Citation Nr: 1317306 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 12-27 381A ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for tinnitus. ATTORNEY FOR THE BOARD J.M. Seay, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1955 to July 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. Jurisdiction over the appeal currently resides with the RO in Des Moines, Iowa RO. The Board notes that the Veteran submitted an additional statement and a copy of a service personnel record to the Board following the September 2012 statement of the case without a waiver of initial RO review of this evidence. However, the service personnel record only shows APO orders for the Veteran and is not relevant to the issue on appeal. With respect to the Veteran's statement, it is essentially duplicative of the Veteran's prior statements regarding his in-service noise exposure. Therefore, a waiver of initial RO review of this evidence is not required. See 38 C.F.R. § 20.1304 (2012). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Right ear hearing loss did not manifest in service and sensorineural hearing loss is not manifest within one year thereafter, and the most persuasive and credible evidence of record shows that the Veteran's right ear hearing loss is not causally or etiologically related to an in-service event, injury, or disease and did not have its onset in active service. 2. The most persuasive and credible evidence of record shows that the Veteran's tinnitus is not causally or etiologically related to an in-service event, injury, or disease and did not have its onset in active service. CONCLUSIONS OF LAW 1. The criteria are not met for service connection for right ear hearing loss. 38 U.S.C.A. §§ 1110, 1131, 1112, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012). 2. The criteria are not met for service connection for tinnitus. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). The June 2010 letters satisfied the duty to notify provisions and notified the Veteran of regulations pertinent to the establishment of an effective date and disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As to the duty to assist, the Board finds that VA has secured all available and identified evidence including VA treatment records and private treatment records. The Board acknowledges that the Veteran's service treatment records are fire-related. The RO submitted a request to the National Personnel Records Center (NPRC) in July 2010 requesting all service treatment records. The NPRC responded that the record was fire related and there were no service treatment records or Surgeon General's Office extracts (SGOs). In a May 2010 request, the RO requested separation documents. The NPRC responded that the Veteran served from October 1955 to July 1957. In a November 2010 letter, the Veteran was informed that his service records were unavailable and was asked to submit any records that were in his possession. See McCormick v. Gober, 14 Vet. App. 39 (2000); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Veteran submitted several service personnel records. The Veteran was provided a VA examination in July 2010. The Board finds that the VA examination obtained in this case is adequate as the examiner reviewed the claims file, considered the Veteran's statements, and provided a medical opinion with supporting rationale. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Board notes that the examiner did not provide an opinion in terms of probability with respect to the Veteran's tinnitus. However, the examiner specifically noted the Veteran's hearing loss was less likely related to active service and that the Veteran reported tinnitus with the onset of the left ear hearing loss, which was not related to military noise exposure. Thus, the Board finds that the opinion is adequate. See Barr, id. There is no indication in the record that any additional evidence, relevant to the issue adjudicated in this decision, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). In adjudicating the claim below, the Board has reviewed all of 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 all the evidence submitted by the 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 may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection for organic diseases of the nervous system, such as sensorineural hearing loss, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). VA has specifically defined the term "disability" for service connection claims involving impaired hearing. 38 C.F.R. § 3.385. "[I]mpaired 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, 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 threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See 38 C.F.R. § 3.385; see also Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Right Ear Hearing Loss The Veteran claims that his current right ear hearing loss disability is related to his period of active service, including in-service noise exposure. The medical evidence shows that the Veteran has a current right ear hearing loss disability in accordance with 38 C.F.R. § 3.385. Here, the service treatment records are unavailable. When a Veteran's service treatment records are unavailable, VA's duty to assist and the Board's duty to provide reasons and bases for its findings and conclusions and to consider carefully the benefit-of-the-doubt rule are heightened. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Veteran's DD Form 214 shows that his military occupational specialty (MOS) was "weather observer." The Veteran reported that he was exposed to acoustic trauma when he worked on a flight line during the Korean War. In a June 2010 statement, the Veteran explained that the jet engine noise was deafening and occurred every day while he was on duty. He stated that the fighter jets were constantly warming up and taking off along with cargo planes headed to Korea. The Board notes that the Veteran is competent to describe his in-service noise exposure. In any event, the lack of evidence of hearing loss in service alone is not dispositive, as the Veteran's assertions of noise exposure must receive due consideration. See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The Veteran was provided a VA examination in July 2010. The examiner reviewed the claims file. The Veteran's chief complaint was sudden hearing loss of the left ear, approximately one month ago. The Veteran stated that he likely had hearing loss, to a much lesser degree, in both ears prior to the sudden decline. The Veteran reported experiencing constant tinnitus in the left ear, onset coinciding with the sudden loss. He denied experiencing tinnitus prior. The Veteran denied tinnitus in the right ear. The Veteran reported military noise exposure while serving in the Army. The Veteran stated that he served 24 hour shifts at the end of a runway where he was exposed to incoming/outgoing aircraft noise and hearing protection was not used. The Veteran reported occupational noise exposure as a farmer. The Veteran denied significant recreational noise exposure. The diagnoses included a mild to moderately severe sensorineural hearing loss in the right ear. The examiner opined that it is less than likely that hearing loss for either ear can be contributed to military noise exposure. There were no hearing exams or any type of evidence indicating hearing loss around 1957. One cannot rule out factors such as army guards nor a lifetime occupation as a farmer. The examiner explained that the Veteran denied tinnitus prior to the sudden hearing loss, left ear, which is not related to military noise exposure. In terms of etiology of the Veteran's right ear hearing loss disability, the Board finds that the VA examiner's opinion is the most persuasive evidence. The examiner reviewed the entire claims file including the Veteran's statements regarding his hearing loss. In addition, the examiner noted the Veteran's own reported medical history including his reports of in-service noise exposure. The examiner did not provide a positive nexus opinion. As the examiner's conclusion followed an extensive examination of the Veteran and claims file review, as well as consideration of reported history, it is accorded great probative weight. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (factors for assessing the probative value of a medical opinion include the medical expert's access to the claims file and the thoroughness and detail of the opinion). The Board recognizes the Veteran's belief that his right ear hearing loss disability is related to his period of active service, to include his in-service noise exposure. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of a hearing loss disability, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). While the Veteran is competent to provide statements indicating that he experienced difficulty hearing since service, he cannot diagnose himself with a hearing loss disability or relate his disability to his period of active service as diagnosing a hearing loss disability requires medical and diagnostic testing and identifying a medical etiology for a condition requires medical training. Further, as noted above, the Board attributes great value to the VA examiner's opinion as the examiner reviewed the claims file, examined the Veteran, noted the Veteran's reported history, and provided a negative nexus opinion. Further, the record raises some concern as to the Veteran's credibility and reliability as an accurate historian. Although the Veteran stated in conjunction with the claim for service connection that he had difficulty with hearing since he returned from active service, the evidence of record does not support the Veteran's assertions. The VA treatment records dated from 2002 to 2008 reveal treatment for other disabilities, but the Veteran did not mention experiencing hearing loss or tinnitus. The Board does not find it reasonable that the Veteran would be experiencing hearing difficulty since service and not mention these problems during VA medical treatment. The examiner considered the entire claims file, including the personal interview with the Veteran, and his reported in-service noise exposure, and provided a negative nexus opinion. With respect to continuity of symptomatology, the Veteran has stated that he believes his hearing problems began during active service. In regard to his reports of chronic symptoms since service, the Federal Circuit recently held that continuity of symtomatology under 38 C.F.R. § 3.303(b) only applies to those conditions recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran's disability is diagnosed as sensorineural hearing loss and recognized as a chronic condition. 38 C.F.R. § 3.309(a). Nevertheless, while the Veteran is competent to state that he had difficulty hearing since active service, the Board finds that the Veteran is not credible with respect to his reports related to onset or continuity of symptoms since active service. The Board notes that the service treatment records are fire-related. However, there is no indication of any hearing loss until the 2000s, more than 40 years after the Veteran's separation from active service. Indeed, the Veteran sought VA medical treatment for other ailments from 2002 to 2008 and did not mention any hearing loss. Indeed, the June 2005 VA treatment record shows that the Veteran's ear, nose, and throat ("ENT") were unremarkable. Thus, the Veteran's assertions of continuity of symptomatology are inconsistent with the other evidence in the claims file. See Indiana Metal Prods. v. NLRB, 442 F.2d 46, 51-52 (7th Cir. 1971) (citations omitted) (noting that "definitions of credibility do not necessarily confine that concept to the narrow peg of truthfulness. It has been termed as 'the quality or power of inspiring belief. . . .' Credibility . . . apprehends the over-all evaluation of testimony in the light of its rationality or internal consistency and the manner in which it hangs together with other evidence."). In light of the above, the Board finds that the Veteran's assertion that he had hearing problems since service is not credible, and that service connection based on continuity of symptomatology is not warranted. After considering all the evidence under the laws and regulations set forth above, the Board concludes that the Veteran is not entitled to service connection for right ear hearing loss because the most persuasive and credible evidence of record is against a finding of continuity of symptoms since service and against a finding that there is a nexus between a current hearing loss disability and an event, injury, or disease occurring in service. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for right ear hearing loss. Because the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt provision does not apply. Therefore, the Board concludes that service connection for right ear hearing loss is not warranted. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). Finally, where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss becomes manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In this case, there is no evidence of hearing loss to a compensable degree within one year of separation from service. Therefore, service connection on a presumptive basis is also not warranted. Tinnitus The medical evidence shows that the Veteran is diagnosed with tinnitus. Again, the service treatment records are not available in this case. The Veteran's DD Form 214 shows that his MOS was "weather observer." The Veteran reported that he was exposed to acoustic trauma when he worked on a flight line during the Korean War. In a June 2010 statement, the Veteran explained that the jet engine noise was deafening and occurred every day while he was on duty. He stated that the fighter jets were constantly warming up and taking off along with cargo planes headed to Korea. The Board notes that the Veteran is considered competent to describe his in-service noise exposure. However, the Board finds that the most persuasive evidence of record weighs against service connection. The Veteran was provided a VA examination in July 2010. The Veteran reported experiencing constant tinnitus in the left ear, onset coinciding with the sudden loss of hearing in the left ear. The Veteran reported military noise exposure while serving in the Army and the Veteran stated that he served 24 hour shifts at the end of a runway where he was exposed to incoming/outgoing aircraft noise and hearing protection was not used. The Veteran also reported occupational noise exposure as a farmer. The examiner explained that the Veteran denied tinnitus prior to sudden hearing loss of the left ear, which was not related to military noise exposure. In this case, the Board finds that the most persuasive evidence weighs against service connection for tinnitus. First, there is no recorded treatment history for nearly 40 years following the Veteran's separation from active service. In addition, with respect to his reports of chronic symptoms since service, the Federal Circuit recently held that continuity of symptomatology under 38 C.F.R. § 3.303(b) only applies to those conditions recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Although tinnitus is not listed as a chronic condition, the Veteran is nonetheless not credible with respect to his reports of continuity of symptomatology. Although the Veteran stated that he experienced ringing in the ears in service, during the July 2010 VA examination, the Veteran reported that he did not experience tinnitus prior to the sudden onset of left ear hearing loss approximately one month prior. The lack of consistency in his reporting of his tinnitus history renders his current recollections of the onset of his tinnitus, being made more than 40 years after service, unreliable. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (Board can consider bias in lay evidence, conflicting statements of the Veteran, and the significant time delay between the affiants' observations and the date on which the statements were written in weighing credibility). Therefore, the Veteran's statements regarding the continuity of his tinnitus since service are not credible. In light of the above, service connection due to continuity of symptomatology is not warranted. 38 C.F.R. § 3.303(b). The Board also recognizes the Veteran's statements that his current tinnitus is etiologically/causally related to his in-service noise exposure. The Board acknowledges that the Veteran is competent to provide a diagnosis of tinnitus, i.e., ringing of the ears because it is not a complex medical question. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (noting that lay evidence is competent with regard to facts perceived through the use of the five senses and cautioning that lay testimony that veteran suffered a particular illness, bronchial asthma, was not competent because matter required medical expertise); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify to ringing in the ears (tinnitus) which is capable of lay observation); Jandreau v. Nicholson, 492 F.3d 1372, 1377, Note 4 (Fed. Cir. 2007). However, although the Veteran is competent to diagnose the tinnitus, as noted above, he is not credible with respect to its onset. Furthermore, as the Veteran is not credible with respect to his onset of tinnitus, he cannot opine to the etiology of his tinnitus (i.e. that since it started during active service, it is related to in-service noise exposure). Even if he was competent to render such an opinion as to the etiology of his tinnitus, the Board finds that the VA examiner's opinion is more persuasive - relating it to sudden onset of left ear hearing loss that was not related to active service. After considering all the evidence under the laws and regulations set forth above, the Board concludes that the Veteran is not entitled to service connection for tinnitus because the most persuasive and credible evidence of record does not show continuity of symptoms since service or a nexus to an injury, event, or disease occurring in service. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for tinnitus. Because the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt provision does not apply. 38 U.S.C.A. § 5107(b). Therefore, the Board concludes that service connection for tinnitus is not warranted. ORDER Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs