Citation Nr: 1322023	
Decision Date: 07/10/13    Archive Date: 07/18/13

DOCKET NO.  13-11 228	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1.  Entitlement to service connection for hearing loss.

2.  Entitlement to service connection for tinnitus.  


ATTORNEY FOR THE BOARD

J.R. Bryant, Counsel


INTRODUCTION

The Veteran had active service from January 1947 to June 1948.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  The case is currently under the jurisdiction of the RO in Chicago, Illinois.

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 complete service treatment records are unavailable; only the report of his June 1948 separation examination is available.

2.  Hearing loss was not manifest during the Veteran's military service or until many years thereafter; sensorineural hearing loss was not manifest to a compensable degree within one year after his separation from service.  Competent and credible evidence of a nexus between his current hearing loss and service is not of record. 

3.  Tinnitus was not manifest during the Veteran's military service and was not manifest until many years after his separation from service.  Competent and credible evidence of a nexus between his current tinnitus and service is not of record.


CONCLUSIONS OF LAW

1.  Hearing loss was not incurred in or aggravated by active service, and sensorineural hearing loss may not be presumed to have been so incurred or aggravated.  38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 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 active service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist

Before addressing the merits of the issue on appeal, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a).  Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  These 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 v. Nicholson, 19 Vet. App. 473 (2006).  Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included.  Id.

Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008).  None is found by the Board.  Indeed, VA's duty to notify has been more than satisfied.  The Veteran was notified via letter dated in September 2010 of VA's duty to assist him in substantiating his claims and the effect of this duty upon his claims.  This letter also informed him of how disability ratings and effective dates are assigned.  Dingess, 19 Vet. App. at 484.  Because the letter addressed all notice elements and predated the initial adjudication by the AOJ in May 2011, nothing more is required.  Thus, the Board concludes that all required notice has been given to the Veteran.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  

The Board also finds that VA has satisfied its duty to assist the Veteran in the development of his claims.  He was notified in February 2011 that his service treatment records were presumed destroyed in the 1973 fire at the National Personnel Records Center (NPRC) in St. Louis, Missouri, with the exception of the report of his June 1948 separation examination.  A March 20111 memorandum of unavailability of Federal records is included in the record, and the Veteran was provided proper notice of the inability to obtain the records, in accordance with 38 C.F.R. § 3.159(e).  

A VA examination was obtained in April 2011 to assist in determining whether the Veteran's hearing loss and tinnitus are attributable to his military service.  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  

The Board finds that the VA examination is more than adequate, as it reflects a full review of all medical and other evidence of record, is supported by sufficient detail, and refers to specific documents and medical history as well as the Veteran's service history to support the conclusions reached.  There is also no medical evidence of record that suggests a nexus between any currently diagnosed hearing loss or tinnitus and his military service; nor has the Veteran provided credible evidence of continuity of symptomatology since separation from service.  Accordingly, there is no basis to conclude that the VA medical opinion is inadequate, or that a remand for a new examination is required.  Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). 

Thus, the Board finds that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claims under the VCAA.  No useful purpose would be served in remanding this matter for yet more development.  A remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit to the Veteran.  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); & Quartuccio v. Principi, supra.  

Law and Analysis

The Veteran seeks service connection for bilateral hearing loss and tinnitus.  

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  "To establish a right to compensation for a present disability, a veteran must show:  "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Service connection may also 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).

Certain chronic diseases, such as organic diseases of the nervous system, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service 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. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  [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).  See M21-1MR III.iv.4.B.12.a.]  

For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  38 C.F.R. § 3.303(a).  When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity.  Id.  For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)).  A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed.  Id.

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, 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 threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Id.; Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  

The absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes).  See Hensley, 5 Vet. App. at 159.  

The Board has also considered the guidelines provided in the VA Training Letter 211D, TL 10-02 (Adjudicating Claims for Hearing Loss and/or Tinnitus), issued in March 2010.  In that letter, the Director of the VA Compensation and Pension Service indicated that the two most common causes of sensorineural hearing loss are presbycusis (age-related hearing loss) and noise-induced hearing loss (caused by chronic exposure to excessive noise).  It was also noted that the presence of a notch (of decreased hearing) that may be seen on audiograms generally at frequencies of 3000, 4000, or 6000 Hertz with a return toward normal at 8000 Hertz may be indicative of noise-induced hearing loss.  The letter further stated that "whispered voice tests are notoriously subjective, inaccurate, and insensitive to the types of hearing loss most commonly associated with noise exposure." 

The Director of the VA Compensation and Pension Service also observed in Training Letter 10-02 that sensorineural hearing loss is the most common cause of tinnitus, but commented that the etiology of tinnitus often cannot be identified.  Other known causes were listed, including Meniere's disease, a head injury, hypertension, medications, and dental disorders.  It was noted that delayed-onset tinnitus must also be considered. 

After considering all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim.  Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 

In the current appeal, the Veteran contends that his current bilateral hearing loss and tinnitus are the result of excessive noise exposure in service without hearing protection.  See VA Form 21-526, Veteran's Application for Compensation and/or Pension dated in September 2010.  Because both claims involve similar issues and evidence, and as similar legal principles apply, the Board will address them in a common discussion.

Specifically, the Veteran asserts that he was exposed to extremely loud artillery explosions and firing range noise from 105 Howitzers during basic training.  He maintains that he developed a hearing problem gradually over the years, but that it probably began during service.  See Notice of Disagreement and attached statement received in June 2011.  

The Veteran's DD 214 shows that his military occupational specialty (MOS) was medical adman, a specialty identified as one with a low probability of noise exposure.  See VBA Fast Letter 10-35 (September 2010).  However he also qualified as a rifle sharpshooter.  Therefore, his account of in-service noise exposure appears credible and consistent with the circumstances of his service.  See also April 2011 VA examination report.  Thus, the Board concedes the Veteran's exposure to noise in service.  See 38 U.S.C.A. § 1154(a) (West 2002).  So, the question remains as to whether the Veteran currently has bilateral hearing loss and tinnitus that are associated with his now conceded in-service noise exposure. 

Unfortunately, the Veteran's service treatment records are not available for review, except as noted below, despite the RO's attempt to obtain them.  A review of the claims folder indicates that while the RO was able to secure the Veteran's Separation Qualification Record, WD AGO Form 100, and June 1948 separation medical examination, the remaining service treatment records are missing from the record.  Certification of their unavailability was received from NPRC.  See VA Form 3101 dated in February 2011.  A formal finding on the unavailability of these records was also made in a March 2011 VA Memorandum.  Accordingly, the Board has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule.  O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). 

The Board notes that case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision when the Veteran's medical records have been destroyed.  Ussery v. Brown, 8 Vet. App. 64 (1995).  Similarly, the case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran.  Russo v. Brown, 9 Vet. App. 46 (1996).  While it is unfortunate that the service treatment records are not complete, the appeal must be decided upon the evidence of record. 

Turning to the Veteran's available service treatment record, the June 1948 report of medical examination conducted pursuant to his separation shows an audiogram was not conducted at that time instead, the Veteran was only provided spoken and/or whispered voice tests to determine the level of his hearing acuity.  The results were 15/15 in each ear.  This record does not reflect any specific instances of complaints or treatment stemming from noise trauma.  The Veteran's Separation Qualification Record, WD AGO Form 100, indicates that prior to service he was employed as a press operator and as a section hand on a railroad.

In the Veteran's September 2010 claim for service connection, he did not list any dates of medical treatment or evaluation for either disability at any time following service separation.  There are no post-service medical records dated immediately after service referencing hearing or tinnitus problems.  In fact, there are no pertinent clinical records associated with the claims file until a VA examination in April 2011 conducted for the specific purpose of obtaining an opinion as to whether or not the Veteran's hearing loss and tinnitus could be related to service.  On the authorized audiological evaluation, pure tone thresholds, in decibels, were shown to be: 




HERTZ



500
1000
2000
3000
4000
RIGHT
35
50
55
75
75
LEFT
35
35
50
55
50

Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 80 percent in the left.  These findings meet the requirements of 38 C.F.R. § 3.385 (2012).  The audiological results were summarized as mild to moderate sensorineural loss through the compensable range on the right and mild, sloping to severe sensorineural loss through the compensable range on the left.  

After reviewing the claims file in its entirety, taking a detailed history of the Veteran's military service (including the conceded noise exposure), and noting his post-service occupational noise exposure, symptoms and complaints, the examiner concluded that the Veteran's hearing loss and tinnitus were not caused by or a result of military service noise exposure.  The audiologist conceded the Veteran had loud noise exposure during basic training, but also noted that the Veteran already had a positive history of noise exposure as a civilian before entering the service.  In addition, after basic training the Veteran had no further noise exposure during service and his discharge physical shows a whispered voice test of 15/15 in each ear.  After service discharge, the Veteran had additional noise exposure as an employee with GM Foundry for 40 years, and for the first 15-20 years worked without hearing protection.  The Veteran reported that he first noticed his tinnitus about the same time as basic training, but only became aware of his hearing loss in the mid 1970s, some 25-30 years after service discharge and after many years of noise exposure in civilian life.  Therefore there is insufficient evidence to opine in the Veteran's favor regarding hearing loss due to noise exposure in basic training.  

Here, the Board is unable to attribute the post-service development of hearing loss and tinnitus to the Veteran's military service.  In this case, the fact that he was exposed to some degree of acoustic trauma during service is conceded, but that fact alone does not establish a basis for the grant of service connection for either disability.  As noted previously, the available service treatment record does not show either hearing loss or tinnitus.  Although whispered voice testing is not considered scientific or sensitive to high frequency hearing loss, it appears that the Veteran's ears and hearing were normal at service separation in 1948.  Moreover there follows a very lengthy period after service discharge in which there is no evidence of hearing loss or tinnitus complaints.  

In this case, the gap between separation from service and the first post-service indication of hearing complaints fails to satisfy the continuity of symptomatology required to support the claim for entitlement to service connection for sensorineural hearing loss.  There is simply no corroborative evidence on file, establishing that the Veteran sought or required treatment or evaluation for symptoms suggestive of hearing loss in the immediate years after his service had ended consistent with 38 C.F.R. § 3.303(b).  Consideration is given to the Veteran's assertion of experiencing continuous hearing problems since service.  However, the fact that no active hearing loss was identified prior to 2011, despite his complaints, diminishes the probative value of this assertion.  Also, because the earliest recorded medical history places the presence of hearing loss 63 years after service separation in 1948, it is impossible to grant service connection on the basis of the manifestation of a chronic disability (e.g., other organic diseases of the nervous system) within one year after separation from service.  38 C.F.R. §§ 3.307, 3.309.  

Other evidence of record contains a clinical reference to hearing loss since the 1970s, yet, even that date leaves a considerable gap between service and the initial complaints.  Although not a dispositive factor, the 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 Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000).  

Furthermore, the Board finds the 2011 VA opinion is highly probative as it is based upon a complete review of the Veteran's entire claims file and supported by detailed rationale.  The VA examiner considered the Veteran's history of noise exposure (both in-service and post-service), the results of the personal clinical evaluation, the relevant history as contained in medical records from service onward, and discussed the Veteran's symptoms in the context of that history.  He thus had sufficient facts and data before him.  As a result, he was able to address fully the salient question as to the origin of the Veteran's current hearing loss and tinnitus and their relationship to military service.  Moreover, the claims folder contains no competent medical evidence refuting this opinion.  

The Board acknowledges the Veteran's contention at the 2011 VA audiological examination that he has experienced hearing loss and tinnitus as a result of his exposure to acoustic trauma in service.  However as has been discussed herein, the June 1948 separation examination was negative for complaints of, treatment for, or findings of hearing or tinnitus problems.  Moreover, the preponderance of the evidence is against a finding of a continuity of symptomatology which might show a connection between the Veteran's current sensorineural hearing loss and his period of service.  In addition, the only medical evidence addressing the nexus requirement is the 2011 VA medical report in which the examiner disputed the notion that either the hearing loss or tinnitus is attributable to noise exposure during or coincident with the Veteran's military service.  

The Board notes that in a precedent case, Dalton v. Nicholson, 21 Vet. App. 23 (2007), the United States Court of Appeals for Veterans Claims determined an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and, instead, relied on the absence of evidence in the Veteran's service treatment records to provide a negative opinion.  However the facts here are distinguishable because the VA examiner clearly conceded the Veteran had noise exposure while in the military (relevant in-service injury), but ultimately concluded that the noise exposure in service was not the precipitant of his hearing loss and tinnitus when also considering the additional noise exposure he had before and particularly after service.  

Therefore, after weighing all the evidence, the Board finds greater probative value in the 2011 VA examiner's conclusions, and, in light of the other evidence of record, that negative nexus opinion is sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran's position.  Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995).

In reaching this conclusion, the Board has not overlooked the Veteran's contentions, his statements to healthcare providers, or his written statements regarding his conditions.  His primary assertion is that his current hearing loss and tinnitus are related to noise exposure during service.  The Board is keenly aware that lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection."  Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994) Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006).  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.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 

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 Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  The United States Court of Appeals for the Federal Circuit has held, however, that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence.  So, to ultimately have probative value, the Veteran's assertions also have to be credible and judged in relation to the other evidence in the file - including any medical evidence addressing the determinative issue of causation.  See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno, 6 Vet. App. at 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). 

The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation.  Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating and identifying specific decibel loss to diagnose hearing loss for VA purposes, or to attribute any hearing loss or tinnitus to a specific cause.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012).  Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value.  

Although the Board recognizes the sincerity of the arguments advanced by the Veteran, his contentions as to the etiology/onset of his claimed hearing loss and tinnitus are not statements merely about symptoms, an observable medical condition, or a contemporaneous medical diagnosis, but rather clearly fall within the realm of requiring medical expertise, which he simply does not have.  That is to say, sensorineural hearing loss disability is a complex disorder that requires specialized training and equipment for a determination as to diagnosis and causation, and it is therefore not susceptible of lay opinions on etiology alone.  Similarly, establishing causation of the reported tinnitus also requires specialized medical knowledge.  So, while the Veteran is competent to say that he has experienced certain symptoms, even symptoms that often may be associated with eventual diagnosis of hearing loss, he is not in turn competent to ascribe these symptoms to disability related to his military service.  

Likewise, the single competent medical opinion in the record conclusively found no etiological relationship between the noise exposure in service and the subsequent development of hearing loss and tinnitus.  As has been noted, the Veteran has not established that he has experienced continuous hearing loss since his military service, only believing instead there must be some correlation between this condition and his military service - in effect, by logical deduction - because he was exposed to excessively loud noise while in service.  But this inductive leap would require ignoring that the Veteran did not report any such difficulties upon separation examination and the additional noise exposure he had both before and after his military service, which the VA examiner apparently considered more significant.  In this case, the Veteran's opinion, to the extent it is to be accorded some probative value, is far outweighed by the more thoroughly explained and detailed opinion from the VA medical professional.  Jandreau, supra & Buchanan, supra.  

For the above reasons, the Board is of the opinion that it has fully discharged its obligation to evaluate and discuss all of the evidence that may be favorable to the Veteran as mandated by O'Hare, supra, and that case's progeny.  Accordingly, the preponderance of the evidence is against the claims, and there is no reasonable doubt to be resolved.  38 U.S.C.A. § 5107(b). 


ORDER

Service connection for bilateral hearing loss is denied.

Service connection for tinnitus is denied.  



____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs