Citation Nr: 1315562 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 09-09 222 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from January 1961 and January 1964. These matters come on appeal before the Board of Veterans' Appeals (Board) from rating decisions rendered in July 2006 and January 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In November 2012, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder ." FINDINGS OF FACT 1. The evidence of record shows that hearing loss was not present in service or until years thereafter and is not etiologically related to service. 2. The evidence of record shows that tinnitus was not present in service or until years thereafter and is not etiologically related to service. CONCLUSIONS OF LAW 1. The evidence of record shows that hearing loss was not incurred in or aggravated by active military service and service incurrence may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). 2. The evidence of record shows that tinnitus was not incurred in or aggravated by active military service and service incurrence may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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, 5126 (West 2002 & Supp. 2012) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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; and (3) that the claimant is expected to provide. 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 United States 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 December 2005 letter, issued prior to the initial adjudication of the claims, the RO notified the Veteran of the evidence needed to substantiate his claims for service connection. The letters 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. 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 claim in a March 2006 letter. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim, as was done here. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). The Duty to Assist 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). The VCAA also provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. VA has obtained records of treatment reported by the Veteran, including service treatment records, and VA treatment records. The Veteran has not reported any private treatment. As noted above, the Board remanded the claim in November 2012, to afford the Veteran a VA examination with an opinion on the etiology of his current bilateral hearing loss and tinnitus. The Veteran was afforded a VA examination in January 2013. When VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds the VA examination report and opinion to be thorough and adequate upon which to base a decision with regard to the Veteran's claims. Accordingly, the Board finds that the remand instructions were thereby complied with. Stegall v. West, 11 Vet. App. 268 (1998). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In relevant part, 38 U.S.C.A. 1154(a) 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 United States Court of Appeals for the Federal Circuit (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 at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must then determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestation of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Specific to claims for service connection, impaired hearing is considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Sensorineural hearing loss is subject to service connection based upon continuity of symptomatology as an "organic disease of the nervous system" under 38 C.F.R. § 3.309(a). Any other form of hearing loss, such as conductive hearing loss, is not subject to service connection based upon continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Accordingly, in this case, the Veteran's claims of continuity of symptomatology have been considered and addressed. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2010); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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. Analysis The Veteran contends that he has bilateral hearing loss and tinnitus related to noise exposure during active military service. In written statements of record, he has asserted that he suffered from bilateral hearing loss and tinnitus for at least the last 15 years; that in-service exposure to loud noise during artillery field drills and while firing 150 mm guns had injured his ears; and that his service-issued hearing protection (small earplugs) did not stay in his ears. The Veteran also reported that his hearing gradually became worse in the first few years after his discharge from active service. While service treatment records did not reflect any complaints, findings, or diagnoses of bilateral hearing loss for VA purposes or tinnitus, the Board has also considered the Veteran's statements concerning in-service noise exposure as well as his documented duty assignments, to include the Veteran's military occupational specialty listed as Basic Field Artillery on his DD Form 214. In giving due consideration to the places, types, and circumstances of his service, noise exposure in service is conceded. 38 U.S.C.A. § 1154(a). In-service incurrence of injury is therefore met as to acoustic trauma. The Board also notes that there is no dispute that the Veteran is competent to report hearing loss and tinnitus symptoms he experiences because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran was afforded a VA examination in May 2006, in response to his claim. He again reported military noise exposure while serving in artillery in service. He also reported occupational noise exposure while working as a carpenter in construction for 15 to 20 years. He denied any significant recreational noise exposure. He reported constant, bilateral tinnitus, worse in the right ear, which gradually started approximately 10 to 15 years earlier. The Veteran was diagnosed with moderate to moderately severe sensorineural hearing loss in the right ear and moderate sensorineural hearing loss in the left ear. The examiner, a VA audiologist, noted that the most likely etiology of the tinnitus in view of the Veteran's asymmetrical sensorineural hearing loss (worse in the right ear) may include noise exposure, presbycusis (age-related hearing loss), or potential retrocochlear involvement. She further opined that it was less than likely that the hazardous military noise exposure contributed to the Veteran's current sensorineural hearing loss and complaints of tinnitus, noting that hearing thresholds were within normal limits just prior to service separation. The Board notes that the May 2006 VA examiner did not adequately discuss or consider the Veteran's lay assertions concerning onset or continuity of his claimed disorders. She also seemed to initially identify multiple possible etiologies for the Veteran's claimed bilateral tinnitus. Finally, the examiner appeared to base her opinion that it was less than likely that the hazardous military noise exposure contributed to the Veteran's current sensorineural hearing loss and complaints of tinnitus on the fact that the Veteran's hearing thresholds were within normal limits just before separation from service. The Board again notes the holdings in Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992), Hensley v. Brown, 5 Vet. App. 155 (1993), and Godfrey v. Derwinski, 2 Vet. App. 352 (1992), which reflected that the requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 and for tinnitus, need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted. The regulation does not necessarily preclude service connection for hearing loss and tinnitus that first met the regulation's requirements after service. The Board therefore finds that the May 2006 VA examiner's opinion is inadequate for adjudication purposes. The results of June 2006 auditory brainstem response testing revealed no evidence of retrocochlear lesion. In accordance with the Board's January 2013 remand, the Veteran was afforded another VA examination in January 2013. The examination report noted that service treatment records included a January 1961 reenlistment physical with hearing rated as 15/15 bilaterally with informal whispered and spoken stimuli. They also included a May 1961 Airborne physical and a November 1963 separation physical, showing hearing within normal limits bilaterally and no evidence of a threshold shift occurring in the military. The examiner opined that the claimed hearing loss and tinnitus were less likely as not caused by or a result of military acoustic trauma. His rationale was that while exposure to loud noise from artillery fire often does result in hearing loss, the service hearing evaluations at the time of his Airborne physical when compared to his separation physical indicate no change in his hearing during that service period. Furthermore, there are no evaluation results within a near window of separation to support such a claim. The examiner also noted that no scientific evidence exists to support a claim that a long delayed onset of hearing loss is the result of previous noise exposure. The examiner concluded that the Veteran's hearing loss cannot be tied to his exposure to artillery fire, but is more likely the result of his civilian noise exposure. With regard to his tinnitus, the examiner opined that although the Veteran did serve in a noisy MOS, no evidence of the effects of acoustic trauma are shown by the normal hearing results at separation and no report of tinnitus was made in the service treatment records or were documented within a period of close proximity following his separation. The first competent evidence of hearing loss or tinnitus The January 2013 examiner opined that the Veteran's hearing loss and tinnitus were less likely as not caused by or a result of military acoustic trauma. The Board acknowledges the argument from the Veteran's representative that that the January 2013 examiner's opinion is inadequate because the examiner failed to mention what specific occupational noise exposure the Veteran had and to provide a rationale for his conclusion that the Veteran's hearing loss was more likely related to his civilian noise exposure. See May 2013 Appellate Brief Presentation. The representative also argued that the examination report was inadequate because the examiner did not consider the Veteran's lay assertions regarding the onset or continuity of his claimed disorders. See id. However, the Board notes that, as the representative points out, the Veteran's civilian noise exposure is established from other evidence of record, specifically the May 2006 examination report, which the January 2013 examiner presumably considered since he indicated that he had reviewed the entire claims file prior to rendering his decision. Furthermore, although the examiner may not have provided a rationale for his opinion that the Veteran's hearing loss was most likely related to his reported civilian noise exposure, the examiner did explain why he believed the hearing loss was not related to noise exposure in service, which is the pertinent issue in this appeal. With regard to the Veteran's lay assertions, the Board notes that the examiner did acknowledge the Veteran's reports of exposure to loud noise from artillery fire in service, as well as his claims that his long-delayed onset of hearing loss was the result of previous noise exposure in service. In essence, the Board finds that the VA opinion was based on a full review of the record. Furthermore, the examiner considered the Veteran's history of noise exposure in service, and onset of hearing loss and tinnitus many years after service, along with having a continuity of symptomatology since that time. The opinion is complete and sufficient upon which to base a decision with respect to the Veteran's claims for service connection for bilateral hearing loss and tinnitus. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Veteran's report of a continuity of hearing loss and tinnitus since military service is competent evidence of a continuity of symptomatology. He first reported such continuity, however, years after service and only in connection with the claim for VA compensation. Furthermore, the first contemporaneous evidence of hearing loss and tinnitus in the record is from the May 2006 VA audiogram conducted in response to the Veteran's claims, more than 40 years after his discharge from active service. Furthermore, the January 2013 VA audiologist who examined the Veteran and reviewed the claims folder, has opined that the Veteran's hearing disability and tinnitus are not related to service. There is no contrary medical opinion of record. It would require medical expertise to say that the current hearing loss or tinnitus identified long after service, are the result of in-service noise exposure. The Veteran, as a layperson, is not qualified to render an opinion concerning the medical cause of his hearing loss or tinnitus. 38 C.F.R. § 3.159(a)(1),(2) (2012). Accordingly, the Board concludes that the preponderance of the evidence is against this claim and service connection for bilateral hearing loss or tinnitus on a direct basis is not in order. The Board also notes that without clinical evidence of manifestation of hearing loss to a compensable degree within a year after discharge, presumptive service connection also is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs