Citation Nr: 1318435 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 12-22 031 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from July 1964 to July 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied to service connection. The Veteran appealed the denial on this decision, and these matters are now before the Board. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. In this case, the issue of entitlement to service connection for left ear hearing loss must be remanded to the RO to cure a defect in the notification which the Veteran received. Entitlement to service connection for the right ear, however, is addressed on the merits. Accordingly, although the issue considered by the RO was service connection for bilateral hearing loss, the Board has split this matter into separate issues for each ear and has listed the issues accordingly. The issue of issue of entitlement to service connection for left ear hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The Veteran did not engage in combat with the enemy during service. 2. The Veteran was exposed to loud noise (acoustic trauma) during service. 3. Symptoms of right ear sensorineural hearing loss were not chronic in service. 4. Symptoms of right ear sensorineural hearing loss were not continuous after service. 5. Right ear sensorineural hearing loss did not manifest to a compensable degree within one year of separation from service. 6. Right ear sensorineural hearing loss is not related to service. 7. The Veteran does not have a current disability of tinnitus. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1153, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, , 3.159, 3.303, 3.306, 3.307, 3.309, 3.385 (2012). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), as was done in this case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO provided a VCAA notice letter to the Veteran in October 2010 prior to the initial adjudication of the service connection claims. The letter notified the Veteran of what information and evidence must be submitted to substantiate the claims, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claims to the RO. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). In addition, the notice requirements of the VCAA apply to all elements of a service connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In this case the Veteran was provided with such notice, including the type of evidence necessary to establish a disability rating and effective dates, in the July 2010 letter. Based on the foregoing, adequate notice was provided to the Veteran prior to the transfer and certification of this case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see Golz v. Shinseki, 590 F.3d 1317, 1320-21(2010). Furthermore, "[t]he duty to assist is not boundless in its scope" and "not all medical records . . . must be sought-only those that are relevant to the veteran's claim." In this case, service treatment and service personnel records have been obtained, as have records of private and VA treatment. These pertinent records have been associated with the Veteran's claims file and reviewed in consideration of the issues before the Board. The Veteran has indicated that he had no additional information or evidence to submit in support of his claim. The Veteran was afforded a VA examination in June 2012, during which the examiner, an audiologist, conducted an examination of the Veteran including objective audiologic testing, was provided the Veteran's claims file for review, took down the Veteran's history, laid a factual foundation for the conclusions reached, and reached conclusions based on the examination that are consistent with the record. Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2012); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion). The Board finds that all necessary development has been accomplished; therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In addition to the evidence discussed above, the Veteran's statements in support of the claims are also of record. The Board has carefully considered such statements and concludes that no available outstanding evidence has been identified. Additionally, the Board has reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. For these reasons, the Board finds that the duties to notify and assist the Veteran in the development of these claims have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duties to assist. 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). Legal Criteria for Service Connection 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 (West 2002) ; 38 C.F.R. § 3.303(a) (2012). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In this case, sensorineural hearing loss is an organic disease of the nervous system, which is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. In order to show a "chronic" disease in service, the record must reflect a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Where a chronic disease has been incurred 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 in order to establish entitlement to service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as organic disease of the nervous system (one type of which is sensorineural hearing loss), become manifest to a degree of 10 percent or more within one year after the date of separation from 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. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Tinnitus is not a "chronic disease" listed under 38 C.F.R. § 3.309(a). As discussed in further detail below, 38 C.F.R. § 3.303(b) does not apply to that portion of the Veteran's claim. Walker, 708 F.3d 1331. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the Veteran. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). Tinnitus is a disability capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d at 1376-77. Additionally, a lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. Jandreau, 492 F.3d, 1376-77. A veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). See 38 C.F.R. § 3.159(a)(2). Service Connection for Right Ear Hearing Loss The Veteran is claiming entitlement to service connection for loss of hearing in both ears. (Service connection for left ear hearing loss is addressed in the Remand section of this decision). The Veteran contends that hearing loss began in service; in July 2010 he submitted a VA Form 21-526 on which he indicated that hearing loss began in February 1966. The Veteran indicated that sources of acoustic trauma included being inside a tent when it "blew up," exposure to machine gun fire for three to four months, and exposure to incoming mortar rounds. On his August 2012 VA From-9, the Veteran stated that during Christmas 1965 he was under attack and it his tent was destroyed. The Veteran also stated that during service he worked around large generators and was subjected to the sound of the generators while they were operating. Finally, the Veteran stated that he worked near a landing strip at which aircraft would land approximately 250 yards from his position. He stated that the aircraft "flew very low and were loud." The Veteran has alleged that combat-related acoustic trauma is associated with his bilateral hearing loss, including having been in a tent when it exploded and having been subjected to mortar rounds. For the purposes of such a claim, the threshold for normal hearing is from 0 to 20 decibels. 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 Board observes that VA audiometric readings prior to June 30, 1966, and service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standards Organization (ISO)-American National Standards Institute (ANSI). In this decision when reporting audiometric testing results in service, ASA units appear to the right and in parentheses, while ISO-ANSI units appear to the left. After a review of all the evidence, the Board first finds that the Veteran did not engage in combat with the enemy during service. The DD Form 214 does not indicate any indicia of combat, and the in-service military occupation as a petroleum storage specialist is not consistent with having experienced combat. In this case, the Veteran's service personnel records have been associated with the file, and these too evidence no combat with the enemy. Accordingly, the Board finds that the weight of the evidence demonstrates Veteran did not engage in combat with the enemy during service; therefore the provisions of 38 U.S.C.A. § 1154(b) (West 2002) are not for application. The Board finds that the Veteran was exposed to loud noises during service. The Veteran has endorsed in-service noise exposure, including mortar rounds, aircraft, explosions, and generators. The DD Form 214 shows a military occupation of petroleum storage specialist. The Veteran is competent to report noise exposure in service, as well as symptoms of hearing loss and tinnitus. See Bennett v. Brown, 10 Vet. App. 178 (1997) (the Board may rely upon lay testimony as to observable facts). Because the Board has no reason to question the Veteran's assertions regarding experiencing loud noise, and the Veteran's duties as a petroleum storage specialist are not inconsistent with the types of loud noise exposure the Veteran has described, the Board accepts as credible the Veteran's assertion of exposure to acoustic trauma during service, and finds that he was exposed to such acoustic trauma during service. The Board finds that the weight of the evidence demonstrates that the Veteran did not experience chronic symptoms of hearing loss during service. The Veteran's service treatment records show that at the induction examination in March 1964 he endorsed "ear, nose or throat trouble" but denied any history of running ears. Audiological evaluation at service entrance showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 4000 RIGHT 20 (5) 15 (5) 15 (5) 10 (5) On service separation in July 1966, the Veteran again endorsed ear, nose or throat trouble, but without elaboration. The Veteran affirmatively denied hearing loss or running ears and on examination his ears and ear drums were normal. Audiological evaluation at service separation showed pure tone thresholds, in decibels, were as follows (2000 and 4000 Hertz levels were not tested): HERTZ 500 1000 3000 RIGHT 15 (0) 10 (0) 10 (0) Based on the foregoing, the evidence indicates that the Veteran entered service with some hearing loss in the right ear that was still within "normal" levels. Hensley, 5 Vet. App. at 157. The service separation report reflects that hearing loss in the right ear had not worsened, and the evidence shows hearing levels were not outside the normal range at any time in service. The service treatment record evidence further shows no complaints of hearing loss during service. Based on the foregoing, the Board finds that symptoms of a right ear hearing loss disability did not manifest during service, and were not chronic during service. The Board finds that the Veteran did not have right ear sensorineural hearing loss to a compensable degree within one year of separation to warrant presumptive service connection on that basis. 38 C.F.R. § 3.307. The Board finds that the weight of the evidence demonstrates that the Veteran did not experience continuous symptoms of hearing loss since service. The record shows no indication that the Veteran has at any time since separation from service sought treatment for right ear hearing loss, nor are there any endorsements of hearing loss until more than four decades after separation from service. Not until the Veteran submitted his claim for service connection does the record reflect a complaint of right ear hearing loss. The Veteran has current hearing loss disability that meets VA standards under 38 C.F.R. § 3.385. A VA audiology examination in June 2012 reflects pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 40 50 60 LEFT 100+ 90 90 80 80 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 10 percent in the left ear. The weight of the evidence also establishes that currently diagnosed sensorineural hearing loss and tinnitus are not otherwise related to active service. See 38 C.F.R. § 3.303(d); Hensley. The Veteran has made only general assertions that hearing loss began in February 1966 and is due to noise exposure in service. The more probative evidence, a VA examiner's opinion in June 2012 that the Veteran's hearing loss was not at least as likely as not related to service, weighs against the claim. The rationale for the opinion was that the service treatment records did not indicate hearing loss, that there was no significant decrease in hearing during service, and the Veteran's current hearing loss was not consistent with noise induced hearing loss. The VA examiner noted that the asymmetric loss of hearing (severe to profound in the left ear, but only mild to moderate loss in the right) is not consistent with noise-induced hearing loss. With regard to tinnitus, the Veteran did not report recurrent tinnitus; therefore, the examiner opined that tinnitus was less likely than not related to military noise exposure. In making these findings, the Board has considered all the evidence, including the lay statements of the Veteran. The Veteran is competent to report on symptoms of disease which are "unique and readily identifiable features" that are "capable of lay observation." Barr, 21 Vet. App. at 308-09; see also, Layno, 6 Vet. App. 465. Loss of hearing acuity is capable of lay observation. The Veteran's statements averring to in-service hearing loss as well as post-service hearing loss constitute competent evidence. While hearing loss is capable of lay observation, the cause of hearing loss is not. Jandreau, 492 F.3d 1372. Accordingly the Veteran's statements averring to the etiology of his hearing loss are not competent because making such a connection would require specialized medical knowledge regarding differing causes of hearing loss and the medical processes which cause acoustic trauma to result in hearing impairment. The Veteran has not been shown to have such specialized knowledge and thus his statements linking service with hearing loss are of no probative value. Furthermore, the Veteran has not submitted any competent evidence to support his contention that his current hearing loss is related to his in-service noise exposure. Of great probative value are the normal service separation examination and the conclusions reached by the VA examiner in June 2012 who, following an examination, applied specialized medical training to conclude that the Veteran's hearing loss disability was not caused by or a result of military service. Specifically, the examiner accurately noted that there was no significant decreased in hearing thresholds during service, and that the hearing loss that the Veteran currently has is not consistent with noise-induced hearing loss as it is asymmetrical - markedly worse in the left. The Board also considers the credibility of the Veteran's otherwise competent statements. Again, service treatment records do not reflect in-service complaints referable to right ear hearing loss and at separation hearing was normal in the right ear. In his July 2010 claim, the Veteran indicated that hearing loss had begun in February 1966; however, given the objective audiometric data showing otherwise, the fact that the Veteran's statements endorsing hearing loss have been conclusory and generalized, and the fact that his statements regarding hearing loss symptomatology have all been made in connection with a claim for compensation, the Board finds the Veteran's endorsement of in-service onset and continuous symptomatology since service to be outweighed by the other, more contemporaneous lay and medical evidence so as not to be credible. Rather, the Board finds the weight of the evidence shows that the Veteran's right ear hearing loss did not begin during service, was not chronic in service, was not continuous after service separation, did not manifest to a compensable degree within one year of separation from service, and is not otherwise related to service. Based on the foregoing, the preponderance of the evidence is against the claim, and there is no doubt to be resolved. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection for Tinnitus With regard to the Veteran's claim of service connection for tinnitus, during his June 2012 VA examination the Veteran denied tinnitus now or in the past. Furthermore, in a September 2012 statement on his behalf, the Veteran's representative confirmed that the Veteran had denied tinnitus now or in the past. In addition to the other requirements necessary to establish service connection, foremost is the existence of a current disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement to 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." (internal citations omitted)). While the Veteran is competent to report tinnitus at any time, including currently and during the period of this claim, he has not credibly done so. For these reasons, the Board finds that the Veteran does not have a current tinnitus disability, and the claim for service connection for tinnitus must be denied. Id. ORDER Service connection for right hearing loss is denied. Service connection for tinnitus is denied. REMAND Service Connection for a Left Ear Sensorineural Hearing Loss A veteran is presumed to have entered service in sound condition with respect to his or her health, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment. See 38 U.S.C.A. § 1111 (West 2002). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b) (2012). In this case, the service induction examination in March 1964 shows preexisting hearing loss in the left ear of 25 decibels at the 500 Hertz level that is not within the normal range. Specifically, audiological evaluation showed pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 4000 LEFT 25 (15) 20 (10) 15 (5) 15 (10) As the Court has indicated, the threshold of normal hearing is from 0 to 20 decibels. Hensley, 5 Vet. App., 157, thus the Veteran's left ear hearing at entrance was not "normal," and hearing loss is found to have preexisted service. Accordingly the Veteran's claim must be considered on the basis of whether an in-service aggravation of his left hear hearing loss occurred. In adjudicating the Veteran's claim, the RO failed to consider the issue of service connection for left ear hearing loss on the basis of aggravation. The RO also failed to inform the Veteran of the applicable laws and regulations which govern such an award. Due to these failures, VA has not met its duty to notify the Veteran of all necessary information necessary to substantiate his claim. 38 C.F.R. § 3.159(b)(1). In order to cure a defect where proper notice was not provided prior to the RO's initial adjudication, the timing problem can be cured by the Board remanding for the issuance of proper VCAA notice followed by readjudication of the claim by the RO. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). Accordingly, the issue of service connection for left ear sensorineural hearing loss is REMANDED for the following action: 1. Send the Veteran notice of the law and regulations applicable to a claim of service connection on the basis of aggravation of a preexisting disorder. See 38 U.S.C.A. § 1111 (West 2002) and 38 C.F.R. § 3.304 (2012). 2. Following issuance of the above notification, readjudicate the claim of entitlement to service connection for left ear hearing loss on the based of whether the hearing loss that existed prior to service was aggravated by service, and provide an appropriate supplemental statement of the case. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs