Citation Nr: 1318072 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 10-33 167 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD T. Sherrard, Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from October 1944 to November 1946. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a September 2008 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). 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. 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. The Veteran experienced acoustic trauma in service. 2. The Veteran did not sustain a disease or injury (other than acoustic trauma) of the bilateral ears in service. 3. Symptoms of bilateral hearing loss and tinnitus were not chronic in service. 4. Symptoms of bilateral hearing loss and tinnitus did not manifest to a compensable degree within one year of separation. 5. Symptoms of bilateral hearing loss and tinnitus have not been continuous since service separation. 6. The Veteran's bilateral hearing loss and tinnitus disabilities are not related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral 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. The criteria for service connection for tinnitus 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 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection for Hearing Loss and Tinnitus 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). The Veteran contends that his current bilateral hearing loss and tinnitus are related to acoustic trauma during active service. Specifically, he avers that he was exposed to the noise of various weapons on the rifle and machine gun ranges and during combat without any hearing protection. 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 a Combat Infantryman Badge, as well as an MKM-MI Rifle Badge and machine gun badge, and that he served in the Philippines. In addition, a Separation Qualification Record indicates that his Military Occupational Specialties included light machine gunner and military policeman. 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 ears during active service, and that symptoms of hearing loss and tinnitus were not chronic during active service. In short, service treatment records do not demonstrate bilateral hearing loss or tinnitus complaints, findings, diagnosis, or treatment. At the September 1946 separation examination, the Veteran scored a 15 out of 15 on a whispered voice test, indicating normal hearing. In addition, there were no documented complaints of hearing loss or tinnitus at separation or at any time during active service. The Veteran's failure to report any hearing loss or tinnitus 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 and tinnitus did not manifest to a compensable degree within one year of service separation. The weight of the evidence demonstrates no hearing loss or tinnitus symptoms during the one year period after service, and no diagnosis or findings of hearing loss or tinnitus of any severity during the one year post-service presumptive period. See 38 C.F.R. §§ 4.85, 4.86, 4.87, Diagnostic Codes 6100, 6260 (2012). The evidence shows the first documented complaint and assessment of hearing loss and tinnitus 58 years after service separation in 2004, as discussed below. For these reasons, the Board finds that hearing loss and tinnitus, first diagnosed in 2004, did not manifest to a compensable degree within one year of service separation; therefore, the presumptive provisions for hearing loss and tinnitus 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 hearing loss and tinnitus have not been continuous since service separation. At the September 1946 service separation examination, as discussed above, the Veteran did not report any symptoms of hearing loss or tinnitus, and a whispered voice test showed normal hearing. Post-service medical records do not identify a diagnosis of hearing loss or tinnitus until March 2004, when private treatment notes indicate the Veteran reported symptoms of hearing loss and occasional ringing in the ears. An audiogram was conducted. The audiogram revealed puretone thresholds of 55, 55, 50, 50, and 70 decibels in the right ear at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hz, respectively, and puretone thresholds of 65, 60, 60, and 65 decibels in the left ear at the test frequencies of 500, 1000, 2000, and 4000 Hz, respectively. Thus, based on the March 2004 audiogram results, the Board finds that the Veteran has a current bilateral hearing loss "disability" under the criteria of 38 C.F.R. § 3.385. The Veteran has not contended that his bilateral hearing loss and tinnitus began during active service. Indeed, he reported to the June 2008 VA examiner that his hearing loss and tinnitus symptoms began 30 years prior, placing inception of the symptoms in 1978, more than 30 years after service separation, providing highly probative evidence against his claim. However, to the extent that his contentions made in the context of the current claim can be interpreted as an assertion that hearing loss and tinnitus began in service and that his hearing loss and tinnitus have continued while in service and following service, the Board finds that, while the Veteran is competent to report the onset of his hearing loss and tinnitus, 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 hearing loss and tinnitus symptoms in service and continuous hearing loss and tinnitus symptoms after service are not accurate because they are outweighed by other evidence of record that includes the absence of in-service hearing loss or tinnitus complaints or symptoms, the lack of any hearing loss or tinnitus complaints and normal whispered voice test at the September 1946 service separation examination, the absence of any post-service history, complaints, symptoms, diagnosis, or treatment of hearing loss or tinnitus for 58 years after service, and the Veteran's claim for service connection in August 1947 for another disability with no mention of hearing loss or tinnitus symptoms. The Board acknowledges that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology (Savage v. Gober, 10 Vet. App. 488, 496 (1997)); however, here, the Veteran filed a claim for service connection in 1947, but did not mention any hearing loss or tinnitus symptoms at that time. This suggests to the Board that there was no pertinent hearing loss or tinnitus symptomatology at that time. While inaction regarding filing a claim is not necessarily indicative of the absence of symptomatology, where, as here, a veteran takes action regarding other claims, it becomes reasonable to expect that the Veteran is presenting all issues for which he is experiencing symptoms that he believes are related to service. In other words, the Veteran demonstrated that he understood the procedure for filing a claim for VA disability compensation, and he followed that procedure in other instances where he believed he was entitled to those benefits. In such circumstances, it is more reasonable to expect a complete reporting than for certain symptomatology to be omitted. Thus, the Veteran's inaction regarding a claim for hearing loss and tinnitus, when viewed in the context of his action regarding other claims for compensation, may reasonably be interpreted as indicative of the Veteran's belief that he did not sustain a hearing loss disability and tinnitus in service, or the lack of hearing loss and tinnitus symptomatology at the time he filed the claim, or both. 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 1947 to 2004, the Board finds that the absence of contemporaneous medical evidence of continuity of symptomatology for 58 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 hearing loss and tinnitus are not related to his active service, specifically including the noise exposure during service. In the June 2008 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 hearing loss and tinnitus were less likely as not related to his exposure to noise in service, reasoning that the first documented hearing loss and tinnitus was in March 2004, when the Veteran was 77 years old, and that the Veteran stated that his hearing loss and tinnitus began 30 years prior, 32 years after service separation. The VA examiner further stated that the Veteran's hearing loss and tinnitus were most likely related to age. The June 2008 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. There are no contrary opinions of record. Based on the evidence of record, the weight of the competent evidence demonstrates no relationship between the Veteran's hearing loss and tinnitus and his military service, including no credible evidence of symptoms of hearing loss or tinnitus during active service or continuity of symptomatology of hearing loss or tinnitus 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 hearing loss and tinnitus, and outweighs the Veteran's more recent contentions regarding in-service chronic hearing loss and tinnitus symptoms and post-service hearing loss and tinnitus 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. 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 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. In a timely November 2007 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 VA and private treatment records, a VA opinion, and the Veteran's statements. A VA opinion was obtained in June 2008 with regard to the question of whether the Veteran's hearing loss and tinnitus were caused by 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 June 2008 VA opinion obtained in this case is adequate as to the question of whether the Veteran's hearing loss and tinnitus are related to active service. The opinion was predicated on a full reading of the Veteran's claims file, which included service treatment records and private and VA medical records, as well as a complete audiological examination and interview of the Veteran. 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 claims decided herein 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 bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs