Citation Nr: 1315928 Decision Date: 05/15/13 Archive Date: 05/15/13 DOCKET NO. 12-08 858 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for otitis externa. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Sherrard, Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from February 1967 to February 1969. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a March 2011 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a February 2013 videoconference hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims folder. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran experienced acoustic trauma in service. 2. The Veteran did not sustain a disease or injury (other than acoustic trauma) of the right ear in service. 3. Symptoms of right ear hearing loss were not chronic in service. 4. Symptoms of right ear hearing loss did not manifest to a compensable degree within one year of separation. 5. Symptoms of right ear hearing loss were not continuous since service separation. 6. The Veteran's right ear hearing loss disability was not related to his active service. 7. Symptoms of tinnitus were chronic in service. 8. The Veteran's tinnitus is causally related to his active service. 9. At the February 2013 videoconference hearing before the undersigned, prior to the promulgation of a decision in the appeal, the Veteran indicated that he wished to withdraw his appeal on the issue of service connection for otitis externa. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss are not met. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2012). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus are met. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 3. The criteria for withdrawal of an appeal by the Veteran have been met with regard to the issue of service connection for otitis externa. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also 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). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as organic diseases of the nervous system (e.g., sensorineural hearing loss and tinnitus), to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). 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). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2). The Court has emphasized 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 continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of a veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 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. Also, the threshold for normal hearing is between 0 and 20 decibels, and higher threshold shows some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran 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 claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection for Right Ear Hearing Loss The Veteran contends that his current right ear hearing loss is related to acoustic trauma during active service. Specifically, he avers that he was exposed to the noise of various weapons, including M14 and M16 rifles, during basic training, advanced individual training, and an eleven-week leadership course, without any hearing protection. Moreover, because he is right-handed, he testified at the Board hearing that the noise of the weapons was always in his right ear. In addition, he testified that he worked in the motor pool and was exposed to the noise of generators at Fort Hood. The Board finds that the evidence demonstrates that the Veteran was exposed to acoustic trauma in service. His DD Form 214 shows that he received an Expert Rifle Badge and participated in a leadership prep course. Additionally, the form indicates he worked with armored personnel carriers. Thus, the Board finds his contentions regarding military noise exposure to be credible. Next, after a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence demonstrates that, other than acoustic trauma, the Veteran did not sustain an injury or disease of the right ear during active service, and that symptoms of right ear hearing loss were not chronic during active service. In short, service treatment records do not demonstrate right ear hearing loss complaints, findings, diagnosis, or treatment. At the January 1967 enlistment examination, an audiogram revealed puretone thresholds of 15, 10, 10, and 10 decibels in the right ear at the frequencies 500, 1000, 2000, and 4000 Hertz (Hz), demonstrating normal hearing. (Note: Prior to November 1, 1967, service department audiometric test results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison in this decision, for service department audiometric test results through October 31, 1967, the ASA standards have been converted to ISO-ANSI standards.) At an October 1968 periodic examination, four months prior to separation, an audiogram revealed puretone thresholds of 0 decibels in the right ear at the test frequencies of 500, 1000, 2000, and 4000 Hz, demonstrating no loss in hearing acuity. In fact, hearing acuity in the right ear was measured to be better than at the time of enlistment. At the separation examination in December 1968, the Veteran checked "no" next to "hearing loss" on his Report of Medical History, and it was noted that he did not have any medical problems. The Veteran's failure to report any hearing loss at the time of separation provides probative evidence against this claim. The Board also finds that the weight of the evidence demonstrates that hearing loss did not manifest to a compensable degree within one year of service separation. The weight of the evidence demonstrates no hearing loss symptoms during the one year period after service, and no diagnosis or findings of hearing loss of any severity during the one year post-service presumptive period. See 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2012). The evidence shows the first assessment of right ear hearing loss over 40 years after service separation in 2010, as discussed below. For these reasons, the Board finds that right ear hearing loss, first diagnosed in 2010, did not manifest to a compensable degree within one year of service separation; therefore, the presumptive provisions for hearing loss are not applicable in this case. 38 C.F.R. §§ 3.307, 3.309. Next, the Board finds that the weight of the evidence demonstrates that symptoms of right ear hearing loss have not been continuous since service separation. At the December 1968 service separation examination, as discussed above, the Veteran did not report any symptoms of hearing loss, and an audiogram conducted two months prior in October 1968 showed normal hearing. Post-service medical records do not identify a diagnosis of hearing loss until March 2010, when private treatment notes indicate the Veteran reported symptoms of hearing loss and an audiogram was conducted. The audiogram revealed puretone thresholds of 5, 5, 25, 60, and 75 decibels in the right ear at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hz, respectively. Thus, based on the March 2010 audiogram results, the Board finds that the Veteran has a current right ear hearing loss "disability" under the criteria of 38 C.F.R. § 3.385. Although the Veteran has not specifically contended that his right ear hearing loss began during active service, to the extent that his contentions made in the context of the current claim can be interpreted as an assertion that right ear hearing loss began in service and that his hearing loss has continued while in service and following service, the Board finds that, while the Veteran is competent to report the onset of his hearing loss, his recent report of continuous symptoms since service is outweighed by the other, more contemporaneous, lay and medical evidence of record, both in service and after service, and is not reliable. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board finds that the Veteran's statements as to chronic right ear hearing loss symptoms in service and continuous hearing loss symptoms after service are not accurate because they are outweighed by other evidence of record that includes the absence of in-service hearing loss complaints or symptoms; clinical examination at the October 1968 periodic examination which showed normal hearing on an audiogram, the lack of any hearing loss complaints at the December 1968 service separation examination, and the absence of any post-service history, complaints, symptoms, diagnosis, or treatment of hearing loss for decades after service. In weighing the Veteran's statements of continuity of symptomatology made in conjunction with the current claim for VA compensation against the lack of continuity of symptomatology in the record from 1969 to 2010, the Board finds that the absence of contemporaneous medical evidence of continuity of symptomatology for over 40 years is also one additional factor, along with other lay and medical evidence stated above, that the Board has considered in finding that the Veteran's recent statements of continuity are less probative than the other evidence of record on the question of continuity of symptomatology after service. See Buchanan, 451 F.3d at 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). The Board further finds that the weight of the evidence demonstrates that the Veteran's currently diagnosed right ear hearing loss is not related to his active service, specifically including the noise exposure during service. In the February 2011 VA audiological opinion, which weighs against the Veteran's claim, the examiner opined that, even recognizing the Veteran's in-service exposure to noise (which the Board does as well), the Veteran's current right ear hearing loss was less likely as not related to his exposure to noise in service, reasoning that the entrance and exit examinations showed normal hearing, and that the hearing loss was more likely related to occupational noise exposure and presbycusis. The February 2011 VA audiological opinion is of significant probative value because it is factually accurate, as it appears the VA examiner was informed of the relevant evidence in this case, relied on accurate facts, and gave a fully articulated opinion that is supported by a sound reasoning. Based on the evidence of record, the weight of the competent evidence demonstrates no relationship between the Veteran's right ear hearing loss and his military service, including no credible evidence of symptoms of hearing loss during active service or continuity of symptomatology of hearing loss following service separation; therefore, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for right ear hearing loss, and outweighs the Veteran's and Appellant's more recent contentions regarding in-service chronic right ear hearing loss symptoms and post-service hearing loss symptoms. For these reasons, the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Service Connection for Tinnitus The Veteran also contends that his current tinnitus is related to acoustic trauma during active service. As above, the Board finds that the evidence demonstrates that the Veteran was exposed to acoustic trauma in service. Next, after a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence demonstrates that, other than acoustic trauma, the Veteran did not sustain an injury or disease of the bilateral ears during active service, but that the evidence is at least in relative equipoise as to whether tinnitus was chronic during active service. The Veteran's January 1967 enlistment examination report shows a normal audiogram and no complaints of tinnitus. As noted above, an October 1968 periodic examination report shows a normal audiogram and no complaints of tinnitus. Further, the December 1968 separation examination report is negative for any complaints or report of tinnitus. In short, service treatment records do not demonstrate tinnitus complaints, findings, diagnosis, or treatment. However, at the 2013 Board hearing, the Veteran testified that he began experiencing ringing in his ears during active service. The Veteran is competent to testify as to the onset of tinnitus, as it is observable by a layperson. See Jandreau, 492 F.3d 1372; Buchanan, 451 F.3d at 1336. He further testified that he misspoke when he told the 2011 VA examiner that his tinnitus had only begun several years prior. The Board finds the Veteran's testimony to be credible, and there is no reason to doubt his statements as to the onset of his tinnitus. Based on the foregoing, and resolving reasonable doubt in the Veteran's favor, the Board finds that tinnitus was chronic during active service. The Board notes that continuity of symptoms following service separation is only required for service connection when the condition noted in service is not chronic. 38 C.F.R. § 3.303(b). Here, as discussed above, the Board finds that symptoms of tinnitus were chronic in service. Moreover, the Board finds that the evidence is at least in equipoise as to whether the current tinnitus was caused by acoustic trauma during active service. The Veteran was afforded a VA examination in February 2011. The VA examiner reviewed the claims file and conducted an audiological examination and interview of the Veteran, noting the Veteran's in-service exposure to weapons, and post-service exposure to intermittent machinery noise with hearing protection. As noted above, the Veteran told the VA examiner that his tinnitus had been present for several years. The VA examiner opined that the Veteran's tinnitus is less likely as not related to military service, reasoning that his service treatment records were negative for complaints of tinnitus, and that the Veteran did not experience tinnitus in service, as he stated it began several years prior. Thus, the VA examiner stated that the tinnitus was not related to service. Despite the VA examiner's negative nexus opinion, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran's tinnitus had its onset during active service as a result of acoustic trauma. As noted above, the Veteran is competent to state when his tinnitus began. See Jandreau; Buchanan. The Veteran has been consistent in the history he has provided, and there is no conflicting evidence regarding the history of onset of tinnitus (as the Veteran explained that he misspoke when he told the VA examiner his tinnitus had begun several years prior). Moreover, the Veteran used hearing protection in his post-service occupation working with machinery. Therefore, the only source of acoustic trauma in the Veteran's history is his military service. In summary, based on the Veteran's competent statements regarding acoustic trauma during active service and chronic tinnitus during and after active service, with the resolution of reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for tinnitus are met. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Withdrawal of Appeal as to Otitis Externa The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran, through his authorized representative, has withdrawn the appeal as to the issue of entitlement to service connection for otitis externa and, hence, there remain no allegations of errors of fact or law for appellate consideration with regard to that issue. Accordingly, the Board does not have jurisdiction to review the appeal as to the issue of service connection for otitis externa and it is dismissed. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant 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, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the 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, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. With regard to the tinnitus claim, given the full grant of benefits sought on appeal, no conceivable prejudice to the Veteran could result from this decision; therefore, no discussion of compliance with the VCAA is necessary with regard to that issue. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Next, with regard to the hearing loss claim, in a timely June 2010 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, what information and evidence must be submitted by the Veteran, and what information or evidence VA will attempt to obtain. The letter also described how VA determines disability ratings and effective dates. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service private treatment records, a VA opinion, and the Veteran's statements. A VA examination and opinion was obtained in February 2011 with regard to the question of whether the Veteran's right ear hearing loss was related to acoustic trauma during active service. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the February 2011 VA opinion obtained in this case is adequate as to the question of whether the Veteran's right ear hearing loss is related to active service. The opinion was predicated on a full reading of the private and VA medical records in the Veteran's claims file, as well as a complete audiological examination. The VA nexus opinion considered all of the pertinent evidence of record, to include VA treatment records, comprehensive physical examinations, and the statements of the Veteran, and provides a complete rationale for the opinion stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the right ear hearing loss claim has been met. 38 C.F.R. § 3.159(c)(4). Notably, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for right ear hearing loss is denied. Service connection for tinnitus is granted. The appeal as to the issue of service connection for otitis externa is dismissed. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs