Citation Nr: 1313951	
Decision Date: 04/26/13    Archive Date: 05/03/13

DOCKET NO.  12-02 613A	)	DATE
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On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California


THE ISSUES

Entitlement to service connection for bilateral hearing loss.

Entitlement to service connection for tinnitus.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

Heather J. Harter, Counsel




INTRODUCTION

The Veteran served on active duty from March 1956 to February 1966.

This matter comes before the Board of Veterans' Appeals (Board) from a September 2010 RO decision.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2).


FINDING OF FACT

Bilateral hearing loss and tinnitus were initially manifested many years after service and no nexus to service is shown.


CONCLUSION OF LAW

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


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran contends that his currently-shown bilateral hearing loss and tinnitus were caused by acoustic trauma in the form of noise exposure from airplane engines during service.  He relates that no hearing protection was provided to him during service.  He asserts that he experienced multiple occasions of hearing loss during service, of such severity that he was taken off of flight status because of his hearing loss.


Duties to notify and assist

When an application for benefits is received, VA has certain notice and assistance requirements under the law.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  First, proper notice must be provided to a claimant before the initial VA decision on a claim for benefits and must:  (1) inform the claimant about the information and evidence not of record necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  The VA is also required to inform the Veteran of how the VA assigns disability ratings and effective dates.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  This information was provided in a January 2010 letter, prior to the initial adjudication of the claim.

With regard to the VA examination report which is of record, 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 examination obtained in this case is adequate with regard to the issues decided herein.  The examination report relied upon herein was predicated on a review of the claims folder and the relevant medical records contained therein; contains a description of the history of the disability at issue; and documents and considers the Veteran's complaints and symptoms.  The examiner considered the available pertinent evidence of record, and provided a rationale for the opinion rendered, relying on and citing to the records reviewed.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met.  38 C.F.R. § 3.159(c)(4).  Examination reports are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion.  Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012).

Service treatment records, VA medical records, a private treatment report, and a VA examination report have been obtained and reviewed in support of the Veteran's claim.  

All relevant records and contentions have been carefully reviewed, including all records contained in the Veteran's physical paper file and in his virtual VA electronic file.  The Board therefore concludes that the VA's duties to notify and assist have been met with regard to the matters decided herein.

Standard of review

Once the evidence has been assembled, it is the Board's responsibility to evaluate the record.  38 U.S.C.A. § 7104(a).  When there is an approximate balance of 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; 38 C.F.R. § 3.102.  In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

The Board must consider all the evidence of record and discuss in its decision all "potentially applicable" provisions of law and regulation.  See 38 U.S.C. § 7104(a); Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991).  The Board is also required to provide a statement of reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as to facilitate further appellate review.  See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert, 56 (1990).  To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).

Analysis

Generally, service connection may be granted for any disability resulting from injury suffered or disease contracted in the line of duty, or for aggravation in service of a pre-existing injury or disease.  38 U.S.C.A. §§ 1110, 1131.  Service connection may be established by demonstrating that the disability was first manifested during service and has continued since service to the present time or by showing that a disability which pre-existed service was aggravated during service.  Service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303.

To establish a right to compensation for a present disability on a direct basis, a Veteran 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, 1167 (Fed. Cir. 2004).  

When a chronic disease such as sensorineural hearing loss becomes manifest to a degree of 10 percent within one year of the veteran's discharge from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the veteran's period of service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

The Veteran served for ten years as a pilot in the United States Air Force.  In this capacity, he was medically evaluated for purposes of his flight status upon multiple occasions.  However, his hearing acuity was within normal limits upon each occasion that it was tested during his active service.  

Review of the Veteran's service treatment and personnel records confirms his statement that he was physically disqualified from flying status upon multiple occasions.  However, none of the documentation indicates that he was disqualified on account of hearing loss or tinnitus.  He was disqualified on account of otitis media due to barotraumas upon several occasions.  A November 1964 treatment report reflects that the Veteran reported having a loss of hearing after an aborted flight a half hour previously, but no trauma or noise exposure.  Audiometry revealed decreased levels of bone and air conduction in the right ear.  The diagnostic impression was that the right ear was exposed to more noise than the left ear on that day, so there was a possibility of a temporary decrease due to noise.  There are no further records relating to this incident in the file.

In support of his claim, the Veteran submitted a copy of a private audiogram showing that he has current sensorineural hearing loss.  He has also stated that he requires hearing aids, and his wife has submitted a statement to the effect that he has difficulty hearing in many situations.  Thus, his current hearing loss is established for the record.  See 38 C.F.R. § 3.385.

In the attempt to develop the Veteran's claim, the VA provided him with a VA audiological examination in April 2010.  The Veteran reported that his primary noise exposure was during his military service when hearing protection was not generally used.  Although he worked as a commercial pilot after service, he related that he was mostly inside the cockpit and not subjected to noise in this capacity.  He also reported having constant, bilateral tinnitus which he had gradually become aware of over the past ten years.  Audiometric and speech recognition testing was interpreted as showing moderately-severe profound sensorineural hearing loss in both ears, with fair word recognition in the right ear and good word recognition in the left ear.  The audiologist opined that tinnitus is a symptom associated with the hearing loss.  The audiologist also reviewed the Veteran's claims file, to include his service treatment records and noted that the Veteran's hearing results were completely within normal limits for both ears for all tests conducted during service.  She also noted possibility of a temporary decrease in hearing due to noise in November 1964 as well as episodes of otitis media due to barotraumas.  She emphasized that despite these episodes, all audiological test results were complete normal on both ears on all tests, and concluded that the Veteran's current bilateral hearing loss is less likely than not related to military noise exposure during service.  In support of this conclusion, she noted that there is no evidence of an onset of hearing loss in service or within a reasonable time after active service, and that there was no indication of tinnitus during service or until about ten years ago.  Therefore, she concluded that tinnitus is less likely related to military noise exposure and is more likely related to the currently-shown sensorineural hearing loss.

Assuming that otitis media may have caused temporary hearing loss, the Veteran's recollection is consistent with the evidence in his file.  However, temporary conductive hearing loss caused by an acute infection is not the sort of chronic disability which is subject to service connection.  The noise-related temporary loss demonstrated in the Veteran's right ear in November 1964 is also not the type of chronic, ongoing disability for which service connection is granted, because it was temporary in nature.  In the language of Shedden, although the Veteran has established present disabilities of hearing loss and tinnitus, and he had an in-service disease or injury; no causal relationship between the present disabilities of sensorineural hearing loss and tinnitus and the in-service otitis media or the in-service temporary noise-related loss is shown.  Additionally, the record as it stands reflects a many year-gap of several decades before the Veteran initially complained of hearing loss and tinnitus.  This lengthy period without treatment, post-service, weighs heavily against the claims.  Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).  The Board must consider all the evidence, including the availability of medical records, the nature and course of the disease or disability, the amount of time that elapsed since military service, and any other relevant facts in considering a claim for service connection.  Maxson; Dambach v. Gober, 223 F.3d 1376 (Fed. Cir 2000).  Given the facts before the Board, we can only conclude that his currently-shown sensorineural hearing loss did not initially manifest until many years after service.

In summary, the preponderance of the evidence is against the Veteran's claim for service connection for bilateral hearing loss and tinnitus.  Neither hearing loss nor tinnitus is shown to have initially manifested during service or for many years thereafter.  No medical nexus linking acoustic trauma during service to the currently-shown hearing loss or tinnitus has been established.  As hearing loss is not shown within one year of the Veteran's discharge from service, it cannot be presumed under law to have been incurred during service.  No other theory of entitlement has been proffered or is apparent.  The benefits sought must therefore be denied.





ORDER

Service connection for bilateral hearing loss is denied.

Service connection for tinnitus is denied.




____________________________________________
Mark W. Greenstreet
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs