Citation Nr: 1320942	
Decision Date: 06/28/13    Archive Date: 07/05/13

DOCKET NO.  13-11 095	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.   

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

P. Childers, Counsel






INTRODUCTION

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).

The Veteran had active military service from June 1950 to January 1954.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that denied, in pertinent part, service connection for hearing loss and tinnitus.


FINDINGS OF FACT

1.  Hearing loss disability was not shown in service or for many years thereafter, and there is no competent evidence linking this disability to service.

2.  Competent and credible evidence indicates that tinnitus began in service and has continued since.


CONCLUSIONS OF LAW

1.  The requirements for establishing service connection for a bilateral hearing loss disability have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012).

2.  The requirements for establishing service connection for tinnitus have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Veterans Claims Assistance Act of 2000 (VCAA)

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) redefined VA's duty to assist a claimant in the development of a claim.  VA regulations for the implementation of the VCAA are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a).

The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing.  38 C.F.R. § 3.159(b).  The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a 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 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).  Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

The notice requirements were accomplished in a letter dated in December 2010.  Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006).  The Veteran was apprised of the information and evidence needed to substantiate his claims for service connection, including the information and evidence to be submitted by him and the information and evidence to be obtained by VA.  He was also apprised of how disability ratings and effective dates are assigned, and of the type of evidence that impacts those determinations.  

The record also reflects that VA has made reasonable efforts to assist the Veteran in substantiating his claims.  Specifically, the information and evidence that has been associated with the claims file includes service treatment records, VA medical records, private medical records, and a VA examination report.  

The Board accordingly finds that VA has fulfilled its duty to assist; and particularly notes that the Veteran was an active participant in the claims process by providing evidence and argument.  Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so.  Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant.  Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits.  See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).  

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 chronic condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2012).  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).

Additionally, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and an organic disease of the nervous system becomes manifest to a degree of 10 percent within one year from date of termination of 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 C.F.R. §§ 3.307(a), 3.309(a).  

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).  

Hearing loss for the purpose of VA disability compensation is considered 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. 

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 
. . . a veteran may still establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service."  Hensley, at 159-160.  

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA.  VA shall consider all information and medical and lay evidence of record.  Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The Board has reviewed all the evidence in the record.  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 appellant 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 claims and what the evidence in the claims file shows, or fails to show, with respect to the claims.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

A. Hearing loss 

In January, 1954, the Veteran separated from active duty service; and in November 2010 he filed a claim for service connection for hearing loss based on exposure to "acoustical trauma" during service.  He reports that he worked as a Gunners Mate on a heavy cruiser during service, and was exposed to noise from the firing of big guns.  He says that he has had hearing loss for years, and adds that he now wears hearing aids in both ears.  For the reasons that follow, the Board finds that the preponderance of the evidence is against the claim.  

The Veteran's DD-214 confirms that he was assigned to the U.S.S. NEWPORT NEWS (CA-148) during his Korean War era service, and his military occupational specialty was Machinist; however, service treatment records contain no complaints or findings of hearing loss.  Hearing on whispered voice testing during a June 1950 enlistment examination was 15/15.  Hearing testing was apparently not done during the Veteran's 1954 separation examination, but clinical examination did not reveal any complaints or findings concerning the ears.  

The first post-service evidence of hearing loss is dated in October 2010, when the Veteran underwent a hearing test at a private facility.  Audiology testing found puretone thresholds, in decibels, as follows:

Hertz
500
1000
2000
3000
4000
Right ear
10
20
20
50
75
Left ear
10
15
20
50
65

Recommendation was for hearing aids, which were ordered.  No opinion as to the etiology of hearing loss was provided.  In November 2010 the Veteran filed his claim for service connection.

In April 2011 the Veteran was accorded a VA audiology examination.  During the examination he reported that he worked in a ship's gunnery throughout his enlistment.  He elaborated that he was a captain on a 5 inch gunmount that was near an 8 inch and 3 inch guns, and said that he wore no ear protection.  He also reported that he had worked, post service, around compressors in grocery stores from 1954 to 1995 without hearing protection, and added that he occasionally hunted, again without hearing protection.  He stated that he has had hearing loss since he got out of service.  The examiner, who reported that she had reviewed the claims file, remarked that the October 2010 private test showed moderate to moderately severe bilateral sensorineural hearing loss at 3000 to 4000 Hertz.  VA audiology testing in April 2011 found puretone thresholds, in decibels, as follows:

Hertz
500
1000
2000
3000
4000
Right ear
10
20
20
55
65
Left ear
20
20
25
50
70

The Maryland CNC Word List Recognition scores were 84 percent in the right ear and 76 percent in the left ear.  The diagnosis was bilateral sensorineural hearing loss.  On the question of whether the current hearing loss was related to service, the examiner stated that she could not resolve this question without resorting to mere speculation in the absence of in-service audiograms.  She explained that the status of the Veteran's hearing during service was unknown, and that his current hearing loss mildly exceeds normal for hearing loss due to aging and the configuration is consistent with noise exposure.  She noted that he reported significant military noise exposure, but also reported post service occupational and recreational noise exposure.  

In this case there is no medical evidence showing hearing loss during service or for more than 55 years after discharge from service.  Although the Veteran apparently stated, during his 2011 VA examination, that he has had hearing loss "since he got out of the service," he has not actually alleged that he experienced hearing loss during his service.  In any event, this remote statement more than 50 years after service is overcome by the complete absence in the record of any subjective complaint of hearing loss prior to 2010.  Indeed, he made no mention of hearing loss during VA treatment from 2000 until his first complaint in 2010.  Thus, the Board finds his current allegations, to the extent they suggest the presence of hearing loss during service or shortly thereafter, are not reliable or credible.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records, the significant time delay between the affiants' observations and the date on which the statements were written, and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence).  

Thus, although the Veteran had loud noise exposure during service, hearing loss disability was not shown in service or within the year after service.  The absence of any competent evidence of hearing loss until more than 50 years after service is persuasive evidence against the Veteran's claim of service connection.  See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (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.  

Most importantly, however, there is no medical opinion of record indicating the Veteran's current hearing loss is related to service, to include the noise exposure therein.  The private audiogram report from October 2010 provided no opinion as to the etiology of the Veteran's hearing loss.  Moreover, the VA examiner indicated that while the Veteran had in-service noise exposure, he also had post service noise exposure and his hearing loss only mildly exceeds the norms for hearing loss due to aging.  She found that in the absence of an in-service audiogram, she could not determine whether the current hearing loss was related to service without resorting to speculation.  The examiner reviewed the claims file and examined the Veteran, and explained why she was unable to render an opinion concerning the etiology of the Veteran's hearing loss, including the absence of pertinent medical findings and the presence of other risk factors for hearing loss.  Thus, such opinion constitutes competent evidence that may be considered in this case.  See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010) (where an examiner cannot provide a nonspeculative opinion, "it must be clear on the record that the inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion." 

An award of VA benefits may not be based on resort to speculation or remote possibility.  See 38 C.F.R. § 3.102 (Reasonable doubt means one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility.); Bostain v. West, 11 Vet. App. 124, 127 (1998). 

Here, there is simply no competent evidence of record indicating the Veteran suffered from hearing loss disability during service or for many years thereafter, and there is no competent opinion linking his current hearing loss to service.  

While the Veteran contends that his hearing loss is related to noise exposure during his military service, there is no indication that he has any specialized training in diagnosing audiological disorders or determining their etiology.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis).  In this regard, the diagnosis of sensorineural hearing loss requires medical testing to identify, and such disability can have many different causes, thereby requiring medical expertise to determine the etiology.  Moreover, whether the symptoms the Veteran reportedly experienced in service or following service are in any way related to his current hearing loss is a matter that requires medical expertise to determine.  See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with.").  Thus, the Veteran's contention that he suffered from hearing loss during service and/or since service, or that his current hearing loss is related to noise exposure during service, is not competent medical evidence.  

In summary, there is no competent evidence of hearing loss disability during service or for many years thereafter, and there is no competent evidence linking his current hearing loss disability to service.  Accordingly, upon consideration of the record, the Board finds that the preponderance of the probative evidence is against the claim for service connection for bilateral sensorineural hearing loss, and service connection is denied.  

In reaching the above conclusion, 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) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).

B. Tinnitus

As regards the claim for tinnitus, the Veteran presently complains of a constant loud bilateral ringing in his ears, which the VA audiology examiner duly noted.  See also October 2010 private audiology report regarding tinnitus.  The record thus contains competent and credible lay evidence of a current tinnitus disorder.  See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that ringing in the ears is capable of lay observation.  The issue then is whether there is a relationship between current complaints and service.  

During his 2011 examination, the Veteran stated that his tinnitus symptoms first began around 40 to 50 years ago.  As noted above, the Veteran had excessive noise exposure during service as a ship's Gunners Mate.  

Although the April 2011 VA examiner was unable to link the Veteran's tinnitus to his in-service noise exposure "without resort to mere speculation," a private clinician had no problem doing so.  See October 2010 opinion from private provider.  The medical evidence as to whether the Veteran's tinnitus is related to service is therefore in equipoise.

The Veteran is competent to testify as to the observable aspects of tinnitus.  As tinnitus is a diagnosis based on purely subjective complaints, the Board may accept his statements in this regard.  Indeed, in Barr v. Nicholson, 21 Vet. App. 303, 305 (2007), the Court held that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continued symptoms since service sufficient to establish service connection.  Id.  

Upon consideration of the record, the Board notes that the evidence as to the relationship between tinnitus and noise exposure in service is in equipoise.  Thus, after resolving all doubt in the Veteran's favor, the Board finds that service connection for tinnitus is therefore warranted.  38 C.F.R. §§ 3.102, 3.303.  


ORDER

Service connection for a bilateral hearing loss disability is denied.  

Service connection for tinnitus is granted.  




____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs