Citation Nr: 1318708 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 10-03 574 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD A. Zenzano, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1953 to March 1955. This appeal to the Board of Veterans' Appeals (Board) arose from an April 2009 rating decision in which the RO denied service connection for bilateral hearing loss and tinnitus. In May 2009, the Veteran filed a notice of disagreement (NOD). The RO issued a statement of the case (SOC) in January 2010, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later that same month. In September 2012, the Acting Chairman of the Board, on his own motion, advanced this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2012). In October 2012, the Board remanded these matters to the RO, via the Appeals Management Center (AMC) in Washington, DC, for additional development. As discussed herein, the claims are now ready for adjudication. As a final, preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file that has been reviewed in adjudicating the Veteran's claims. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished. 2. The Veteran's assertions of in-service noise exposure are credible and consistent with the circumstances of his service; he also has current bilateral hearing loss to an extent recognized as a disability for VA purposes, and has credibly asserted experiencing current tinnitus. 3. There is no competent, credible evidence of bilateral hearing loss or of complaints of diminished hearing, during, or continuing since, service, and the most persuasive evidence on the question of whether the bilateral hearing loss first shown many years after service and service weighs against the claim. 4. There is no competent, credible evidence of tinnitus during, or continuing since, service, and the most persuasive evidence on the question of whether the bilateral hearing loss first shown many years after service and service weighs against the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012). 2. The criteria for service connection for tinnitus are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in an October 2008 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claims for service connection, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The letter also contained information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. The April 2009 RO rating decision reflects the initial adjudication of the claims after issuance of the October 2008 letter. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters on appeal. Pertinent medical evidence associated with the claims file includes available service treatment records (STRs) VA and private treatment records, and reports of VA examinations and audiological evaluations conducted in March 2009, December 2012, an April 2013. Also of record and considered in connection with this appeal are various statements provided by the Veteran. The Board finds that further RO action on either claim, prior to appellate consideration, is required.. With respect to the Veteran's STRs, the Board notes that only his DD Form 214 and separation examination are of record. Attempts to obtain further STRs revealed that the records were likely destroyed by fire. In January 2009, the Waco RO issued a Memorandum of Formal Finding on the Unavailability of Records. In this situation, VA has a heightened duty to assist the Veteran in development of his claim. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The RO met this heightened duty here, as it sent the Veteran a letter advising him of the status of his records and informing him of the alternative forms of evidence that can be developed to substantiate the claim, including but not limited to "buddy certificates" and letters. Dixon v. Derwinski, 3 Vet. App. 261, 263-264 (1992). No further RO action in this regard is warranted. The Board further notes that this claim was remanded in October 2012 for the RO to assist the Veteran with development of his claim, to include the solicitation of additional evidence and for him to undergo a VA examination. All requested development was accomplished on remand, so there was compliance with these remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no violation under Stegall v. West, 11 Vet. App. 268, 271 (1998) when the examiner made the ultimate determination required by the Board's remand). In summary, the duties imposed by the VCAA have been considered and satisfied. Through notice of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate the claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claims. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters on appeal, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 539, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis The Veteran asserts that he is entitled to service connection for bilateral hearing loss and tinnitus as the result of acoustic trauma during service. Specifically, he contends that he was exposed to such trauma during while undergoing demolition training at Fort Leonardwood as part of his combat engineering training, and that he experienced diminished hearing and ringing in his ears at that time, and has continued to experience such problems since service.. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). To establish entitlement to direct service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The determination as to whether elements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Certain chronic diseases, such as organic disease of the nervous system, shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post service (one year for organic disease of the nervous system even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. VA's Veterans Benefits Administration Adjudication Manual states that "sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 CFR 3.309(a)." M21-1MR III.iv.4.B.12.a.. With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit recently clarified that the provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection on the basis of continuity of symptomatology (in lieu of a medical opinion) is limited to chronic diseases as defined in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. At the outset, it is noted that the Board has reviewed all of the evidence in the Veteran's Virtual and paper claims files. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that 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) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Here, an in-service injury and current disabilities are not in question. The Veteran is competent to assert experiencing an injury, such as in-service noise exposure. As such, and because the Board finds no reason to question the veracity of the Veteran's assertions in this regard, and the Board accepts his assertions of significant in-service noise exposure as credible and consistent with the circumstances of his service. See 38 U.S.C.A. § 1154; Grottveit v. Brown, 5 Vet. App. 91, 93 (1991). Moreover, audiometric and speech discrimination testing reflected in reports of VA audiological evaluations and examination reports, since March 2009,confirm that he has bilateral hearing loss to an extent recognized as a disability for VA purposes, and examiners have documented that the Veteran experiences tinnitus (which, incidentally, is the type of disability the Veteran is competent to assert-see, e.g., Charles v. Principi, 16 Vet. App. 370, 374 (2002)). Notwithstanding the above, however, the evidence of record fails to establish-by competent, credible, and persuasive evidence-that the Veteran's bilateral hearing loss or tinnitus is etiologically related to service. As noted, the only available STR is the Veteran's March 1955 separation physical examination report which indicates hearing scores of 15 out of 15 on spoken and whisper voice tests, bilaterally. Post service, the first medical evidence of a sensorineural hearing loss disability are private ear, nose, and throat (ENT) clinic records dated from June 1997 through June 2002. See 38 C.F.R. § 3.385 (2012). These records reflect that the Veteran reported a history of noise exposure to heavy machinery for twenty years. A July 1997 ENT clinic note indicates that the Veteran's current hearing loss is "probably" secondary to noise. Negative reports of tinnitus were noted in June 1997, July 1997 and January 1998. In March 2009, the Veteran was evaluated by a VA audiologist in connection with his current claims on appeal. The Veteran stated that he could not identify the date of onset of his tinnitus. Following review of the claims file and the audiometric testing results, the audiologist diagnosed the Veteran with mild to profound bilateral sensorineural hearing loss and recurrent bilateral tinnitus. As for the etiology of these conditions, the audiologist indicated that an opinion as to whether hearing loss or tinnitus are related to service would require speculation, given the absence of pure tone threshold audiometry results at separation. Following the March 2009 VA examination, in April 2009, the Veteran submitted a statement from an ENT physician, Dr. McKee, which notes the Veteran's reports of hearing loss and tinnitus since service as well as a history of demolition training and exposure to heavy equipment noise during service. The physician noted that the Veteran has no family member with significant hearing loss or relatives who wear hearing aids. The physician stated that the Veteran's current hearing loss "is most likely related to his exposure to noise in the military." In an April 2009 statement, the Veteran indicated that he has been experiencing hearing loss and tinnitus since service. The Veteran underwent further examination, for which opinions were not issued, in December 2012 by an ENT physician and in April 2013 by an audiologist. At the December 2012 examination, the Veteran reported a medical history of "at least an 8-10 year history of bilateral progressive hearing loss and a long history of bilateral constant tinnitus." The examiner noted the Veteran's in-serviced noise exposure, and that he described a long history of non-military noise exposure from driving trucks, use of machinery, and occasional recreational shooting and that the Veteran denied using ear protection. The examiner diagnosed the Veteran with bilateral hearing loss and tinnitus, and stated that he would render an opinion after the Veteran underwent testing by an audiologist and he could review the findings as a whole. The requested audiological testing was conducted in April 2013. During the April 2013 audiological examination, the Veteran reported a similar history of in-service and post-service noise exposure, with the exception of not reporting any recreational noise exposure, and stating that he did not have a family history of hearing loss. Following this, in April 2013, the ENT physician who conducted the December 2012 examination issued an opinion stating that the Veteran's bilateral hearing loss and tinnitus were less likely than not related to service. He noted that the Veteran's hearing loss had progressively worsened between its initial notation in 1997 and the Veteran's most recent audiometric exam, in April 2013. He noted the Veteran's whisper test score of 15/15 indicated normal hearing; that the testing done then was the standard of what was done at the time; and, that audiometric testing would most likely have been done then if hearing loss had been suspected or reported. He went on to reason that the most likely cause of the Veteran's hearing loss and tinnitus was a combination of environmental and genetic factors that have occurred subsequent to military separation in 1955, mostly presbycusis as the history and audiometric profile could easily be compatible with the veteran's current age, observing that, "one can certainly see progression in auditory acuity over the past 15 years." Here, the Board notes that the record contains conflicting opinions regarding whether the Veteran's current bilateral hearing loss and tinnitus are medically related to his in-service noise exposure. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Here, for reasons to be discussed below, the Board finds the April 2013 VA opinion to be most probative in discussing these claims. Regarding the July 1997 ENT clinic note which indicates that the Veteran's current hearing loss is "probably" secondary to noise, this statement does not specify whether the noise exposure referred to was in-service or post-service, nor is there a rationale provided. A medical opinion which only contains data and conclusions, and is not supported by reasons or rationale is accorded no probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two-" a medical opinion . . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Accordingly, this statement is nonprobative on the etiology of the Veteran's bilateral hearing loss and tinnitus. Turning to the March 2009 VA opinion, as previously addressed in the Board's October 2012, remand, the fact that a private ENT physician (Dr. McKee) was able to render an etiological opinion in his April 2009 statement raised the suggestion that the March 2009 audiologist may not possess sufficient expertise and training to evaluate the evidence of record in this case. Thus, the March 2009 opinion is deemed inadequate on these grounds. The Board also finds the medical opinion provided by Dr. McKee insufficient to substantiate the Veteran's claims because he did not have access to the Veteran's March 1955 separation physical examination report and earlier ENT clinic records, to include evidence of a post-service history of noise exposure. That the private physician did not discuss these facts in his opinion is significant, as the Board finds that these are nonincidental facts which merit consideration in any opinion rendered on the etiology of the Veteran's bilateral hearing loss and tinnitus. By contrast, the April 2013 opinion considered the Veteran's complete documented medical history, as well as his assertions, was based on evaluation and testing of the Veteran (in December 2012 and April 2013), and contained a detailed rationale. As such, the Board accepts this opinion as probative of the medical nexus question. In accepting the April 2013 VA opinion as probative, the Board recognizes that the examiner attributed the Veteran's bilateral hearing loss, in part, to genetics, while the April 2009 private opinion stated that the Veteran has no family member with significant hearing loss or relatives who wear hearing aids. However, the Board points out that the April 2013 VA examiner provided several other reasons for finding that the Veteran's bilateral hearing loss/tinnitus were not due to service, apart from genetics, including age and post-service environmental factors, such that the Board finds this discrepancy to be a nonissue. Moreover, as the April 2013 examiner reviewed the Veteran's claims file, to include the April 2009 private opinion and April 2013 audiologist's examination where the Veteran also denied a history of family hearing loss, it is presumed the April 2013 ENT physician was aware of these facts. Additionally, the Board notes that the Veteran's separation examination reflects a normal whisper test and contained no complaints related to hearing loss or tinnitus. With respect to post-service medical records, the first complaint of hearing loss does not occur until June 1997, and tinnitus, which was repeatedly denied post-service, was not reported until March 2009. As noted above, there is nothing in the Veteran's separation examination to indicate hearing loss and tinnitus had its onset during service or shortly after service. Rather, the first medical evidence of hearing loss and tinnitus was approximately 42 years and 54 years, respectively, after the Veteran separated from service. As such, the Veteran is not entitled to presumptive service connection for hearing loss. Moreover, the Board points out that the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). The Board notes the Veteran's assertions of continuity of symptomatology of bilateral hearing loss and tinnitus since service. Unlike hearing loss, 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, e.g., Charles, supra). Thus, although tinnitus is not a chronic disease under 38 C.F.R. § 3.309(a), given the nature of the disability, the Board has still considered whether his assertions of continuity of symptoms of ringing in the ears persuasively support the claim.. As indicated above, however, private treatment notes show that the Veteran repeatedly denied tinnitus and did not report such until the March 2009 VA examination, ordered in connection with his current claims for VA benefits. In light of these contradictory statements, any current assertions as to experiencing tinnitus during service, advanced in furtherance of the appeal, are deemed not credible. By extension, to the extent the Veteran alleges continuity of symptomatology of diminished hearing since service separation, the Board notes the Veteran's questionable credibility, and, regardless, such is simply not supported by probative evidence of record, as discussed above. Accordingly, entitlement to service connection for bilateral hearing loss and tinnitus in not established on the basis of continuity of symptomatology. Furthermore, as for any direct assertions by the Veteran and/or his representative that there exists a medical relationship between the Veteran's bilateral hearing loss and/or tinnitus and service, the Board finds that no such assertions provide persuasive evidence in support of the claims. The matter of the etiology of the disabilities here at issue is within the province of trained professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As neither the Veteran nor his representative is shown to be other than a layperson without the appropriate training and expertise, neither is competent to render a probative (i.e., persuasive) opinion the medical matter upon which this claim turns. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ('a layperson is generally not capable of opining on matters requiring medical knowledge'). Hence, the lay assertions of medical nexus have no probative value. Based on the foregoing, the claims for service connection for bilateral hearing loss and tinnitus must be denied. In reaching the conclusion to deny the claims, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). (CONTINUED ON NEXT PAGE) ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs