Citation Nr: 1315909 Decision Date: 05/15/13 Archive Date: 05/15/13 DOCKET NO. 09-15 908 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from February 1962 to February 1965. This appeal comes before the Board of Veterans' Appeals (Board) from a November 2008 rating decision by the Nashville, Tennessee Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO denied service connection for hearing loss and tinnitus. The Board has reviewed both the Veteran's physical claims file and the Veteran's file on the Virtual VA electronic file system, to ensure a total review of the evidence. The issue of an earlier effective date for a total disability rating based on individual unemployability (TDIU) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Disabling hearing impairment noted on the Veteran's service entrance examination did not increase during service. 2. The Veteran did not report experiencing tinnitus during service nor until many years after service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred or aggravated in service. 38 U.S.C.A. §§ 1111, 1131, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.385 (2012). 2. Tinnitus was not incurred or aggravated in service. 38 U.S.C.A. §§ 1131, 5107; 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Hearing Loss and Tinnitus The Veteran contends that he has bilateral hearing loss and tinnitus that began during service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection for certain chronic diseases, including neurological disorders such as sensorineural hearing loss, may also be established based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For VA disability benefits purposes, 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. The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). Decibel losses recorded on service department audiological examinations prior to November 1, 1967, are assumed to be measured in American Standards Association (ASA) units, and are converted to International Organization for Standardization (ISO) units to facilitate comparison of results. In the Hensley case, the United States Court of Appeals for Veterans Claims (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." 5 Vet. App. at 159. The Court explained that: [W]hen audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. 5 Vet. App. at 160. A veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted on entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. The United States Court of Appeals for Veterans Claims (Court) has explained that, in general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court has stated that, under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. 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. Military audiograms conducted prior to November 1967 were reported in American Standards Association (ASA) units. VA used ASA units prior to July 1966, but in July 1966 VA adopted International Organization for Standardization (ISO) units. The military began using ISO units in November 1967. The current VA definition for a hearing loss disability found at 38 C.F.R. § 3.385 is based on ISO units. Any military audiograms conducted prior to November 1967 must be converted from ASA to ISO units. On the Veteran's service entrance medical examination in February 1962, hearing testing showed (converted from ASA to ISO units): HERTZ 500 1000 2000 3000 4000 RIGHT 30 20 25 n/a 55 LEFT 25 20 20 n/a 55 In February 1964, the Veteran received outpatient treatment after having been beaten about the head and hit with a chair. He indicated that he had not lost consciousness. Skull x-rays showed no fracture. In a medical history completed in December 1964 the Veteran reported having occasional dizziness with difficulty controlling his muscles while standing. He checked yes for a history of running ears. In a December 1964 examination in preparation for separation from service, hearing testing showed (converted from ASA to ISO units: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 5 5 -5 LEFT 20 0 0 20 0 The Veteran was sent for an ear, nose, and throat (ENT) consultation which was performed the day of the December 1964 separation examination. The Veteran reported having had ear infection about two years earlier. The consulting physician stated that the symptoms of the earlier infection that the Veteran described sounded like bilateral otitis media. The Veteran reported that since the 1962 ear infection he experienced recurrent dizzy spells. The physician observed that the Veteran's tympanic membranes were both slightly scarred but were intact and mobile. The physician noted that audiogram showed hearing that was within normal limits, providing highly probative evidence against his claim. The physician concluded that the Veteran did not have labyrinthine vertigo, and that his dizziness symptoms were most likely functional. The Veteran's service treatment records do not contain any mention of tinnitus, difficulty hearing, nor exposure to noise. The claims file does not contain any records from the year following the Veteran's separation from service. In 1975 and on subsequent occasions, the Veteran sought service connection for narcolepsy or epilepsy. On appeal in February 2004 the Board granted service connection for narcolepsy. Post-service medical records reflect the Veteran's reports that during service he was a drill instructor. He has indicated that after service he worked at Lockheed and at a furniture company until his narcolepsy symptoms became too severe. The claims file contains records of VA medical treatment from 1971 forward and private medical treatment from 1968 forward. In 1968 the Veteran had private treatment for bleeding from the right ear accompanied by a sore throat. The treating clinician observed perforation of the right tympanic membrane. On follow-up the clinician observed some improvement in the condition of the ear drum. On VA examination in November 1991, the examiner indicated that the Veteran's ear drums appeared normal. The examiner checked "no" as to whether hearing loss was noted, probative evidence of some probative value against this claim. In private treatment in November 1999, the Veteran stated that he had 10 percent hearing loss from military service. In May 2008 the Veteran submitted his claim for service connection for hearing loss and tinnitus. He expressed the belief that exposure to weapons during service caused him to have hearing loss and tinnitus. In his November 2008 notice of disagreement, the Veteran asserted that his service in infantry was sufficient to show service exposure to weapons noise and thus warrant a medical examination for a medical opinion. In his April 2009 substantive appeal, he contended that evidence showed hearing loss during service. Testing of the Veteran's hearing at entrance into service showed some hearing impairment. Even when one considers 38 U.S.C. § 1111 and 38 U.S.C. § 1153 and Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004) and Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994), testing later in service did not show disabling hearing impairment. There is no indication that the Veteran complained of difficulty hearing at separation from service nor for many years following service. The medical evidence indicates that the Veteran did not incur disabling hearing impairment during service and that hearing impairment that existed at the time of the entrance examination did not worsen during service. The Board therefore finds that the preponderance of the evidence is against service connection for hearing loss. Records from the time of service do not indicate that the Veteran reported experiencing tinnitus. Even though the Veteran has had extensive neurological treatment over the years, he is not recorded as having mentioned experiencing tinnitus until many years after service. The greater weight of the evidence indicates that the Veteran did not experience tinnitus during service or soon after service. The Board therefore denies service connection for tinnitus. Duties to Notify and Assist 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 (West 2002 & Supp. 2011)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The Court has stated that the requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the 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). Insufficiency in the timing or content of VCAA notice is harmless, however, if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). The RO provided the Veteran with VCAA notice in a May 2008 letter, issued before the November 2008 rating decision denying service connection for hearing loss and tinnitus. That letter addressed the information and evidence necessary to substantiate claims for service connection, increased disability ratings, and a TDIU, and informed the Veteran how VA assigns effective dates. The letter also addressed who was to provide the evidence. The claims file contains the Veteran's service treatment records and post-service treatment records and statements from the Veteran. The Veteran has not had a VA medical examination that addressed his claims for service connection for hearing loss and tinnitus. He contends that a VA examination and medical opinion addressing those claims is warranted. In a claim for disability compensation, VA will provide a medical examination or opinion if the evidence of record does not contain sufficient competent evidence to decide the claim but contains competent lay or medical evidence of a current disability or symptoms of disability, establishes that the veteran suffered an event, injury or disease in service, and indicates that the claimed disability may be associated with the event, injury, or disease in service. 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The evidence from the Veteran's service does not indicate that during service hearing impairment began or worsened, nor that he experienced tinnitus. While the Veteran was clearly exposed to loud noise at some point during service, service records in fact indicate that the Veteran's hearing was somewhat better later in service than it was at entrance into service, which would not support his claim. Nor is there evidence that the Veteran experienced difficulty hearing or tinnitus soon after his separation from service. Further, in extensive treatment after service little reference is made to these problems, which would not support a finding that the claimed disability may be associated with an event, injury, or disease in service, even if the Board assume such a event did, in fact, occur. In the absence of evidence of worsened hearing impairment in service or tinnitus in service, the circumstances do not meet even the low threshold under McLendon for raising a duty for VA to obtain a VA examination or opinion to address the questions of service origin of hearing loss and tinnitus. In any event, the Veteran has had TDIU (100%) for 6 years (July 2007). He filed the claim for hearing loss and tinnitus in May 2008. The Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran has actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he 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 nor to have caused injury to the Veteran's interests. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless, and does not prohibit consideration of his claims on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs