Citation Nr: 1314645 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 12-06 048 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for left ear pain. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION 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). The Veteran had active military service from March 1945 to January 1947. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2012 the Veteran and his spouse testified before the undersigned Veterans Law Judge at a Travel Board hearing in St. Petersburg, Florida. A transcript of that hearing is of record. FINDINGS OF FACT 1. Left ear pain was not shown in service or until 2006, and was first noted by competent evidence following a post-service blow to the head; there is no competent evidence even suggesting a link between the disorder and service. 2. Hearing loss disability was not shown in service or for many years thereafter, and the most probative medical opinion indicates the current hearing loss disability is not related to service. 3. Competent and credible evidence indicates that tinnitus began in service and has continued since. CONCLUSIONS OF LAW 1. The requirements for establishing service connection for a left ear pain disability have not been met. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 2. The requirements for establishing service connection for a bilateral hearing loss disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). 3. The requirements for establishing service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements were accomplished in letters dated in August and October of 2009. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). The Veteran was apprised of the information and evidence needed to substantiate his claims for service connection, including the information and evidence to be submitted by him and the information and evidence to be obtained by VA. He was also apprised of how disability ratings and effective dates are assigned, and of the type of evidence that impacts those determinations. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file includes service treatment records, service personnel records, VA and private medical records, and hearing testimony. The Veteran was also accorded a VA audiology examination with opinion; and in January 2013 submitted an opinion from a private otolaryngologist. In addition to the foregoing, in November 2012 the Veteran testified before the undersigned Veterans Law Judge regarding his claims. During that hearing the Veterans Law Judge explained the issues and asked the Veteran, who was ably assisted by a veterans' services representative, questions to ascertain the nature of any in-service experiences and symptoms. The Veterans Law Judge also asked questions to draw out the current nature of the Veteran's complaints, and the hearing focused on the elements necessary to substantiate his claims for service connection. On request, the record was held open for 60 days to allow the Veteran an opportunity to obtain a medical nexus opinion, which the Veteran did obtain, and which is in the claims file. Neither the Veteran nor his representative has suggested any deficiency in the conduct of the hearing, and all pertinent evidence that might substantiate the claims was identified by the Veteran and has been obtained. Therefore, the Board finds that, consistent with Bryant v. Shinseki, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). See Bryant v. Shinseki, 23 Vet. App. 488 (2010) (holding that 38 C.F.R. § 3.103(c)(2) requires that a Veterans Law Judge fully explain the issues and suggest the submission of evidence that may have been overlooked during Board hearings). As discussed above, VA has considered and complied with the provisions of the VCAA. The Veteran was an active participant in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). See also Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). II. SERVICE CONNECTION Service connection may be established 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. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic disability manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Additionally, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and an organic disease of the nervous system becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. §§ 3.307(a), 3.309(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The Board, as fact finder, must determine the probative value or weight of the evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). The Board has reviewed all the evidence in the record. 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 claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). A. Left ear pain As regards the claim for left ear pain, service treatment records contain no record of any ear complaints; and, indeed, the Veteran does not now allege any such incurrence. Instead, he suggests in a September 2009 letter that his left ear pain, which he admits began in 2006, somehow relates back to service. Unfortunately, this is not borne out by the evidence of record. Private medical records dated in September 2006 note the Veteran's report of head trauma some two months prior, when the Veteran was hit in the external left ear with a racquetball. There is no lay or medical evidence of left ear pain prior to 2006. A VA treatment report from December 2009 noted the Veteran denied ear pain. The Veteran did not complain of ear pain on his VA examination. During his hearing, the Veteran testified that he did not suffer from left ear pain during service. Rather, the left ear pain arose after service, and he sought treatment for ear pain several years ago. He could not recall a diagnosis and indicated that no doctor indicated it was related to service. With regard to the claim for left ear pain, there is no competent evidence indicating a current disability manifested by left ear pain even exists. The Veteran denied left ear pain on a December 2009 VA outpatient report, and did not mention ear pain during his VA examination. Even during his hearing, the testimony suggests the condition resolved. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110; 1131. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C.A. § 1131 requires existence of present disability for VA compensation purposes); see also Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). Here, the Veteran does not contend that he had left ear pain in service, nor do the service treatment records suggest such. The Veteran concedes the condition began after service, but that no medical professional has linked it to service. The Veteran's argument for the claim for service connection was an inability to recall any incident which may have caused the ear pain. However, private treatment records dated in September 2006 indicate that he was hit in the left ear by a racquetball. While during his hearing he alleged the ear pain occurred 15 to 20 years previously, on his September 2009 statement he alleged the left ear pain began in 2006. There is also no medical evidence that even suggests the Veteran has a disability manifested by left ear pain that is related to service. While the Veteran is competent to describe his symptoms and experiences, it is not argued or shown that he is qualified through specialized education, training, or experience to offer a medical diagnosis regarding the ear or to opine as to the etiology of such. In this regard, whether left ear pain first arising decades after service is related to an in-service event requires medical expertise to determine. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Upon review of the record, the preponderance of the evidence indicates that the Veteran did not have left ear pain in service and that he first experienced such decades after discharge from service. During the course of the claim, there is no evidence indicating that he currently suffers from left ear pain, and there is no diagnosis of any disability causing left ear pain. Pain alone without a diagnosed or identifiable underlying malady or condition does not in and of itself constitute disability for which service connection may be granted. Sanchez- Benitez v. West, 13 Vet. App. 282, 285 (1999) appeal dismissed in part, and vacated and remanded in part, Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). In short, there is simply no competent and probative evidence indicating that the Veteran suffers from a left ear pain disability that is related to service. The Board acknowledges that the Veteran has not obtained a VA medical opinion or examination with respect to this issue. However, there is no evidence of the condition during service, no evidence indicating a current disability exists, and no competent evidence suggesting that any post-service left ear pain is related to service. Accordingly, a VA examination is not required. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet App. 79, 81 (2006); see also Duenas v. Principi, 18 Vet. App. 512 (2004). 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) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). B. Hearing loss With regard to the claim for service connection for hearing loss, the Veteran reports that he worked for over a year in the engine room of a ship during service, without any hearing protection. During his 2012 Board hearing, he testified that he worked "down in the jowls of the ship with all the engines, compressors, and condensers, all of the noise you could think of." He adds that he had no loud noise exposure after service and that he worked as an engineer for Chrysler. Hearing loss for the purpose of VA disability compensation is considered 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. In Hensley v. Brown, 5 Vet. App. 155 (1993), the Court noted that 38 C.F.R. § 3.385 "does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service . . . a veteran may still establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley, at 159-160. Service treatment records reveal no complaints or findings of hearing loss. Testing during service found bilateral hearing of 15/15 via whispered voice method. The separation examination also noted hearing of 40/40 via watch, 20/20 via coin click, and 15/15 via spoken voice as well. In September 2006 the Veteran underwent a hearing test at a private facility. Testing was not interpreted from graph form but appears to show puretone thresholds worse than 40 decibels in both ears at some frequencies between 500 and 4000 Hertz. The diagnosis was mild to moderately severe high frequency sensorineural hearing loss, both ears. An electronystagmoraphy (ENG) test in October 2006 was normal. Similar audiological findings were noted in private audiological testing in July 2009 and October 2011. In February 2012 the Veteran was accorded a VA audiology examination. Audiology testing found puretone thresholds, in decibels, as follows: Hertz 500 1000 2000 3000 4000 Right ear 20 15 40 55 70 Left ear 15 15 60 65 55 The Maryland CNC Word List Recognition scores were 96 percent in the right ear and 92 percent in the left ear. The diagnosis was bilateral sensorineural hearing loss. After taking the Veteran's reported history and reviewing the claims file, the examiner opined that the Veteran's hearing loss was not likely related to service. The examiner explained that the Veteran reported the onset of difficulty hearing in 1990, 33 years after service, and that hearing loss related to noise exposure is known to have an onset immediately following the damaging noise exposure. Thus, the examiner concluded that in light of the reported onset of hearing loss being years after service, no nexus between current hearing loss and service is found. During his hearing, the Veteran did mention experiencing some plugging of his ears after being in the boiler room, but indicated that hearing would return to normal after leaving the boiler room. Both the Veteran and his wife testified that they first noticed his hearing loss many years after discharge from service, with the Veteran stating it began around 2000 and his wife indicated it began 10 years prior to that. In an opinion dated in January 2013 an otolaryngologist completed a form wherein he stated that he had reviewed the Veteran's service treatment records and post-service treatment records, and that the Veteran has bilateral severe sensorineural hearing loss. The otolaryngologist indicated the Veteran's high frequency hearing loss is most likely related to his noise exposure during military service. In the space for a rationale to be provided, the physician essentially restated the opinion. Upon review of the record, the Board finds that the preponderance of the probative evidence is against the claim. While service treatment records do not reveal hearing loss during service, the only gauge of the Veteran's hearing capacity during service was subjective testing, which the VA examiner noted is not sensitive to high frequency hearing loss. Thus, such evidence does not definitively establish that the Veteran's high frequency hearing was normal during service. While the Veteran mentioned during his hearing that he experienced temporary plugging in his ears that normalized after leaving the noisy area, he has never argued that he experienced continued hearing loss during service or in the years immediately following service. Rather, he and his wife have competently and credibly reported that hearing loss was first noted on or after 1990, decades after discharge from service. Therefore, the question in this case is whether the current hearing loss is related to the Veteran's service, to include his excessive noise exposure therein. On this question, there is an opinion against the claim and an opinion in favor of the claim. The Board notes that in January 2013 a private otolaryngologist completed a form noting that he reviewed service treatment records and post service treatment records and concluded that the Veteran's bilateral severe sensorineural hearing loss most likely was caused by or a result of noise exposure during military service. However, the rationale provided essentially restated the opinion, but suggesting that it was due to the Veteran's prolonged military service. The Board notes the Veteran had less than two years of military service. In any event, the physician did not explain why he believed hearing loss first noted decades after service is related to noise exposure in service. Thus, this opinion is afforded minimal probative weight. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Conversely, the 2012 VA examiner considered the service treatment records and the Veteran's reported history when rendering his opinion, and explained that hearing loss related to noise exposure is known to have an onset immediately following the damaging noise exposure. As such opinion was based on a review of the claims file, considered the Veteran's reported history, and provided a rationale for the conclusion reached, it is afforded great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). To the extent the Veteran and his wife contend that his hearing loss is related to noise exposure during his military service, there is no indication that they have specialized training in diagnosing audiological disorders or determining their etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis of sensorineural hearing loss requires medical testing to identify, and such disability can have many different causes, thereby requiring medical expertise to determine the etiology. Thus, the Veteran and his wife's own opinions regarding the etiology of his hearing loss are not competent medical evidence. The Board accords significantly greater probative weight to the opinion of the VA examiner. Accordingly, upon consideration of the record, the Board finds that the preponderance of the probative evidence is against the claim for service connection for bilateral sensorineural hearing loss. 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) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). C. Tinnitus As regards the claim for tinnitus, the Veteran presently complains of recurrent ringing in his ears, which the VA audiology examiner duly noted and did not dispute. The record thus contains competent and credible evidence of a current tinnitus disorder. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that ringing in the ears is capable of lay observation). The issue then is whether there is a relationship to service. During his 2012 Board hearing, the Veteran testified that his tinnitus symptoms first began during service. He testified that he worked around extremely noisy engines in the bowels of a ship, and recalled that he would have ringing, or like a whooshing sound, or feeling like his ears were plugged up, when leaving the engine rooms. Additionally, the Veteran testified that this was his everyday routine so he became accustomed to it, and that he really did not notice that he had a particular problem until his entry, immediately after service, into the relative calm and quiet of college classrooms. The Board finds the Veteran's assertions of his experiences and symptoms during service are consistent with the circumstances of his service in a ship's engine room and are credible and persuasive. Although the May 2007 examiner documented the Veteran as reporting the onset of his tinnitus as the 1950s, during his 2012 Board hearing the Veteran testified under oath that he recalled having ringing in his ears while on active duty and since service. The Board finds no reason to doubt the veracity of the Veteran's testimony since the Veteran was exposed to tremendous engine room noise during service and any alleged ringing in the ears during that time would be consistent with that exposure. The Veteran is competent to testify as to the observable aspects of tinnitus. As tinnitus is a diagnosis based on purely subjective complaints, the Board may accept his statements in this regard. Indeed, in Barr v. Nicholson, 21 Vet. App. 303, 305 (2007), the Court held that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continued symptoms since service sufficient to establish service connection. Id. Upon consideration of the record, and after resolving all doubt in the Veteran's favor, the Board finds that the Veteran's competent and credible testimony supports a finding that his tinnitus began in service and has continued since. Accordingly, service connection for tinnitus is therefore warranted. 38 C.F.R. §§ 3.102, 3.303. ORDER Service connection for a left ear pain is denied. Service connection for a bilateral hearing loss disability is denied. Service connection for tinnitus is granted. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs