Citation Nr: 1318778 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 12-08 205A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from July 1956 to May 1958. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In that decision, the RO denied claims of service connection for hearing loss and tinnitus. 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's current hearing loss disability is unrelated to service or to a disease or injury of service origin. 2. Any current tinnitus is unrelated to service or to a disease or injury of service origin. CONCLUSIONS OF LAW 1. A bilateral hearing loss disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). 2. Tinnitus was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (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 evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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. Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a notice letter, satisfies these requirements. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In this appeal, the RO provided notice letters to the Veteran in April 2011 and May 2011, prior to the initial adjudication of the claims of service connection for hearing loss and tinnitus. The April 2011 letter notified the Veteran that the RO had received his completed Fully Developed Claim (FDC) Certification indicating that he had no other information or evidence to support his claim. The letter also notified the Veteran about what evidence the RO obtained on the Veteran's behalf. The May 2011 letter notified the Veteran that the RO was scheduling a VA audio examination on his behalf; and the letter also provided the Veteran notice of the consequences of his failure to report for the examination. After the Veteran appealed the June 2011 rating decision, the RO issued a comprehensive duty-to-assist letter to the Veteran in March 2013. That letter explained 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 Veteran, and what information and evidence would be obtained by VA. The March 2013 letter also provided the Veteran with 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 v. Nicholson, 19 Vet. App. 473 (2006). The claim was subsequently re-adjudicated in a supplemental statement of the case (SSOC) issued in April 2013. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of service treatment records, personnel records, and VA treatment records. Also of record and considered in connection with the appeal are the Veteran's various written statements. The Veteran was provided with a VA examination and opinion in June 2011 to assess the current nature and likely etiology of his hearing loss and tinnitus. The June 2011 examiner reviewed the claims file and prepared a summary of that review. The examiner provided an adequate opinion supported by a complete rationale based on review of the entire record, a clinical interview, audiometric testing compliant with VA regulations. The examination is therefore adequate. In the Veteran's March 2012 VA Form 9, substantive appeal to the Board, he argues that the June 2011 examination was not comprehensive, and he requested a new, "more thorough" examination. The Veteran provided no reason for why he felt the June 2011 examination was not comprehensive; and, as explained above, the examiner conducted an interview to obtain the critical noise exposure history; she examined the Veteran and tested the level of hearing loss presumably using the standard protocol for audiometric testing required by VA regulation. These results along with the Veteran's history of noise exposure in service, and after service; and, the opinion with complete rationale are the elements necessary to adequately address the Veteran's claims. Because the Board concedes in-service noise exposure, and because the Veteran has not shown why the June 2011 examination is not "comprehensive" the Board is not required to reexamine the Veteran under these circumstances. Cox v. Nicholson, 20 Vet.App. 563, 569 (2007) (explaining that "the Board is entitled to assume the competence of a VA examiner," and the appellant bears the burden of rebutting the Board's presumption of competence); see also Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009) ("Absent some challenge to the expertise of a VA expert, [there is] no statutory or other requirement that VA must present affirmative evidence of a physician's qualifications in every case as a precondition for the Board's reliance upon that physician's opinion."). As the Veteran has been afforded an adequate medical examination, and all identified records have been obtained, to the extent possible, VA has satisfied its duty to notify and assist the Veteran in this case. The Veteran has been afforded ample opportunity to identify and/or obtain any private treatment records to support his claim, and he has indicated that he has no additional evidence to support his claim. Any additional development would be redundant and unnecessary. No additional RO action to further develop the record on the claim is warranted. In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. The documents in the VVA file have been reviewed, and all relevant records are either duplicative of the evidence in the paper claims file or are separately identified and summarized below. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. II. Service Connection Service connection may be established 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. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Continuous service for 90 days or more during a period of war, or peace time service after December 31, 1946, and post-service development of a presumptive (chronic) disease such as hearing loss (as an organic disease of the nervous system) to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service, even though there is no evidence of psychosis during 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. The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Competent and credible lay evidence may establish the presence of observable symptomatology and, in certain circumstances, may provide a basis for establishing entitlement to service connection. When, for example, 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 the lay testimony and make a credibility determination as to whether it supports service connection. See, e.g., Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Medical evidence is therefore not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Nonetheless, although claimants may be competent to provide the diagnoses of simple conditions, such as a broken leg, separated shoulder, pes planus (flat feet), tinnitus (ringing in the ears), varicose veins, etc., they are not competent to provide evidence on more complex medical questions beyond simple observations. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (indicating lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a 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 also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue). Even if lay testimony is competent, should VA find it to be mistaken or lacking credibility, the Board may reject it as unpersuasive. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The Board may find a lack of credibility in, for example, conflicting medical statements or witness biases. Id at 1337. See also Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). The lack of contemporaneous medical evidence is also relevant; however, the mere lack of such evidence may not constitute the sole basis for discrediting the lay evidence. Id. For VA purposes, hearing impairment is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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 (2012). In Hensley v. Brown, 5 Vet. App. 155 (1993), the Court noted that 38 C.F.R. § 3.385, "does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service." Hensley at 159 . The Court explained that: [W]hen audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Id. at 160. Before November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). This appeal is not affected by the change because all of the evidence of record prior to November 1967 consists only of whispered voice testing. The service treatment records (STRs) are negative for finding or complaints of hearing loss or tinnitus. Hearing testing by the whispered voice method was within normal limits (shown as 15/15) on examinations dated February 1955, July 1956 February 1958 and May 1958. The STRs note that the Veteran worked around aircraft, and in-service noise exposure is conceded. A February 1958 Report of Medical History shows that the Veteran denied ear trouble, and hearing loss was not shown at that time. Similarly, the February 1958 Report of Medical Examination did not indicate any hearing defect. The June 2011 VA examination report contains an extensive history regarding the Veteran active service and post-service noise exposure. The Veteran reported that he first noted a hearing loss shortly after he was separated from the Navy. Currently, the Veteran described his functional impairment due to hearing loss as a difficulty keeping a job when it is required that he use the telephone because of difficulty hearing on the phone. The Veteran also noted difficulty understanding conversations during background noise. The Veteran reported significant noise exposure during service due to aircraft while working on the flight deck with no hearing protection. The Veteran reported that he was also exposed to artillery noise without hearing protection. The Veteran reported post-service noise exposure working construction for about 25 years, which included working in nuclear plants for 15 of those years during which time it was not quite as noisy. The Veteran subsequently worked in general construction for 10 years and used hearing protection some of the time. The Veteran denied recreational noise exposure and denied a family history of hearing loss. The Veteran denied any ear surgery, otorrhea and otalgia. He reported occasional eustation tube dysfunction sometimes and can feel very full, likened to the feeling after flying in an airplane. The Veteran reported constant tinnitus, which he also asserts began shortly after service. The results of the audiometric evaluation revealed a moderate to moderately severe bilateral sensorineural hearing loss. Air conduction thresholds for the right ear were 40 dB at 500 Hz, 50 dB at 1000 Hz, 55 dB at 2000 Hz, 65 dB at 3000 Hz and 70 dB at 4000 Hz. Air conduction thresholds for the left ear were 40 dB at 500 Hz., 45 dB at 1000 Hz, 50 dB at 2000 Hz, 60 dB at 3000 Hz, and 65 dB at 4000 Hz. No air bone gaps were noted for either ear. The four frequency pure-tone averages were 60 decibels for the right ear and 55 decibels for the left ear. Word recognition scores were 72 percent for the right ear with the left ear masked at 74 percent. Tympanograms revealed normal middle ear function bilaterally. Reflex testing was not conducted because seals could not be maintained for either ear. In summary, the examiner concluded that the Veteran had a moderate to moderately severe bilateral sensorineural hearing loss. Speech discrimination was fair in both ears. According to the examiner medical follow-up was not needed for an ear or hearing problem. With regard to the current report of tinnitus, the examiner opined that the Veteran's tinnitus is as likely as not a symptom associated with the hearing loss. The examiner essentially conceded in-service noise exposure due to the Veteran's MOS of airman. The examiner also pointed out, however, that there were also several years of post-service noise exposure working in construction. Although the Veteran's hearing in service was noted as normal pursuant to whispered voice testing, the examiner conceded that whispered voice tests are not sensitive to high frequencies. Nonetheless, the examiner pointed out that the STRs were silent for complaints of hearing loss and tinnitus, and the records are in fact silent until more than 50 years after service discharge. Moreover, and significantly, the examiner also indicated that the Veteran' current audiogram configuration was not that typically seen with noise-induced hearing loss and tinnitus. For all those reasons, the examiner opined that the hearing loss and tinnitus were less likely than not a result of the Veteran's service and more likely a result of a post-service occurrence or aging or a combination of these. Concerning the claim for service connection for tinnitus and a hearing loss disability, the interpreted pure tone thresholds as recorded by the June 2011 VA physician for the Veteran's right and left ears meet the numerical standards enumerated by 38 C.F.R. § 3.385 (2012). As such, the Veteran does have a hearing loss disability for VA benefit purposes. Additionally, the June 2011 VA examiner provided a diagnosis of tinnitus. However, there is no competent and credible evidence of a link between the bilateral hearing loss disability and tinnitus and the Veteran's service. The June 2011 VA examiner specifically opined that the Veteran's hearing loss and tinnitus were not caused by or a result of the Veteran's time in the service. The opinion of the June 2011 VA examiner is persuasive, as the examiner supported her given opinion by citing from the service treatment records and the Veteran's own reported history. No other competent medical evidence has been submitted suggesting such a nexus between the Veteran's hearing loss disability, tinnitus, and his service. After the examination, the Veteran provided additional statements regarding the intensity of his in-service noise exposure. The Veteran is competent to observe decreased hearing and ringing in his ears, as those are symptoms are capable of lay observation. However, the Veteran's account is not supported by any medical evidence of record. Although he presently asserts that he first noticed hearing loss and tinnitus just after service separation, the Veteran indicated on his Report of Medical History completed in February 1956 at the conclusion of his service that he did not experience ear trouble, running ears, or hearing loss. In addition, the Veteran is vague about when he actually began to notice a hearing loss, and has provided no corroborating medical evidence to support his claim. Furthermore, the VA examiner in June 2011 specifically stated that the pattern of the Veteran's hearing loss was not typically associated with noise-induced hearing loss. The examiner's reasoning, in addition to the lack of any corroborating medical evidence to support the Veteran's claim outweighs the Veteran's assertion that his hearing loss and tinnitus is due to in-service noise exposure. Additionally, the available evidence does not show that the Veteran has ever sought medical treatment for hearing loss or for tinnitus until this decade. The Federal Circuit has determined that a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. See generally Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Finally, there is no contradictory medical evidence of record. For these reasons, the opinion of the June 2011 VA audiologist outweighs the Veteran's assertions. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). (Continued on next page.) ORDER Service connection for hearing loss disability is denied. Service connection for tinnitus is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs