Citation Nr: 1317534 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 12-25 105 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran served on active duty in the military from June 1953 to May 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In September 2012, the Veteran requested a Board videoconference hearing; however he withdrew such request in January 2013. In February 2013, the Board remanded the Veteran's appeal to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. As will be discussed herein, the Board finds that the agency of original jurisdiction (AOJ) substantially complied with the remand orders such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. Please note 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. All notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished. 2. Although the Veteran has asserted in-service noise exposure, the record also documents reports of post service noise exposure. 3. Although the Veteran currently has bilateral hearing loss to an extent recognized as a disability for VA purposes, competent, probative evidence indicates that such disability, which was first shown many after the Veteran's discharge from service, is not medically related to service. 4. Competent, persuasive evidence does not establish that the Veteran's claimed tinnitus has existed since service or is etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1101, 1110, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The criteria for service connection for tinnitus are not met. 38 U.S.C.A. §§ 1101, 1110, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran claims that his bilateral hearing loss and tinnitus are related to his service with the United States Army from June 1953 to May 1955. Specifically, he asserts that he attended weapons training on a regular basis during his military service and did not use hearing protection. The Veteran attributes his current bilateral hearing loss and tinnitus to this acoustic trauma. I. VA's 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 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) 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. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, the March 2011, sent prior to the initial May 2011 rating decision that denied the Veteran's claims, advised the Veteran of the evidence and information necessary to substantiate his service connection claims as well as his and VA's respective responsibilities in obtaining such evidence and information. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as written statements provided by the Veteran, his wife, his brother, and his sister were reviewed by both the RO and the Board in connection with the Veteran's claim. The Veteran has not identified any outstanding records that are pertinent to his appeal. He was also provided the opportunity to testify at a hearing before the Board although he declined to do so. The Veteran was afforded VA examination in March 2013 with respect to the issues decided herein. The Board finds that the March 2013 VA opinions are adequate to decide the issues as they are predicated on a review of the claims file, which includes the Veteran's statements, his service treatment records, and post-service treatment records. Additionally, the opinions proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Therefore, the Board finds that the March 2013 opinion is adequate to decide the Veteran's case as the examiner offered clear conclusions with supporting data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). In February 2013, the Board remanded the case for additional development, to include affording the Veteran a VA examination in order to determine the current nature and etiology of his alleged bilateral hearing loss and tinnitus (which was accomplished in March 2013). Therefore, the Board finds that the AOJ has substantially complied with the February 2013 remand directives such that no further action is necessary in this regard. See D'Aries, supra. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a) . Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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, 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 United States Court of Appeals for Veterans Claims (Court) has held that service connection can be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley, supra, at 159. III. Analysis In this case, the service treatment records show that whispered voice tests were conducted during the Veteran's April 1953 enlistment and May 1955 separation examinations, whispered voice tests were found to be 15 out of 15 on both occasions, which is considered to be normal. No audiometric testing was then conducted. No complaints related to the Veteran's hearing or ears were recorded in his service treatment records which are of record. The Veteran's DD-214 documents his military occupational specialty (MOS) as a Personnel Administration Specialist. The Veteran submitted a claim for service connection for bilateral hearing loss and tinnitus in March 2011. There is a May 2011 VA audiometric study in the claims file which shows normal bilateral hearing. However, it is unclear whether the examination was performed in accordance with a VA examination. By rating decision dated in May 2011 the RO denied service connection for bilateral hearing loss and tinnitus and this decision does not refer to the Veteran having been examined. In his February 2012 notice of disagreement, the Veteran stated that his personnel records would have documented his foreign service. He indicated that his unit was stationed in Vienna, Italy for a period of time; where he was exposed to loud noises on a daily basis. He stated that he has experienced significant hearing loss and ringing in his ears since his separation from service. In February 2012 statements, the Veteran's brother and sister reiterated that the Veteran's hearing was noticeably impaired after his separation from service. In his September 2012 substantive appeal, the Veteran reiterated his contentions. He also stated that his MOS involved additional duties. As a result of this additional evidence and a review of the earlier VA examination of record, the Board ordered another audiometic examination of the Veterans. The results of the March 2013 examination provide the earliest evidence of hearing loss. In the audiological evaluation report, the VA examiner noted that the Veteran's claims file was available and reviewed. Audiometric testing performed at that time revealed the following pure tone thresholds, in decibels: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 30 50 60 80 Left Ear 20 40 65 80 Puretone Threshold Average of 1000 Hz - 4000 Hz Right Ear 55 Left Ear 51 Speech Recognition Right Ear 88% Left Ear 72% The VA March 2013 examiner (an audiologist) diagnosed bilateral sensorineural hearing loss. The examiner noted that his review of the claims file included an April 1953 enlistment examination report and a May 1955 separation examination report which were consistent with hearing sensitivity within normal limits for both the right and left ear utilizing a whispered voice test. The examiner noted the Veteran's DD-214 showing an MOS of Personnel Administrative Specialist. The examiner also noted that February 2012 lay statements from J.M.H. (the Veteran's sister) and B.E.B (the Veteran's brother) wherein they indicated that the Veteran's hearing was noticeably impaired after separation from service. The Veteran was accompanied by his wife at the time of the examination and the Veteran's wife reported that the Veteran had Lewy Bodies disease (a form of dementia) and, thus, provided most of the case history information. During the examination the Veteran's wife reported that she did not know the Veteran while he was in the military. Also, while the Veteran was not able to provide any information regarding his time in the military the Veteran's wife reported that she thought that the Veteran had completed rifle training while in the military. The Veteran and his wife reported that the Veteran's did have a post-service history of occupational noise exposure for 10 to 15 years when the Veteran worked in an oil refinery test lab working on computers and gauges. However, the Veteran's wife reported that the Veteran wore hearing protection while in this position. Thereafter, the Veteran worked for Oklahoma State University in maintenance at the power plant in an office position and was not exposed to noise in this position. The Veteran's wife denied a history of recreational noise exposure on his behalf. The Veteran's wife indicated that the Veteran's chief complaint was that he "can't hear." The effects of the Veteran's condition on his daily activities and occupational functioning were that he had difficulty hearing the phone, his family, and the television. The Veteran's wife denied a history of otalgia, otorrhea, previous otologic surgery, use of amplification devices, and middle ear disorder. The Veteran denied a history of head/ear trauma and also denied a family history of hearing loss. The Veteran denied tinnitus. He was specifically asked whether he had any ringing, humming, buzzing, crickets, or other sounds in his ears and he reported that he did not. Upon review of the claims file, to include hearing sensitivity within normal limits at entrance into and discharge from military service utilizing a whispered voice test, DD-214 documents showing an MOS of Personnel Administrative Specialist, and the Veteran's reported history of occupational noise exposure after discharge from military service the examiner opined that it was less likely than not that the Veteran's current hearing loss is due to acoustic trauma during his military service. With regard to the tinnitus issue, during the March 2013 VA audiological examination the Veteran denied tinnitus. He was asked whether he had any ringing, humming, buzzing, crickets, or other sounds in his ears and he reported that he did not. Thus, the examiner opined that it was less likely than not that the Veteran's claimed tinnitus was caused by or a result of military noise exposure as the Veteran denied the presence of tinnitus. It its analysis, the Board has considered the totality of the evidence of record and finds that competent, probative evidence weighs against a grant for the claims of service connection for hearing loss and tinnitus. The first element of service connection is established as the post-service treatment records, beginning in approximately March 2013, reflect that the Veteran has bilateral hearing loss to an extent recognized as a disability, as defined under 38 C.F.R. § 3.385. Likewise, the first element of service connection has been met as the evidence-to include the Veteran's own assertions-supports a finding that the Veteran currently experiences tinnitus. The second element of service connection can be conceded here as the Board acknowledges that the Veteran was exposed to loud noise when is service. However, the record simply does not persuasively establish that there exists a medical nexus between any such current disability and service. The third element of service connection is not established. As noted above, a review of the service treatment records document no complaints, findings, or diagnosis relative to either hearing loss or tinnitus. Even though the Veteran's service examiners utilized whispered voice tests, which may not reveal high-frequency hearing loss, there is no documented complaints of hearing loss until March 2011, when the Veteran submitted a claim for service connection. Moreover, the evidence does not contain any competent and credible opinions that the Veteran's hearing loss or tinnitus is etiologically related to the in-service noise exposure or to any other injury incurred during active duty service. In this regard, the Board notes that the March 2013 VA examiner opined that the Veteran's hearing loss and tinnitus were not related to his military service. The VA examiner is found to have been fully informed by the Veteran's claims file and service treatment records and cites relevant medical findings in her opinion. She additionally provided rationale for her findings that the Veteran's hearing loss and tinnitus are not due to service, noting that the Veteran's service treatment records were negative for hearing loss, the Veteran had significant post-service occupational noise exposure, there were no complaints of hearing loss until years after service, and there were no current complaints of tinnitus. As noted above, the Board again notes that, as a layperson, the Veteran is competent to report on matters observed or within his personal knowledge. See,, Layno 6 Vet. App. at 470. Moreover, tinnitus (or, ringing in the ears) is the type of disability that the Veteran is competent to establish, on the basis of his own assertions (see Charles v. Principi, 16 Vet. App. 370 (2002)), and, under certain circumstances, credible assertions of continuous symptoms may be sufficient to establish service connection (see, e.g. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, when assessing credibility and probative value, such assertions must be weighed against medical and other pertinent evidence. Cf. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case, the evidence of record simply does not persuasively demonstrate that the Veteran has experienced tinnitus since service, as is now asserted in connection with the claim for monetary benefits. Here, the Veteran's admission to the March 2013 VA examiner that he had a post-service 10 to 15 year history of occupational noise exposure, along with the passage of time between the Veteran's separation from service and the actual documentation of hearing loss and tinnitus, are factors that tend to weigh against the claims but also support the examiner's negative nexus opinion. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Notably, the March 2013 VA examiner considered the Veteran's current assertions and still rendered a negative opinion for each disability under consideration. This probative opinion weighs against the Veteran's assertion that hearing loss and tinnitus are due to in-service noise exposure. Significantly, there is no competent, contrary opinion of record, i.e., one that, in fact, supports the claims. In this regard, the Board points that post-claim medical records which reflect the Veteran's own reported history as to the onset of his hearing loss and tinnitus do not constitute competent medical evidence of the required nexus. See, e.g., LaShore v. Brown, 8 Vet. App. 406, 409 (1995). As such, these notations do not provide persuasive support for either claim. Furthermore, as for any attempt by the Veteran to assert that there exists a medical relationship between current hearing loss disability and/or tinnitus and the Veteran's service, again, such assertions provide no basis for allowance of either claim. Lacking appropriate medical training and expertise, the Veteran is simply not competent to provide a medical opinion in the question of etiology upon which each claim turns. See Bostain, 11 Vet. App. at 127; Routen, 10 Vet. App. at 186; Jones, 7 Vet. App. at 137-38. Again, the lay assertions in this regard have no probative value. Additionally, the lay statements provided by the Veteran's siblings are also considered here. His sister's statement states that the Veteran has trouble he has trouble hearing certain sound frequencies. This statement is true and is supported by the testing provided by VA. It does not provide evidence showing any connection with service. His brother's statement does address his memory of the Veteran's hearing loss following the Veteran's discharge from service. He states that he noticed the Veteran's hearing loss from the time he entered the Army to the time he was discharged from service. He reported that after the Veteran returned from the war, the family was forced to speak a little louder so he could hear. He reported the Veteran was withdrawn in large groups because he could not hear what was said. He believes that since the change took place while his brother was in the Army, that the noise exposure played a role in his brother's hearing loss. For all of the foregoing reasons, the Board finds that the claims for service connection for hearing loss and tinnitus must be denied. In reaching the conclusion to deny each claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs