Citation Nr: 1314070	
Decision Date: 04/29/13    Archive Date: 05/15/13

DOCKET NO.  10-30 658	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss. 

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	New Jersey Department of Military and Veterans' Affairs


ATTORNEY FOR THE BOARD

W.T. Snyder, Counsel

INTRODUCTION

The Veteran served on active duty from June 1966 to April 1970. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, PA, that denied the benefits sought on appeal.

A Board hearing the Veteran requested was scheduled for October 31, 2012.  Prior to the hearing, however, via an October 2012 telephone conversation with the RO, the Veteran cancelled and withdrew his hearing request.

In addition to the paper file, the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process.  The Board has reviewed the contents of the paperless file, and there are currently no records pertinent to the appeal that are not also in the paper file.

The claim of service connection for tinnitus is addressed in the REMAND portion of the decision below is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

The preponderance of the evidence of record shows the Veteran's currently diagnosed bilateral hearing loss did not have its clinical onset in active service nor is it causally related to his active service.


CONCLUSION OF LAW

The criteria for an award of service connection for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307(a), 3.309(a) (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a).

Under the VCAA, 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim.  Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

The Court Of Appeals For Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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 (2006). 

In a letter issued in August 2009, prior to the initial adjudication of the claim, the RO notified the Veteran of the evidence needed to substantiate his claim for service connection.  The letter also satisfied the second and third elements of the duty to notify by informing the Veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them.  He was informed that VA provided ratings based on the rating schedule, told how effective dates are assigned, and given examples of the evidence he could submit.  Accordingly, no further development is required with respect to the duty to notify.

The Veteran has substantiated his status as a veteran.  He was notified of all elements of the Dingess notice, including the disability-rating and effective-date elements of the claims, by the May 2009 letter.

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. 
§ 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).

VA has obtained records of treatment reported by the Veteran, including service treatment records, and private medical records.  Additionally, the Veteran was provided a VA examination in October 2009 for his hearing loss and tinnitus claims.  The examination reports are of record.

For the reasons set forth above, the Board finds VA has complied with the VCAA notification and assistance requirements.  38 C.F.R. § 3.159.  Hence, the appeal is ready to be considered on the merits.

The Board has reviewed all the evidence in the Veteran's claims file.  Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by an appellant or obtained on his/her behalf be discussed in detail.  Rather, the 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 the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).

Applicable Laws and Regulations

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  

Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d). 

Direct service connection requires evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and, a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). 

Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology.  The provisions of 38 C.F.R. § 3.303(b) only apply to chronic diseases listed under 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, -- F.3d --; No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013).

Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including sensorineural hearing loss as organic diseases of the central nervous system, to a degree of at least 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). 
VA deems a sensorineural hearing loss as an organic disease of the central nervous system.  See VA Under Secretary for Health Memorandum (October 1995); see also 38 U.S.C.A. §§ 1101; 38 C.F.R. § 3.307(a) and 3.309(a).  In light of the VA General Counsel's discussion of tinnitus, the Board deems the Veteran's claimed tinnitus to constitute an organic disease of the central nervous system that is eligible for presumptive service connection.  This means the Board must also consider any evidence of continued symptomatology of either disorder.  See Walker, supra.

In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  

The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).  The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).

Analysis

The Veteran indicated on his formal claim, VA Form 21-526, that his bilateral hearing loss had its onset in 1968.  He indicated on his Substantive Appeal, VA Form 9, that his current hearing loss had bothered him ever since his military service, and he only recently learned that he could seek VA benefits.

At an October 2009 VA examination, the Veteran reported that his Military Occupation Specialty was aircraft engine mechanic, and he was stationed at Vandenberg Air Force Base, CA.  He worked on aircraft engines while other aircraft were running around him.  He also volunteered for missile watch about once a month, where he was exposed to missile noise.  The only time he wore hearing protection was at the firing range for his annual weapon qualification.  He did not remember if he was part of a Hearing Conservation Program.  The Veteran worked in a fiber glass factory his first two years after service.  He was exposed to noise from machinery and he did not wear hearing protection.  From 1974 on, he has worked in retail stores away from factory noise.  He hunted once a year without hearing protection for 10 years from his mid-20s to his mid-30s.  He last hunted in 1989 due to a heart attack.  He first noticed his hearing loss about 10 years prior to the examination-1999, and it had progressively worsened.

The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  See Hensley  v. Brown, 5 Vet. App. 155, 157 (1993).  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 (Hz) is 40 decibels (db) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 db or greater; or, when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  

The Court has held that service connection can be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service.  Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992).  The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service.  Hensley , 5 Vet. App. at 159.

The Veteran's March 1966 Examination for enlistment reflects clinically normal audiometric findings.  


A document in the service treatment records reflects that the Veteran was part of a Hearing Conservation Program while in active service.  An August 1967 annual audio examination revealed clinically normal hearing, as detailed below.  




HERTZ



500
1000
2000
3000
4000
RIGHT
0
5
0
10
15
LEFT
10
10
0
5
10

The report also notes that the Veteran was exposed to the noise of reciprocating engines, and he wore no ear protection.

Service treatment records otherwise note the Veteran's complaints of and treatment for upper respiratory infections and flu-like symptoms.  Physical examinations related to those episodes revealed his ears as clear.  The December 1969 Report Of Medical Examination For Discharge reflects normal ears, and the audiometric findings were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
0
20
15
LEFT
20
15
0
15
15

The Veteran denied hearing loss on his December 1969 Report of Medical History.

Post-service, the October 2009 VA audio examination report reflects the Veteran's hearing manifested as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
70
60
55
75
90
LEFT
65
55
55
75
95

Speech discrimination was 90 percent in the right ear, and 78 percent in the left ear.  Typanograms revealed reduced compliance and significant negative pressure for the left middle ear system, which correlated with the bone conduction scores.  The right ear was normal.  The Veteran denied any history of ear surgery, otalgia, otorrhea, or head trauma.  The examiner diagnosed a moderate to profound mixed hearing loss with good speech discrimination in the right ear and fair speech discrimination in the left ear.  

In light of the diagnosed bilateral hearing loss, the first prong for service connection is shown-a currently diagnosed disorder or disability.

The Board notes the diagnosis of a mixed hearing loss.  As indicated earlier, it is sensorineural hearing loss that is eligible for presumptive service connection.  Nonetheless, the Board infers that "mixed" means the Veteran's hearing loss has some component of a sensorineural hearing loss.  Thus, the Board considers whether the Veteran manifested a hearing loss, at least to a compensable degree, either in service or within one year of his separation.

As noted earlier, the Veteran noted on his Form 21-526 that his hearing loss started in service; and, as noted on his Form 9, he continued to experience hearing loss from that time.  The Board acknowledges that the average lay person is capable of noticing a decrease in hearing acuity.  See 38 C.F.R. § 3.159(a)(2); see also Jandreau, 492 F. 3d 1372.  Further, as set forth above, the evidence of record shows the place and circumstances of the Veteran's service are consistent with his assertion of in-service noise exposure.  See 38 U.S.C.A. § 1154(a).  Hence, if the Board deems the Veteran's assertions credible, they are sufficient to prove his claim.  From the evidence of record, however, the Board finds that the Veteran's assertions are not credible.

The Veteran asserts his hearing loss started in 1968, approximately one year after an audiologic examination showed his hearing to be normal.  Contrary to the Veteran's assertion, however, as noted earlier, he denied any history of hearing loss on his December 1969 report of medical history.  Further, his December 1969 audiologic examination showed normal hearing, as noted by the VA examiner in 2009.  The Board finds the Veteran's actions or statements, his answers on his 1969 report of medical history, closest in time to the claimed event more credible than his claim many years later, when a secondary incentive is present.  Thus, the Veteran's contemporaneous denial of a hearing loss combined with the objective audio examination convinces the Board that the Veteran is not credible when he asserts his hearing loss started in service.  The Board finds likewise as concerns the one-year presumptive period, where-again, the only available evidence is the Veteran's lay assertions.  Notwithstanding the notation on the Form 21-526, and the assertion in the Form 9, the October 2009 VA examination report reflects the Veteran reported the onset of his hearing loss as well beyond one year after his discharge from active service.  The Veteran's reported history at the 2009 examination is patently inconsistent with his earlier assertions but yet consistent with the other evidence of record, e.g., the service treatment records and his exit examination results.  

Hence, the Board finds the Veteran's hearing loss history as reported at the October 2009 VA examination more credible than his assertions of an earlier onset.  Therefore, the preponderance of the evidence shows no hearing loss at the time the Veteran separated or within one year afterwards.  Thus, there is no factual basis for service connection on a presumptive basis.  38 C.F.R. §§ 3.307(a), 3.309(a).  In light of this finding, whatever report of continuous symptomatology the Veteran may report, the Board finds it would be from a date several years removed from April 1971, the one-year anniversary of his separation from active service, and thereby of de minimus significance.  See 38 C.F.R. § 3.303(b); Walker, 708 F.3d 1331.

Turning to the question of direct service connection on a nonpresumptive basis, the October 2009 VA examiner noted the 1966 audiogram upon enlistment to active service; the 1967 hearing conservation audiogram; and, the exit 1969 audiogram, all showing the Veteran's hearing to be within normal limits.  The examiner also noted the Veteran's post-service occupation and recreation noise exposure, and his reported onset of hearing loss was 1999-29 years after his active service.  In light of those factors, the examiner opined it was not at least as likely as not that the Veteran's diagnosed mixed hearing loss was causally related to his active service.  Instead, the examiner opined that the hearing loss may be due to a combination of post-service occupation and recreation noise exposure, the aging process, and the conductive component due to some middle ear pathology unknown at the present time.

In November 2009, the Veteran submitted a report from his private ENT physician, A.J.F., M.D.  Dr. F's September 2009 letter notes the Veteran's service history and that, during the Veteran's active service he developed hearing loss and tinnitus due to his in-service noise exposure.  Based on his physical examination of the Veteran, Dr. F's diagnosis was the same as the VA examiner's, a moderate to profound mixed hearing loss.  Dr. F also noted the typanograms of the tests he conducted were flat and revealed absent reflexes.  Dr. F noted that there was no question that the Veteran's hearing loss was a direct result of his active service.

Initially, the Board finds that, while the Veteran is competent to identify or observe hearing loss, opining on the etiology of it is beyond the training and experience of the average lay person.  See 38 C.F.R. § 3.159(a)(1).  Thus, to the extent that he asserts his personal opinion that his hearing loss is causally connected to his active service, such contentions do not constitute probative evidence.  See Jandreau, 492 F. 3d 1372.

The Board also notes the general literature the Veteran submitted in support of his claim.  In this regard, treatise evidence must discuss generic relationships with a degree of certainty such that under the facts of this particular case there is at least a plausible causality based on objective facts rather than on unsubstantiated lay medical opinion.  See, e.g., Wallin v. West, 11 Vet. App. 509, 514 (1998).  See also Timberlake v. Gober, 14 Vet. App. 122, 130 (2000) (citing Hensley v. West, 212 F.3d 1255, 1265 (Fed. Cir. 2000)).  The Board infers that the VA examiner and Dr. F are familiar with the medical literature.  The Board will now consider the conflicting medical opinions.

In deciding this appeal, the Board must weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others.  Schoolman v. West, 12 Vet. App. 307, 310-11 (1999).  The Board may favor the opinion of one competent medical expert over that of another, provided the reasons for doing so are stated.  Winsett v. West, 11 Vet. App. 420, 424-25 (1998).  Further, while the Board is not free to ignore the opinion of a treating physician, neither is it required to accord it more weight solely on that basis.  See generally Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992).  Courts have repeatedly declined to adopt a "treating physician rule," which would give preference, i.e., additional evidentiary weight, to this type of evidence.  See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001); Harder v. Brown, 5 Vet. App. 183, 188 (1993); Van Slack v. Brown, 5 Vet. App. 499, 502 (1993); Chisem v. Brown, 4 Vet. App. 169 (1993).

Upon review of the evidence of record, the Board accords significantly greater weight to the opinion of the VA examiner.  The Veteran asked on his Form 9 how VA could reject the opinion of an expert ENT physician.  The primary reason, as noted in his letter, is because Dr. F primarily based his opinion on the history the Veteran reported to him, which was that his hearing loss started during his active service.  The Board is fully aware that a medical opinion may not be rejected solely because it is based on a patient's reported history.  See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005).  On the other hand, such an opinion is no better than the accuracy or credibility of the reported history.  See Coburn v. Nicholson, 19 Vet. App. 427, 432-33 (2006).  As discussed earlier, and again incorporated here by reference, the Board deems the Veteran's reported history not credible, which means Dr. F's opinion is entitled to minimal weight-through no fault of his, the Board might add.

Beyond primary reliance on the Veteran's reported history, Dr. F did not provide a rationale for his opinion.  Although Dr. F opined there was no question the hearing loss was the direct result of the Veteran's in-service noise exposure, the only apparent basis for his opinion is the Veteran's reported history.  A medical opinion may not be rejected solely because the physician had no access to the claims file.  See Nieves-Rodriguez, 22 Vet. App. 295.  Access to the claims file is, however, a valid factor for consideration when assessing the weight to accord a medical opinion.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.).  Without access to the claims file, Dr, F was unaware of the Veteran's reported almost-30-year gap between his in-service noise exposure and the onset of the Veteran's hearing loss.  Moreover, the Board must also infer Dr. F was unaware of the audiology examination conducted just prior to the Veteran's separation from service, since he did not mention it.  Access to the claims file aside, however, neither did Dr. F note or discuss the Veteran's post-service noise exposure history or the potential role of the natural aging process.  As set forth above, the VA examiner addressed all of those facets of the Veteran's history.  Hence, the Board finds the VA examiner's opinion more persuasive.  See Nieves-Rodriguez, 22 Vet. App. 295.

For the foregoing reasons, service connection is not warranted for the Veteran's hearing loss in this case.  In so finding, 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)(West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 


ORDER

Entitlement to service connection for bilateral hearing loss is denied. 


REMAND

With respect to the Veteran's tinnitus claim, additional development is required.  Specifically, the Board observes that the VA examiner in October 2009 only provided an express opinion of etiology on the issue of hearing loss.  He did not specifically opine as to the tinnitus.  Accordingly, an addendum to that opinion is necessary.  In so finding, the Board acknowledges that the claims file presently contains a favorable opinion from Dr F in November 2009.  However, as previously explained, such opinion is unaccompanied by any rationale and did not consider all the facts and circumstances of the Veteran's history, to include occupational and recreational exposure to noise following discharge from service.  As such, it is an insufficient basis for an allowance at this time.  The Veteran is free to supplement the record with any additional evidence he feels would support his claim, to include any further opinion from Dr F or any other provider.  

Accordingly, the case is REMANDED for the following action:

1. Return the claims file to the October 2009 VA examiner.  She must expressly state whether it is at least as likely as not that the Veteran's currently diagnosed tinnitus was incurred in or is otherwise related to service.  Any opinion should be accompanied by a clear rationale based on the evidence of record.  If the October 2009 examiner is no longer available to respond, then another comparably qualified examiner may do so in her place, following a review of the claims file.

2. Thereafter, after ensuring any other necessary development has been completed, readjudicate the appellant's claim.  If action remains adverse to the appellant, provide him and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. 

The appellant has the right to submit additional evidence and argument on the matter or matters 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).



____________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs