Citation Nr: 1319917 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 11-04 813 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from February 1962 to February 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office in San Diego, California (RO). Jurisdiction rests with the RO in Oakland, California, from which the Veteran's appeal was certified. FINDING OF FACT The probative evidence of record does not relate the Veteran's hearing loss or tinnitus to his military service, nor has he experienced symptoms of either continually since service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). A November 2008 letter satisfied the duty to notify provisions and notified the Veteran of the regulations pertinent to the establishment of an effective date and of a disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records and identified private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The record does not reflect that the Veteran is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159(c)(2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). The Veteran was provided with a VA examination to determine the etiology of his hearing loss and tinnitus in April 2009. Review of the examination report an opinion reflects that it is adequate upon which to base an appellate decision, as the opinion provided was based upon a complete review of the evidence in the claims file as well as the Veteran's contentions, and is supported by explanation and rationale. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Review of the record does not indicate that additional evidence pertinent to the issues adjudicated in this decision is available, but not associated with the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that VA did not provide sufficient notice or assistance, such that it reasonably affects the outcome of the case, the Board finds that any such lack of sufficient notice is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection for sensorineural hearing loss may be granted if such disease is manifested in service, or manifested to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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 Veteran contends that he was exposed to acoustic trauma during service, and that his current right ear hearing loss and tinnitus are the result of that acoustic trauma. In his November 2008 claim, the Veteran asserted that his hearing loss and tinnitus were the result of exposure to artillery fire during service. He explained that he served as an artillery gun crewman and was not provided hearing protection during service. He denied a history of post-service noise exposure. In a December 2008 statement, he explained that he was exposed to noise from 105 millimeter (mm.) and 155 mm. artillery cannons during service. He noted that soon and in a very slow manner after service discharge, he developed tinnitus. In a March 2010 letter, he reported that he was sure that his exposure to heavy artillery during service caused his hearing problems. In a May 2010 notice of disagreement, the Veteran stated his belief that his tinnitus was caused by his in-service noise exposure. In his January 2011 substantive appeal, the Veteran reported that, a couple of years after service discharge - about the time that he was 30 years old, he and his wife started to notice a hearing loss because there were times that he could not hear some words. He indicated that the hearing loss progressed, and that he often had difficulty hearing his students in the classroom where he taught for 16 years after service. The Veteran's service personnel records show that he served in the U.S. Army with the artillery. A military occupational specialty is not noted. The Veteran's service treatment records are silent as to any complaints of or treatment for hearing loss during service. An August 1961 service entrance examination reveals that the Veteran's ears and drums were normal. An audiogram was not performed at that time, but whispered voice testing and spoken voice testing revealed findings of 15/15, bilaterally. In a report of medical history, completed at that time, the Veteran denied a history of ear, nose, and throat trouble. The Veteran's December 1963 separation examination also shows that his ears and drums were normal. A whispered voice test revealed findings of 15/15, bilaterally. On the authorized audio logical evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 5 (15) - 0 (5) LEFT 0 (15) 0 (10) 5 (15) - 10 (15) (Note: Prior to November 1967, audiometric test results were reported in standards set forth by the American Standards Association (ASA). The ASA results are the figures on the left of each column and are not in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses.). In a report of medical history, completed at that time, the Veteran denied a history of ear, nose, and throat trouble. The first post-service evidence of any hearing loss or tinnitus complaints is an October 2008 report from T. Trapp, M.D. In that report, Dr. Trapp stated that the Veteran first presented in September 2008 complaining of progressively worsening hearing loss with difficulty understanding speech, especially in the presence of background noise and competing conversation. He also noted bothersome nonpulsatile ringing in his ears. Dr. Trapp stated that the Veteran had a long history of substantial noise exposure serving as an artillery cannon crew member in the U.S. Army and there was no history of head injury, meningitis, significant ear infections, ear surgery, quinine use, or chemotherapy or aminoglycoside therapy. Examination showed both ear canals, tympanic membranes, and middle ears to be clear. Cranial nerves III, VII, IX, X, and XII were normal. An audiogram was performed in September 2008, but the report contains pure-tone audiometric graphs that are unclear. The Board acknowledges that VA has a duty to have uninterpreted pure-tone audiometry graphs, which are submitted in support of the Veteran's claim, interpreted. However, in this case, the April 2009 VA examination, discussed below, shows that the Veteran's right ear hearing loss is sufficient to establish right ear hearing loss for VA purposes. 38 C.F.R. § 3.385. Although the April 2009 VA examination does not establish a hearing loss disability for VA purposes in the left ear, and the September 2008 private audiometric test is unclear, the Board will assume that the September 2008 examination showed a hearing loss for VA purposes, because the examiner diagnosed bilateral hearing loss. Accordingly, remanding the claim for interpretation of the September 2008 audiometry results would result in unnecessary delay with regard to the claim of entitlement to service connection for hearing loss. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Dr. Trapp noted that the audiometry showed bilateral, moderate, high frequency sensorineural hearing loss with a notch at 2000 Hertz (Hz). The diagnosis was moderate noise induced hearing loss and associated tinnitus. Dr. Trapp opined that the Veteran's current hearing loss and tinnitus were more likely than not related to his past exposure to acoustic trauma during service. In support of his opinion, Dr. Trapp indicated that the Veteran did not have any post-service noise exposure, but acknowledged that his opinion was not based on review of the Veteran's service treatment records. In April 2009, the Veteran underwent a VA audiological examination. The Veteran complained of hearing loss and tinnitus, noted that he had the greatest difficulty hearing parts of sentences and certain words, and indicated that he struggled to hear the television at times. He noted that, over the prior 10 years, the occurrence of hearing problems had worsened. He denied chronic ear pain, aural fullness, drainage, a history of ear infections, and family history of hearing loss. He indicated that he had a head trauma from an accident in 1973, but denied any changes in hearing associated with that incident. With regard to noise exposure, the Veteran stated that he worked in artillery during service. He stated that he began with a 105 howitzer and then worked with a 255 howitzer. He reported that hearing protection did not help, and that he was right next to the howitzer when it was fired. He denied any post-service occupational or recreational noise exposure and indicated that he worked as a teacher. He stated that he first noticed his tinnitus approximately seven to eight years ago, and that there was no specific circumstance of onset. He described the tinnitus as bilateral, but occurring mostly on the left. He reported that the tinnitus occurred periodically, approximately two times per month, for 20 to 25 seconds per episode. He stated that the tinnitus sounded like a soft mid-pitch ringing. On the authorized audiological, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 45 30 25 LEFT 10 15 25 25 20 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 96% in the left ear. Immittance measures revealed normal Type A tympanograms in both ears. Acoustic reflexes were absent in the ipsilateral and contralateral conditions on the left. Acoustic immitance thresholds could not be obtained on the right as an adequate seal could not be maintained for the length of testing. The diagnosis was right ear hearing within normal limits through 1.5 Hz, with moderate rising to mild sensorineural hearing loss from 2000 Hz to 8000 Hz. After reviewing the Veteran's claims file, conducting an interview of the Veteran, and performing an audiological examination, the VA examiner opined that the Veteran's hearing loss and tinnitus were not likely due to acoustic trauma during active duty service, but more likely related to other factors, such as age, genetics, or other physiological interactions. In support of the opinion, the examiner noted that the Veteran's separation examination demonstrated normal hearing at that time, and observed that there were no complaints of hearing loss or tinnitus during service. The examiner explained that hearing loss and tinnitus caused by acoustic trauma would have been noted at, or shortly after, the time of the incident. The examiner also stated that the Veteran reported that he noticed hearing problems for the prior 10 years and tinnitus for the prior 7 to 8 years, which would have been over 30 years after discharge from active duty. The examiner indicated that the Veteran's description of tinnitus suggested normal head noise versus the definition of true tinnitus. In support of his claims, the Veteran submitted numerous articles from the internet, magazines, and newspapers, including a magazine article which addressed benefits available to veterans; a newspaper article which discussed therapy for tinnitus and noted the prevalence of tinnitus among service members returning from Iraq and Afghanistan whose training and combat missions involved heavy equipment explosions and loud gunfire; a website article which stated that loud noise may cause hearing loss; another website article which discussed acoustic trauma in general; and a website article which noted various reasons and causes of hearing loss. After thorough review and consideration of the evidence of record, the Board concludes that service connection for right ear hearing loss and tinnitus is not warranted. There are current diagnoses of right ear hearing loss and tinnitus. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation); 38 C.F.R. § 3.385. Right ear hearing loss was not diagnosed within one year after service discharge; therefore, service connection is not warranted on a presumptive basis. See 38 U.S.C.A. § 1101, 1112, 1113, 1137; see also 38 C.F.R. § 3.307, 3.309. Although hearing loss and tinnitus were not shown during active duty, the Board concedes the Veteran's exposure to acoustic trauma as the Veteran's descriptions of his noise exposure are consistent with his circumstances of service and are competent and credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006) (noting that the Board must determine whether lay evidence is credible due to possible bias, conflicting statements, and the lack of contemporaneous medical evidence, although that alone may not bar a claim for service connection); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). In this respect, the Veteran's DD-214 reflects that he served with the artillery in the U.S. Army. As the Veteran reports in-service noise exposure from artillery during service, the Board accepts his lay statements of in-service noise exposure as evidence that he was exposed to acoustic trauma during service. Nevertheless, the weight of the probative evidence of record does not relate the Veteran's hearing loss and tinnitus to his active duty service. The Board acknowledges that there are competing medical opinions of record with regard to the etiology of the Veteran's hearing loss and tinnitus. In that regard, the October 2008 opinion from Dr. Trapp concluded that the Veteran's hearing loss and tinnitus were caused by his acoustic trauma during service. This opinion was based solely upon the history provided by the Veteran and acknowledged that it was not based upon review of the Veteran's service records. As Dr. Trapp's opinion was not based upon a review of all of the pertinent evidence of record, including the Veteran's service treatment records which show no evidence of hearing loss complaints and a normal audiological examination at separation, as well as the Veteran's lay statements that he did not experience symptoms of hearing loss until years after service discharge or symptoms of tinnitus until several years before he filed his claim for service connection, the Board does not afford significant probative value to Dr. Trapp's opinion. Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion include access to the claims file and the thoroughness and detail of the opinion). In contrast, the Board affords substantial weight to the April 2009 VA opinion, which was based upon a thorough review of the evidence of record, an interview of the Veteran, as well as an audiological examination. Moreover, the VA examiner provided supporting explanation and rationale for the opinion that the Veteran's hearing loss and tinnitus were not related to his in-service acoustic trauma, and cited to the pertinent evidence in the claims file to support the opinion. Accordingly, the probative medical evidence of record does not relate the Veteran's hearing loss and tinnitus to his active duty service. As noted above, the Veteran submitted copies of various articles in support of his claims. Once submitted, medical treatise evidence becomes part of the whole recorded history of a claim against which all medical examination reports must be considered. See 38 C.F.R. § 4.2 (2012). Consideration has been given to whether these articles constitute a sufficient nexus to show a relationship between the Veteran's hearing loss or tinnitus and his military service. The Board finds, in this case, that it does not. The medical treatises are of a general nature and do not address the Veteran's situation specifically, and were not submitted in conjunction with a medical professional's opinion indicating a positive causative relationship between the right ear hearing loss or tinnitus and the Veteran's service. Sacks v. West, 11 Vet. App. 314 (1998) (holding that a medical article or treatise can provide support for a claim, but must be combined with an opinion of a medical professional and be reflective of the specific facts of a case as opposed to a discussion of generic relationships). Accordingly, the Board does not afford any significant weight to the medical treatises submitted by the Veteran. Although organic diseases of the nervous system are chronic diseases and may be found to be service-connected when there is evidence of continuity of symptomatology since the condition was noted during service, the Veteran has not provided any lay statements that he has had hearing loss consistently since active duty service. 38 C.F.R. §§ 3.303(b), 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In that regard, in his April 2009 VA examination, the Veteran only indicated problems with worsening hearing for the prior ten years. In a January 2011 substantive appeal, he stated that he did not begin to notice hearing problems until he was 30 years old, which is approximately 4 years after service discharge. Thus, as the Veteran did not report hearing loss symptoms during service and continuing consistently after service discharge, the evidence does not show continuity of symptomatology. Based on the probative medical opinion provided by the April 2009 VA examiner, the criteria for entitlement to service connection for hearing loss and tinnitus are not met, as the preponderance of the evidence is against the claims. There is no doubt to be resolved, and service connection is not warranted. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs