Citation Nr: 1315254 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 10-30 290 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran served on active duty from March 1946 to March 1947. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In July 2012, the Board reopened previously denied claims of entitlement to service connection for bilateral hearing loss and tinnitus. At that time, the Board remanded the reopened claims to the RO for additional development. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). The decision below addresses the claim of service connection for bilateral hearing loss. The issue of entitlement to service connection for tinnitus will be addressed in the remand portion of the decision below and is remanded to the RO via the Appeals Management Center in Washington, DC. FINDING OF FACT The Veteran's bilateral hearing loss is not related to his active military service. CONCLUSION OF LAW Bilateral hearing loss was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist With respect to the Veteran's claim of service connection for bilateral hearing loss, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Proper notice from VA must inform the veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO's October 2009 letter to the Veteran satisfied the duty to notify provisions relating to the Veteran's claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187; Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In addition to the information and evidence necessary to reopen a previously denied claim, he was notified of the information and evidence necessary to substantiate the underlying service connection claim and of the general criteria for assigning disability ratings and effective dates. The purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of this claim, including the opportunity to present pertinent evidence. The duty to assist the Veteran has been satisfied for this claim. The RO has obtained the Veteran's available service treatment records and his identified VA treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board acknowledges that after several requests for records, it was determined by the RO that the Veteran's service treatment records were largely destroyed in a fire at the National Personnel Records Center in 1973. The Veteran was previously notified of these circumstances in March 2005. VA has a heightened obligation to assist the Veteran in the development of the case, and to explain its findings and conclusions, as well as carefully consider the benefit of the doubt rule when records in the possession of the government are unavailable through no fault of the Veteran. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Veteran has also been afforded a VA examination that is adequate to decide the bilateral hearing loss claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Specifically, pursuant to the Board's July 2012 remand, the August 2012 examiner reviewed the claims file, and took into account the Veteran's statements and treatment records, which allowed for a fully-informed medical opinion regarding this claimed disability. Id. As such, there is no indication in the record that additional evidence relevant to the issue being decided herein is available and not part of the record. See Pelegrini, 18 Vet. App. at 120. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this claim, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. at 473 (2006); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination) (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). II. Analysis Service connection may be granted for disability due to a disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). Service connection for certain chronic diseases, including sensorineural hearing loss, will be presumed if they are manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). In addition to the general service connection provisions, impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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 Veteran contends that he has bilateral hearing loss that is attributable to exposure to loud noise during military service. He acknowledges that he was assigned to be a company clerk during service. The Veteran states, however, that he was pulled from those responsibilities for a time and he acted as a "coach" on the rifle range and firing line during training where he was exposed to loud gun fire. He maintains that any currently diagnosed hearing loss is related to the inservice noise exposure. The evidence of record includes a March 1947 Separation Qualification Record, wherein the Veteran's Military Occupational Specialties were listed as "Basic Engineer" and "Company Clerk." A description was provided as to the related civilian occupations, which read, Prepared and typed military reports, and correspondence. Ordered rations for the company. Made daily routine rosters and passes, did filing and performed various other clerical duties. The Separation Qualification Record also demonstrated that the Veteran underwent nine weeks of Air Compressor Operator's School. An April 1947 separation examination report indicated that the Veteran did not complain of or was treated for bilateral hearing loss or tinnitus. Further, the Veteran's hearing scored 15/15 on a whispered voice test, bilaterally. A September 1996 and January 1999 private treatment record each demonstrated a diagnosis of bilateral hearing loss, but an etiological opinion was not provided that related the hearing loss to the Veteran's active duty service. In September 2000, the Veteran sought treatment through VA as he wanted his hearing loss evaluated that he related to being in the service. An October 2000 VA treatment report indicated that the Veteran reported that he served as a "Combat Engineer" in the Army from 1946 to 1947. The diagnosis was bilateral hearing loss that "may be due acoustic trauma sustained in military service." In an October 2000 statement, the Veteran again stated that he was a Combat Engineer and that he was exposed to noise associated with "weapon fire" and "detonations of land mines and explosives." The Veteran claimed in August 2004 that his bilateral hearing loss had its onset sometime in 1951, but that that he was treated for bilateral hearing loss during his military discharge physical and thereafter. He also explained that he was a "Clerical Soldier," and received "duty on line" with "field assignments." In a contemporaneous statement, the Veteran argued that the audiological equipment in existence at the time of his active duty service was not as accurate or sensitive as it is today. He then reiterated that he was a "Clerk" in an Engineering "outfit," but performed "line duties." In a Request for Information Needed to Reconstruct Medical Data, dated in September 2004, the Veteran asserted that he was treated for hearing loss and tinnitus from May 1946 to July 1947 at "Matigan" General Hospital. He claimed that the hospital "acknowledged [his] hearing loss." A November 2004 VA treatment report demonstrated that he underwent an audiological evaluation. During the evaluation, the Veteran reported that he was a "Combat Engineer" and that he was a "Coach" at a rifle ranging during his active duty service. He also denied post-service noise exposure. An audiogram and consultation report demonstrated bilateral hearing loss. In April 2008, bilateral sensorineural hearing loss was again diagnosed by VA. A September 2009 VA treatment report demonstrated that the Veteran denied participating in the "Battle of the Bulge," but endorsed serving as a Combat Engineer. In order to become a Combat Engineer, the Veteran stated that he underwent 16 weeks of basic training. During this training, the Veteran stated that after one week of instruction with an "M1," he went "deaf" and experienced tinnitus. He said that he reported this to his commanding officers, and he was informed that his hearing would recover in approximately five days, which, as the Veteran reported, it did. He reported post-service work in the insurance industry and as a pension consultant. The diagnosis was bilateral hearing loss, but no etiological opinion was rendered. A private September 2009 audiological examination demonstrated that the Veteran reported serving in the "Battle of the Bulge," he underwent basic combat training, his tinnitus began during his active duty service, and he became a training coach. The diagnosis was bilateral hearing loss. In a contemporaneous letter from the audiologist that conducted the examination, J.D., the Veteran reported participating in the "Battle of the Bulge;" that one of his Military Occupational Specialties was "combat training;" that he worked around demolitions and explosives; that he was a Heavy Equipment Operator; and was exposed to noise associated with high-caliber weapons firing. He endorsed that the onset of his tinnitus was during his active duty service, and denied post-service noise exposure. Following a re-articulation of the audiometric findings and diagnosis, the audiologist opined as follows: It is my opinion that it is more likely than not that [the Veteran]'s hearing loss and tinnitus is [sic] related to his military noise exposure and it may have worsened as a civilian. This opinion is based on case history, configuration of hearing loss, and onset of tinnitus. In his July 2010 substantive appeal, the Veteran vehemently denied ever stating that he participating in the "Battle of the Bulge," saying that he was drafted after it occurred. He then reiterated that he served as a Company Clerk, but was re-assigned to assist in the training of the "firing line." He then stated that he was "continuously exposed" to acoustic trauma, and asserted that he was treated for "severe" hearing loss at "Madigon" General Hospital. VA audiology consultations, dated in September 2010, July 2011, and June 2012 continued to demonstrate bilateral sensorineural hearing loss. The Veteran received treatment with hearing aids for his hearing loss. No etiological opinion was rendered during these consultations. In an April 2012 statement, the Veteran again asserted that the onset of his bilateral hearing loss and tinnitus was consequent to inservice exposure to acoustic trauma while serving as a "Coach" on a rifle range during basic training. He stated that he was treated at "Madigan" General Hospital for said exposure, and that he experienced bilateral hearing loss and tinnitus since his active duty service. In August 2012, the Veteran underwent VA audiological examination in connection with the claim pursuant to the Board's July 2012 remand. Audiometric testing revealed hearing impairment for VA disability purposes. See 38 C.F.R. § 3.385. The examiner provided a diagnosis of bilateral sensorineural hearing loss. After reviewing the Veteran's claims file, the examiner gave the opinion that the Veteran's hearing loss is not at least as likely as not (50 percent probability or greater) caused by or a result of an event in military service. The examiner provided a rationale explaining: [The] Veteran's hearing loss is much worse than would be predicted by [the V]eteran's military experience. [The] Veteran does not have any significant history of noise exposure, in the military or occupationally, other than a period during basic training when he spent three days training other recruits how to shoot an M16 from prone position. On the fourth day, he woke up and couldn't hear in either ear. He was taken to a hospital and told his hearing would come back after 5-6 days. According to him, it did return six days later and he went on to serve about a year in the Army, without additional noise exposure. While exposed to high risk noise during those three days, his current hearing loss would still not be predicted, given that he had no additional exposure reported throughout his life. However, hearing loss was not ruled out at separation. The examiner provided an addendum report in March 2013. The examiner confirmed that the Veteran's claims file was completely reviewed, including his Virtual VA records. The examiner again provided an opinion that the Veteran's hearing loss is less likely than not caused by or the result of an event in the military. An identical rationale was provided. As to whether service connection is warranted, the evidence does not show that the Veteran had chronic bilateral sensorineural hearing loss during service or to a compensable degree within one year of separation from service. Although his service treatment records are largely unavailable, his March 1947 separation examination is of record. The Veteran's hearing was tested as normal and his ears were normal. No defect was noted on the examination report such as hearing loss. A diagnosis of bilateral sensorineural hearing loss is not shown until September 1996, which was nearly 50 years after separation from service. Therefore, the Board concludes that service connection is not warranted for bilateral hearing loss as a chronic disease shown in service or under the provisions of presumptive service connection for chronic diseases. See 38 U.S.C.A. § 1101, 1110, 1112; 38 C.F.R. §§ 3.303, 3.309(a). The Board notes that a showing of a continuity of symptomatology after service for a condition noted during service, but which is not then shown to be chronic, is an avenue to establish service connection. See 38 C.F.R. § 3.303(b). This theory of entitlement applies only to those chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Because sensorineural hearing loss is treated as "other organic diseases of the nervous system" under 38 C.F.R. § 3.309(a), this theory of entitlement potentially applies to the Veteran's case. Here, the Board does not find that the evidence supports a finding of a continuity of symptomatology. First, although there are no service treatment records other than the separation examination, the Board takes the Veteran's statements as credible concerning his inservice experiences regarding noise exposure and hearing loss. He is competent to testify to which he has actually observed and is within the realm of his personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Moreover, the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). This is particularly so given that the Veteran's service treatment records are largely unavailable and he states that he was treated at Madigan General Hospital for hearing problems during service. Thus, the Board finds that the Veteran likely experienced exposure to loud noise with decreased hearing as a coach on the firing range prior to his clerical responsibilities. Even so, continuity of symptomatology is not shown as the Veteran has indicated that his hearing returned after six days and that he did not have additional noise exposure during service. Additionally, the normal March 1947 separation examination weighs against a finding of continuity of symptomatology. Moreover, in August 2004, the Veteran indicated that the onset of hearing loss was not until 1951. Furthermore, as noted previously, the earliest post-service treatment for hearing loss was in September 1996, which was nearly 50 years after service. This is at least a factor weighing against a continuity of symptomatology. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the Veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition). Given this evidence, a continuity of symptomatology of bilateral sensorineural hearing loss has not been shown, at least not until many years after service. Therefore, service connection is not warranted under this theory of entitlement. As such, the salient question presented by the Veteran's claim is whether his current bilateral hearing loss is etiological related to the inservice noise exposure; i.e., whether the nexus element of the claim is met. See Davidson, 581 F.3d at 1313. 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 is also mindful that it cannot make its own independent medical determination, and that there must be plausible reasons for favoring one medical opinion over another. Evans v. West, 12 Vet. App. 22, 31 (1998). The Board may favor the opinion of one competent medical expert over that of another provided the reasons therefore are stated. Winsett v. West, 11 Vet. App. 420, 424-25 (1998). In regard to the October 2000 VA audiogram, the Board accords the opinion little evidentiary weight as the VA audiologist only indicated that the Veteran's hearing loss "may be" due to acoustic trauma sustained in military service. Service connection may not be based on a resort to speculation or even remote possibility. See 38 C.F.R. § 3.102. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The equivocal phrase "may be" is speculative and therefore the October 2000 opinion is of little probative value. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (finding that evidence favorable to the veteran's claim that does little more than suggest a possibility that his illnesses may have been caused by service radiation exposure is insufficient to establish service connection); see also Bloom v. West, 12 Vet. App. 185, 186-87 (1999) (finding that a treating physician's opinion that veteran's time as a prisoner of war could have precipitated the initial development of his lung condition was too speculative). As to the September 2009 opinion from the private audiologist, the Board accords the opinion no probative value. As supporting rationale for the opinion linking the Veteran's hearing loss to military noise exposure, the audiologist indicated that the opinion was based, in part, on case history. This history included the Veteran participating in the "Battle of the Bulge." However, there is no indication that the Veteran participated in the "Battle of the Bulge" and he vehemently denied ever stating so in his July 2010 substantive appeal. Thus, the September 2009 opinion was based on an erroneous case history. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding that medical opinions based on incomplete or inaccurate factual premise are not probative). In contrast, the August 2012 VA examiner reviewed the complete claims file, discussed the Veteran's inservice noise exposure, administered a thorough clinical examination, and provided an extensive rationale for the opinion rendered. The examiner considered the Veteran's statements regarding hearing problems during training in service, but the examiner did not endorse the Veteran's theory of entitlement because the hearing problems resolved six days later. Additionally, the examiner noted that the Veteran's hearing loss is much worse than would be predicted by his military experience. As such, the Board finds that the August 2012 VA examiner's opinion is the most probative evidence as to the etiological relationship between the Veteran's current bilateral hearing loss and his active duty service, to include exposure to loud noise. Schoolman, 12 Vet. App. at 310-11; Winsett, 11 Vet. App. at 424-25. Consequently, the Board is persuaded by the August 2012 VA examiner's opinion and, thus, finds that service connection for bilateral hearing loss is not warranted on a direct basis. Lastly, the Board has considered the Veteran's opinion on the matter whereby he relates his current bilateral hearing loss to his active military service. A valid medical opinion is not required to establish nexus. Davidson, 581 F.3d at 1316. In the Veteran's case, the Board accords little evidentiary weight to the Veteran's lay opinion on the matter and finds the August 2012 VA examiner's opinion probative as to the question of nexus. The examiner is a medical expert and provided a competent medical opinion with the essential rationale for the opinion. The evidence regarding nexus weighs against the claim. Accordingly, service connection for bilateral hearing loss is not warranted as the most probative evidence shows that the Veteran's current bilateral hearing loss is not related to his military service, to include as due to noise exposure. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim of service connection for bilateral hearing loss, the doctrine is not for application. See 38 C.F.R. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER Service connection for bilateral hearing loss is denied. REMAND The Veteran also contends that service connection is warranted for tinnitus as a result of his exposure to loud noise during service. The August 2012 VA examiner also addressed this claim. The examiner noted that the Veteran did not report recurrent tinnitus. The examiner also gave the opinion that tinnitus is less likely than not caused by or a result of military noise exposure because no tinnitus was reported by the Veteran. The August 2012 VA examiner's opinion as to tinnitus is not wholly adequate as it does not take into account the Veteran's report of tinnitus during the pendency of the claim. The current disability element of a service connection claim is satisfied when a claimant has a disability at the time a claim is filed or during the pendency of the claim. McClain v. Nicholson 21 Vet. App. 319, 321 (2007). A claimant may be granted service connection even though the claimed disability resolves prior to VA's adjudication of the claim. Id. Additionally, the presence of tinnitus is capable of lay observation as it is readily identifiable by its features. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). Accordingly, the Board finds it necessary to remand this claim for another etiological opinion that takes into account the Veteran's reports of tinnitus during the claim process. Accordingly, this case is remanded for the following actions: 1. The RO must forward the claims file to the VA audiologist who conducted the August 2012 VA audiological examination. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been re-reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Based on a review of the evidence of record, the examiner must state whether any tinnitus that the Veteran has had during the pendency of the claim is related to his active duty service. Although he did not report tinnitus during the August 2012 VA examination, he reported experiencing tinnitus elsewhere in the record during the pendency of the claim. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. The RO must schedule another examination if the August 2012 VA examiner is not available or if an examination is necessary to answer the question posed above. 2. Finally, after undertaking any other development deemed appropriate, the RO must re-adjudicate the issue of entitlement to service connection for tinnitus. If the benefit sought is not granted, the RO must furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. No action is required by the Veteran until he receives further notice; however, he has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs