Citation Nr: 1313802 Decision Date: 04/25/13 Archive Date: 05/03/13 DOCKET NO. 10-44 419 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from November 1967 to October 1969. He had additional service in the National Guard. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim for service connection for bilateral hearing loss and tinnitus. The issue of service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the Veteran has tinnitus that is etiologically related to military service, to include noise exposure therein. CONCLUSION OF LAW The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided to the Veteran in August 2009. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include the service treatment records, service personnel records, VA medical records, and reports of VA examinations. Several VA examinations have been conducted, and an opinion regarding the etiology of the Veteran's tinnitus was obtained. 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 VA examinations obtained in this case are adequate, as they are based on an examination of the record and a review of the claims folder. The opinion considered the pertinent evidence of record, to include statements of the Veteran regarding the etiology of tinnitus. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. Essentially, all available evidence that could substantiate the claim has been obtained. Analysis The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 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. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. Feb. 21, 2013). Tinnitus is included in 38 C.F.R. § 3.309 as an organic disease of the nervous system. The Veteran asserts service connection is warranted for tinnitus. He claims he was exposed to noise in Vietnam. He reports he has ringing in his ears, but not every day. The evidence supporting the Veteran's claim includes his statements and some of the findings of record. Personnel records show the Veteran's principal duties during his period of active duty were construction and utilities worker, light truck driver, heavy dump truck driver and heavy vehicle driver. His duties while in the reserves were tank loader, tank gunner, tank commander, gunner assistant and tank crewman. The Board concedes, therefore that the Veteran was subjected to acoustic trauma in service. On VA examination in March 2011, the Veteran related he experienced bilateral buzzing-type tinnitus of long-standing. The evidence against the Veteran's claim includes the service treatment records and the post service medical findings of record. The service treatment records are negative for complaints or findings pertaining to tinnitus. Examinations for the reserves in August 1976, September 1980, September 1985 and September 1989 do not reflect any indication of tinnitus and the Veteran answered "no" to whether he had ever had ear, nose or throat trouble on Reports of Medical History dated in August 1976 and September 1989 A VA audiometric examination was conducted in November 2009. The Veteran reported he was exposed to loud noise in service. He denied a current complaint of tinnitus. The Veteran was again examined by the VA in March 2011. He related he believed tinnitus was due to the excessive noise levels he was exposed to while on active duty. He reported he was exposed to artillery fire, mortars and small arms fire in service. He noted he was a welder for 30 years after service. He stated he experienced bilateral buzzing type tinnitus of long-standing duration. He acknowledged tinnitus was not constant and that he could not state how frequently it occurred. The diagnosis was tinnitus. The examiner commented he was unable to resolve the question of whether tinnitus was related to noise exposure without resort to speculation. He observed that the Veteran's hearing was within normal limits upon separation. He added that considering the type of noise exposure he had as a welder after service, it cannot be opined without resorting to speculation whether the Veteran's tinnitus was caused by service or his civilian occupation. Under the law, "[a]n examiner's conclusion that a diagnosis or etiology opinion is not possible without resort to speculation is a medical conclusion just as much as a firm diagnosis or a conclusive opinion... however, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence." In order to rely upon a statement that an opinion cannot be provided without resort to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record. Jones v. Shinseki, 23 Vet. App. 382 (2010). In this case, the examiner explained a definitive opinion regarding the etiology of tinnitus was not reached because the Veteran had noise exposure as a welder following service. As the examiner provided an explanation for the determination that an opinion could not be reached as to whether the Veteran's tinnitus is related to service, the Board finds the opinion to have some probative value. The examiner has adequately explained why an opinion could not be reached without resort to mere speculation. See Jones, 23 Vet. App. 382. If the question of etiology cannot be determined without resorting to speculation, then it has not been proven to the level of equipoise. Chotta v. Peake, 22 Vet. App. 80, 86 (2008) (Board may not award benefits when the award would be based upon pure speculation); see also Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed. Cir. 2009) ("[t]he examiner's statement, which recites the inability to come to an opinion, provides neither positive nor negative support for service connection. Therefore, it is not pertinent evidence, one way or the other, regarding service connection"). As such, the Board finds that the evidence does not weigh in favor of the claim. In the absence of any indication of tinnitus for years after service, the Board finds that the objective medical evidence of record outweighs the credibility of his reported onset and continuity of symptomatology. Such records are more reliable, in the Board's view, than the Veteran's unsupported and contradictory assertions of the onset of his symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence); see also Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran). It is significant to point out that the Veteran denied having tinnitus at the November 2009 VA examination and the March 2011 VA audiologist did not link the Veteran's tinnitus to service. In sum, there is no evidence of tinnitus in service or for many years thereafter. The Board finds, accordingly, that service connection for tinnitus is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for tinnitus is denied. REMAND The Veteran also asserts his bilateral hearing loss is related to in-service noise exposure. As noted above, the record establishes the Veteran was subjected to acoustic trauma during service. Audiometric examinations during the Veteran's period of active duty, to include the separation examination in August 1969, demonstrate the Veteran's hearing was within normal limits. An audiogram for the reserves in September 1989 disclosed that the hearing threshold levels in decibels were 5, 0, 10, 10 and 25, at 500, 1,000, 2,000, 3,000 and 4,000 Hertz, respectively. At corresponding frequencies in the left ear, the hearing threshold levels in decibels were 10, 5, 10, 30 and 35. Thus, this test demonstrated the Veteran had hearing loss in the right ear and hearing loss disability in the left ear. See Hensley v. Brown, 5 Vet. App. 155. On VA audiometric examination in November 2009, the examiner reviewed the claims folder and acknowledged the September 1989 examination revealed the Veteran had a mild hearing loss in the left ear. Following the examination, the diagnosis was bilateral sensorineural hearing loss. The examiner stated that if she considered only his active duty, then the Veteran had normal hearing at separation. Therefore, she concluded the Veteran's hearing loss was not caused by or a result of in-service noise exposure. The law does not require evidence of a hearing disability in service. Instead, there need only be a basis for attributing the current disorder to an injury in service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); see also Hensley, 5 Vet. App. at 159. Thus, since the examiner's opinion essentially was predicated on the fact the Veteran's hearing was normal at separation, it is not an adequate opinion. While the record shows the Veteran had service in the reserves, his periods of active duty for training have not been confirmed, nor has any attempt been made to obtain any medical records from such service. Accordingly, the case is REMANDED for the following action: 1. Verify the Veteran's periods of active duty for training. 2. Contact the Veteran and request he provide information concerning any treatment he received for complaints of tinnitus during any period of active duty for training. Thereafter, attempt to obtain any records referred to by the Veteran. 3. After completion of the foregoing, send the claims folder to the examiner who conducted the November 2009 VA examination. Request that she provide an opinion concerning whether it is at least as likely as not (50 percent probability or higher) that the Veteran's hearing loss is related to noise exposure in service or a period of active duty for training. The rationale for any opinion should be set forth. If the examiner is not available, schedule a VA audiometric examination, and request the examiner provide the requested opinion. 4. Following completion of the above, the RO should review the evidence and determine whether the Veteran's claim may be granted. If not, he and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs