voice tests for both ears. The service treatment records are therefore evidence against his claim because they appear complete and detailed, he reported other conditions but not hearing difficulty or symptoms of tinnitus, and he had a normal clinical evaluation at separation from active service. Indeed, the fact that he did not hold back in registering other physical complaints in service negates veracity of his current assertion that he experienced hearing loss but chose not to report it. The April 2009 claim that ultimately gave rise to this appeal was the first claim received by VA from the Veteran for VA disability compensation benefits. The earliest date listed in post-service evidence from a medical professional is a November 2009 letter in which "J.P.," M.D. stated that he had treated the Veteran since 1991. Dr. J.P. stated that the Veteran used hearing aids throughout that time and his hearing continued to deteriorate. Dr. J.P. also referred to the Veteran's arthritic pain of the hands and shoulders and then stated that he felt that this is probably service related. Reading the letter in a manner most favorable to the Veteran, the Board interprets the last statement as relating the hearing loss to service. However, this evidence also tends to show only that he had hearing loss since 1991. Dr. J.P.'s nexus statement has been considered, but the Board emphasizes that Dr. J.P. provided no reasoning to support that conclusion. The opinion is therefore afforded very little probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008( explaining that most of the probative value of a medical opinion comes from its reasoning and a medical opinion that contains only data and conclusions is not entitled to any weight in a service-connection or rating context). Of record is evidence from December 2006 audiometric testing by Hearing Solutions Centers. This evidence shows that the Veteran has a hearing loss disability. Listed as remarks are that the Veteran reported tinnitus and reported that his hearing conditions are service related. These remarks therefore are no more than a repetition of the Veteran's opinion that his hearing loss and tinnitus are related to his active service. They are not the opinion of an expert and therefore are not afforded any weight beyond that afforded the Veteran's opinion. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (holding that a bare transcription of lay history reported by the claimant, unenhanced by additional comment by the transcriber, does not become competent medical evidence simply because the transcriber is a medical professional); Bloom v. West, 12 Vet. App. 185, 187 (1999) (holding that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion."). In October 2012, VA afforded the Veteran a compensation and pension audiology examination. Results of audiometric testing show that the Veteran does have a bilateral hearing loss disability, diagnosed as sensorineural hearing loss. The examiner also diagnosed recurrent tinnitus. As to the tinnitus, the examiner listed in a medical history section that his tinnitus was first noticed in the 1970s with gradual onset. In addition to the Veteran's report that his hearing loss began during basic training, there are several statements of record from others who report their observations and opinions. Those statements were received at the RO in September and October 2010. His brother reported that prior to service him and the Veteran would diagnose automobile problems by listening to the sounds of the car but after service the Veteran was unable to hear small noises and complained of ringing in his ears. His brother stated that the Veteran sought treatment from a Dr. S. and Dr. S. prescribed medication which was ineffective. He also reported that the Veteran's spouse was soft spoken and after service she had to be looking at the Veteran in order for the Veteran to hear her. An acquaintance, "W-H.S.R.," reported knowing the Veteran prior to and after his active duty and noticing a significant post-service loss of his ability to hear, even in close-up conversation. W-H.S.R. also expressed an opinion that the loss was due to his active service. Finally, his spouse reported that upon return from the Navy, the Veteran had difficulty hearing her. Initially, the Board must consider whether their opinions are competent evidence. It is error to categorically reject layperson nexus evidence as incompetent; whether a layperson opinion as to a nexus or a diagnosis is competent evidence depends on the facts of the particular case. See Davidson v. Nicholson, 581 F.3d 1313 (Fed. Cir. 2009). One factor for consideration is the complexity of the question to be determined. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (providing an example in footnote 4 that a layperson would be competent to diagnose a simple condition such as a broken leg but not competent to diagnose a form of cancer). Another factor is whether the question can be answered by personal observation alone. See Layno v. Brown, 6 Vet. App. 465, 496 (1994) (explaining that a layperson is competent to report only that which he or she observed). To the extent that these individuals offer an opinion, other than through observation of the Veteran's behavior in responding to sounds, that a current hearing loss and tinnitus are due to events or injuries during his active service, their opinions are not competent evidence. This is because how and when hearing loss and tinnitus due to noise exposure manifests is not within the realm of knowledge of a layperson and is not a determination that can be made by observation alone. Rather it is a complex question that requires expertise. The laypersons', including the Veteran's, observations of his behavior when exposed to sounds, for example how well he could hear someone speaking or the sounds of an automobile engine, are competent evidence. The Board has considered these statements and has weighed them against other evidence of record. Indeed, upon further reflection, the Board now finds the strength of these statements to lack sufficient probative value. See Board Remand dated September 2012 wherein these statements were initially thought to be credible and probative. These individuals have reported that the Veteran had difficulty hearing low volume sound. This is a qualitative observation as opposed to a quantitative observation. Similarly, the whisper test conducted at separation from active service was a qualitative test as opposed to a quantitative test. Without going into detail as to the frequency distribution of the Veteran's spouse's voice as opposed to person providing the whispered voice during service, the Board notes that the two observations provide different results. Given that the reports of his hearing provided by these individuals comes not contemporaneous to service but more than fifty years later, the Board finds that, on balance, their reports of observed qualitative hearing loss are outweighed by the report of the qualitative whispered voice testing during service. Moreover, although the Veteran's brother stated that the Veteran reported ringing in the ears when he returned from service, that report is not consistent with the normal findings at separation from service, with the fact that the Veteran did not report any such problems during service, or with the statement in the October 2012 examination report that tinnitus was first noticed in the 1970s. For this reason, the Board affords little weight to the Veteran's brother's report that the Veteran complained of ringing in the ears shortly after service. In a remarks section of the October 2012 audiology examination report, the audiologist noted that the Veteran had worn hearing aids since the late 1960s with a slow progression of hearing loss, and, as noted above, the report documents that his tinnitus was first notice in the 1970. Clearly this history was obtained from interview with the Veteran as those facts along with such facts as that he had pressure equalization tubes placed in his right ear at age ten, are found nowhere else in the claims file. The audiologist who examined the Veteran in October 2012 indicated that he had reviewed the Veteran's claims file and provided an opinion that his current hearing loss was not at least as likely as not caused by or a result of an event in military service. The examiner's explanation for this conclusion was that there was no mention of tinnitus or hearing loss during service, whisper test was normal at separation from service, and he was first treated for hearing loss some ten to fifteen years after separation from service. The examiner explained that the Veteran's report of delayed onset of hearing loss and tinnitus was not consistent with research studies of noise induced hearing loss. The Board finds this opinion to be of considerable probative value. Unlike Dr. J.P's opinion, the audiologist's opinion is supported by adequate reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). This opinion is the most probative evidence of record because it is the opinion of an expert who had before him the Veteran's statements as well as the statements of the laypersons and Dr. J.P. In the March 2013 statement, the Veteran's representative contended that the VA improperly relied on the October 2012 audiology report's mention of whispered voice tests because such tests could not ascertain high frequency hearing loss. It also cited Hensley v. Brown, 5 Vet. App. 155, 160 (1993) for the proposition that a claimant can establish hearing loss disability first manifested years after separation from service on the basis of evidence showing that a current hearing loss is causally related to injury or disease suffered during service. It is noted that there simply were no audiometric test results from the Veteran's period of active service. While whisper voice testing may not be as probative of hearing acuity for VA disability purposes as audiometric testing, that does not mean that the whisper voice test has no probative value. This is particularly the case here, where the bulk of the evidence offered to show that the hearing loss was present near the time of separation from service are statements describing the Veteran's response to low volume speech. Moreover, the examiner did not base his opinion solely on the whisper voice test results. He also explained that the delayed onset nature of the Veteran's hearing loss and tinnitus was not consistent with causation of acoustic trauma during service. As to the argument with regard to Hensley, that argument is rooted in 38 C.F.R. § 3.303(d) which allows for proof of in service causation of a disability even though the disability is first diagnosed after service. While it is accurate to state that one is not precluded from proving onset during service of a later diagnosed condition, the preponderance of evidence in this case is against findings that his hearing loss and tinnitus are due to service. Here, the evidence is against a finding that the Veteran's hearing loss manifested within one year of separation from active service or manifested during service. Although the Veteran has not specifically stated so, even if he and the laypersons already referred to are contending that he first experienced hearing loss during service and had continuous symptoms since service, or for that matter that he had ringing in the ears shortly after service and since service, those statements come many years after separation from service and are therefore subject to the effects of time on memory. The Board must take this into consideration along with the fact that the earliest he sought benefits was in 2009 and, assuming Dr. J.P. relied on documentation from 1991, even that evidence comes many years after separation from service. On balance, the Board finds that these reports that are favorable to early onset of tinnitus and hearing loss are outweighed by the service treatment records and the October 2012 examination report. In summary, the preponderance of evidence is against a finding that the Veteran's bilateral hearing loss or tinnitus had onset during his active service or within an applicable presumptive period, or were caused by his active service. His appeal as to these issues must therefore be denied. There is no reasonable doubt to be resolved in this case. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED NEXT PAGE) ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs