Citation Nr: 1313262 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 10-01 926 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from August 1965 to August 1967. He had service in the Republic of Vietnam, where his awards and decorations included the Combat Infantryman Badge. He was also a recipient of the Parachutist Badge. This matter came to the Board of Veterans' Appeals (Board) on appeal from an February 2009 rating decision by the RO. FINDINGS OF FACT 1. There is clear and convincing evidence that the Veteran's hearing loss disability was first manifested many years after service and that it is unrelated thereto. 2. There is clear and convincing evidence that the Veteran's tinnitus was first manifested many years after service and that it is unrelated thereto. CONCLUSIONS OF LAW 1. A hearing loss disability is not the result of disease or injury incurred in or aggravated by service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2012). 2. Tinnitus is not the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist Prior to consideration of the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory duty to assist him in the development of the issues of entitlement to service connection for hearing loss disability and tinnitus. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. After reviewing the record, the Board finds that VA has met that duty. In October 2008, VA received the Veteran's claims, and there is no issue as to providing an appropriate application form or completeness of the application. Following the receipt of that application, VA notified the Veteran of the information and evidence necessary to substantiate and complete his claims, including the evidence to be provided by him, and notice of the evidence VA would attempt to obtain. VA informed him of the criteria for service connection, as well as that for rating service-connected disabilities and for assigning effective dates, should service connection be granted. Following the notice to the Veteran, VA fulfilled its duty to assist him in obtaining identified and available evidence necessary to substantiate his claim. VA obtained or ensured the presence of the Veteran's service treatment records and records reflecting his VA treatment in August 1967 and from September 2009 through April 2012. In February and September 2009, VA examined the Veteran to determine the nature and etiology of any hearing loss disability or tinnitus found to be present. The VA examination reports show that the examiners reviewed the Veteran's medical history, interviewed and examined the Veteran, documented his medical conditions, and rendered diagnoses and opinions consistent with the remainder of the evidence of record. Therefore, the Board concludes that the VA examinations were adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2009); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Finally, in January 2010, VA offered the Veteran an opportunity to present additional evidence and argument at a hearing on appeal. To date, however, he has declined to accept that offer. In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal. He has not identified any outstanding evidence which could support either of his claims; and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to the merits of the appeal. Analysis The Veteran contends that her hearing loss disability and tinnitus is primarily the result of noise exposure sustained during combat operations in the Republic of Vietnam. He states that he has had chronic difficulty hearing and ringing in his ears since that time. Therefore, he maintains that service connection is warranted. However, after carefully considering the Veteran's claims in light of the record and the applicable law, the Board is of the opinion that there is clear and convincing evidence is against those claims. Accordingly, service connection for hearing loss disability and tinnitus is not warranted, and the appeal will be denied. Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. Generally, the evidence must show (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992). For the purposes 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. The failure to meet these criteria at the time of a veteran's separation from active service is not necessarily a bar to service connection for hearing loss disability. A claimant may, nevertheless, establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service. Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993); see 38 C.F.R. § 3.303(d) (2003); Heuer v. Brown, 7 Vet. App. 379, 384 (1995). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease identity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). 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. 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. For certain organic diseases of the nervous system, such as sensory neural hearing loss disability, service connection may be presumed when such disability is shown to a degree of 10 percent or more within one year of the Veteran's discharge from active duty. 38 U.S.C.A. § 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Such a presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307. The foregoing law and regulations notwithstanding, 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. § 3.303(d). Special considerations attend the cases of combat veterans. 38 U.S.C.A. § 1154(b) (West 2002). For any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service connection in each case are to be recorded in full. Section 1154(b) sets forth a three-step, sequential analysis that must be undertaken when a combat veteran seeks benefits under the method of proof provided by the statute. As the first step, it must be determined whether the veteran has proffered satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease. Second, it must be determined whether the proffered evidence is "consistent with the circumstances, conditions, or hardships of such service." In this case, the Board finds that the Veteran has met the first two steps. Therefore, a factual presumption arises that the alleged hearing loss disability and tinnitus are service-connected. Although Section 1154(b) makes the resolution of that inquiry very favorable to the Veteran by providing that the VA shall resolve every reasonable doubt in his favor, the presumption is rebuttable. VA may rebut the presumption by presenting clear and convincing evidence to the contrary. Thus, as the third step in the analysis, it must be determined whether the government has met its burden of rebutting the presumption of service-connection by clear and convincing evidence to the contrary. Collette v. Brown, 82 F. 3d 389, 392-93 (1996). The Board acknowledges that the Veteran is competent to give testimony about what he experienced in and after service. For example, he is competent to report that he began to experience difficulty hearing and ringing in his ears in service, and that such manifestation have been present since that time. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). In certain instances, lay evidence can be competent and sufficient to establish a diagnosis of a condition. Indeed, competent lay evidence may be used to establish a medical condition, including causation. King v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012) (the Court of Appeals for the Federal Circuit discussing 38 U.S.C.A. § 5107(b), 38 C.F.R. § 3.307(b), and its prior holdings in Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); and Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009)). Such cases may occur under the following circumstances: (1) when a layperson is competent to identify the medical condition, (2) when a layperson is reporting a contemporaneous medical diagnosis, or (3) when a lay person describes symptoms which are subsequently diagnosed by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, even though the Veteran is competent to report his onset of hearing difficulties and ringing in his ears since service, that does not mean that those manifestations meet the VA criteria for service connection for a hearing loss disability. Whether the Veteran's hearing loss is sufficient to meet such criteria is not amenable to lay observation. Therefore, while the failure to meet such criteria at the time of the Veteran's separation from service is not dispositive, it is a factor which militates against the Veteran's claim. This is particularly true in light of the fact that during service, there were no complaints or clinical findings of a hearing loss disability or tinnitus. Moreover, during his service separation examination, the Veteran responded "No", when asked if he then had, or had ever had, a hearing loss. In this regard, it must be emphasized that contemporaneous evidence has greater probative weight than a history reported by the Veteran. Curry v. Brown, 7 Vet. App. 59, 68 (1994). That is not to say that the Veteran's lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Rather it is a combination of the foregoing factors which militate against the claim. Nonetheless, the Veteran maintains that he experienced difficulty hearing and ringing in his ears in service and that such problems have been present since that time. He maintains that noise exposure in service was consistent with his combat service in Vietnam and that his reports of continuing symptomatology since service, as well as his current diagnosis of a hearing loss disability effectively meet the criteria for service connection, particularly in light of the favorable presumptions afforded combat veterans under 38 U.S.C.A. § 1154(b). That presumption notwithstanding, the veteran must still meet his evidentiary burden with respect to service connection. Although the Veteran contends that he has had hearing loss and tinnitus since service, he did not file a claim of entitlement to service connection for those disorder until 2008, more than 40 years after his separation from service. If he had been experiencing hearing problems and tinnitus during that 40 year interval, it is reasonable to expect that he would have filed an earlier claim. The record shows that he certainly knew how to do so, having successfully prosecuted a claim of entitlement to service connection for malaria during the month he was separated from service. That he did not do so for a hearing loss disability or tinnitus further militates against his claim for those disorders. Such a lengthy time frame without any clinical evidence to support the assertion of a continuity of symptomatology does not provide support for the Veteran's contentions that he experienced continuous hearing loss and tinnitus since service. Again, it militates strongly against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming the Board where it found that Veteran failed to account for the lengthy time period after service for which there was no clinical documentation of the claimed condition). Nevertheless, the Veteran's reports of continuing symptomatology since service were sufficient to trigger the need for a VA examination to determine the nature and etiology of his hearing loss disability and tinnitus. McLendon v Nicholson, 20 Vet. App. 79 (2006). VA audiologic examinations were performed in February and September 2009. While they confirmed the presence of tinnitus and a bilateral sensorineural hearing loss disability under VA criteria, each examiner concurred that it was less likely than not that either disability was related to service. In so saying, the examiners noted not only the Veteran's normal hearing at the time of his separation from service, but also the lack of evidence of tinnitus or a hearing loss disability until the VA examinations. In his substantive appeal (VA Form 9), dated in January 2010, the Veteran found the VA examinations inadequate, because the examiners did not take into account whether the Veteran was a combat Veteran. However, the February 2009 VA examiner clearly noted the Veteran's report that he had experienced excessive noise as a machine gunner and squad leader in Vietnam and that he had not had hearing protection. Moreover, the Board has acknowledged that the Veteran participated in combat and that his noise exposure was consistent with such participation. In addition, the Board notes that VA examinations are scheduled when the medical evidence accompanying a particular claim is not adequate for rating purposes. 38 C.F.R. 3.326(a) (2012). Reexaminations are scheduled whenever VA determines there is a need to verify either the continued existence or the current severity of a disability. Generally, reexaminations will be required if it is likely that a disability has improved, or if evidence indicates there has been a material change in a disability or that the current rating may be incorrect. 38 C.F.R. § 3.327(a) (2012). In this case, however, the medical evidence is adequate for rating purposes as it is consistently negative for any findings of a nexus between the Veteran's hearing loss disability and tinnitus and service. Moreover, there is no evidence of any of the factors which would trigger a reexamination. For these reasons, the request for an additional examination is denied. Taken together, the lack of complaints or clinical findings of tinnitus or a hearing loss disability in service, the lack of complaints or clinical findings of tinnitus or a hearing loss disability for many years after service, the failure to file a claim for either disorder for many years after service, and the negative opinions of the VA examiners, constitute clear and convincing evidence to rebut the presumption that this combat Veteran's tinnitus or hearing loss disability are related to service. Indeed, the only evidence of record supporting the Veteran's claims is his own opinion. However, he has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. In sum, the Veteran does not meet the criteria for service connection for either a hearing loss disability or tinnitus. Therefore, service connection is not warranted for either disorder, and the appeal is denied. In arriving at this decision, the Board has considered the doctrine of reasonable doubt. However, that doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves the claim. In this case, there is clear and convincing evidence is against the Veteran's claims. Therefore, the doctrine of reasonable doubt is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to hearing loss disability is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs