Citation Nr: 1322176 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 10-41 121 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from December 1969 to January 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky that in relevant part denied service connection for hearing loss and tinnitus. In March 2011 the Veteran testified before the undersigned Veterans Law Judge in a hearing at the RO ("Travel Board" hearing). A transcript of that hearing is of record. FINDINGS OF FACT 1. Bilateral sensorineural hearing loss did not become manifest during service or to a compensable degree within the first year after discharge from service and is not etiologically related to service. 2. A disability manifested by tinnitus is not etiologically related to service. CONCLUSIONS OF LAW 1. Bilateral hearing loss disability was not incurred in or aggravated by active service and sensorineural bilateral hearing loss may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). 2. A disability manifested by tinnitus was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Before addressing the merits of the Veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2011). Complete notification, to include the disability-rating and effective date elements of a service-connection claim, was provided to the Veteran prior to issuance of the rating decision on appeal. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In any event, the Veteran has not identified any prejudice due to error in the content or timing of the notice provided. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The RO has obtained service treatment records (STRs) and post-service VA treatment records from those VA and non-VA providers the Veteran has identified as having treatment records that could be relevant to the issues on appeal. The Veteran has been afforded a VA examination regarding the issues adjudicated below. The Veteran was afforded a hearing before the Board. There are two duties imposed on the person who presides at a hearing: (1) the duty to fully explain the issues, and (2) the duty to suggest the submission of evidence that may have been overlooked; these duties are not impacted by the Veteran's receipt of a VCAA-compliant notice letter. 8 C.F.R. § 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010). Here, during the hearing the presiding Member of the Board explicitly cited the bases for the prior determination and elicited testimony from the Veteran in regard to his service during the period in question and to any existing outstanding evidence that should be pursued prior to adjudication of the appeal. During the hearing the appellant demonstrated actual knowledge of this information. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (explaining that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate the claim). The Board accordingly finds the Veteran is not prejudiced by any error associated with the hearing. Neither the Veteran nor his representative has made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and neither has argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced the Veteran in the adjudication of his appeal. Applicable Legal Principles Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic disabilities, such as sensorineural hearing loss, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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, 4000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 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. Also, the threshold for normal hearing is between 0 and 20 decibels, and higher threshold shows some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The absence of evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385 above) is not always fatal to a service connection claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Service connection for hearing loss may be granted 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). Hensley, 5 Vet. App. 155, 159. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson, 581 F.3d 1313, 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. The third and final factor involves consideration of whether the opinion is supported by a reasoned analysis. 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). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 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 her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Evidence and Analysis Service treatment records (STRs) show no documentation of complaint during service of either hearing loss or tinnitus. The Veteran had a pre-induction physical examination in June 1969 in which his audiometric scores were as follows: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 5 5 5 10 10 NR LEFT 0 0 0 10 20 NR The Veteran had a separation examination in December 1977 in which his audiometric scores were as follows: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 25 25 20 20 20 15 LEFT 20 20 10 5 5 25 Comparison of the two reports appears to indicate the Veteran had some degree of hearing loss during service in the right ear at all frequencies and the left ear at 2000 Hertz and below, although the scores for the left ear at 3000 Hertz and above were actually better at separation than pre-induction. The Veteran had a VA audiological consult in October 1999 for hearing evaluation. The Veteran reported no current problem with his hearing but endorsed periodic tinnitus. Audiometric scores were within normal limits (WNL) in the right ear at all test frequencies; in the left ear audiometric scores were WNL except for mild sensorineural hearing loss (SNHL) at 3000 Hertz. Speech discrimination scores were 100 percent bilaterally. The audiologist's clinical impression was good functional hearing bilaterally. The Veteran had a VA audiological consult in March 2004 due to complaint of decreased hearing bilaterally; he also complained of constant tinnitus in the right ear and intermittent tinnitus in the left ear. The audiologist stated that Puretone test scores showed hearing WNLs at all frequencies between 250-8000 Hertz, with moderate SNHL in the right ear at 2000 Hertz and in the left ear at 4000 Hertz. Speech recognition scores were 96 percent in the right ear and 100 percent in the left ear. The clinical impression was good functional hearing bilaterally. The file contains a VA encounter note dated August 9, 2004, in which the Veteran reported improvement in his "roaring" in the ears since going off ace inhibitor medication. Subsequently, a VA primary care clinic (PCC) note dated August 26, 2004, shows the Veteran was advised to cease taking lisinopril and hydrochlorothiazide, both of which were prescribed for control of his blood pressure, due to ringing in the ears; he was started on a regimen of fosinopril as an alternative hypertensive medication. (The Board notes at this point that the Veteran is not service-connected for hypertension.) The file contains a VA PCC note dated in October 2006 in which the clinician noted there was no indication of current deafness or tinnitus. The Veteran reported he had stopped taking lovastatin, a medication for cholesterol control, because it had made his ears ring and his head "feel funny." (The Board notes at this point that the Veteran is not service-connected for hyperlipidemia or hypercholesterolemia.) The Veteran had a general medical examination by the Department of Disability Determination in August 2009 pursuant to the Veteran's claim for disability based on pain in various joints, hypertension, diabetes and some hearing loss. The Veteran asserted bilateral hearing loss secondary to noise exposure; he denied wearing hearing aids but endorsed reading lips. During interview the Veteran had difficulty hearing the examiner in the office and the examiner had to speak loudly and repeat himself several times; the Veteran was noted to be reading the examiner's lips. The examiner diagnosed bipolar hearing loss and suggested that the Veteran should have a hearing test. The Veteran's Social Security Administration (SSA) disability file includes an SSA Form 3368 (Adult Disability Report) showing that the Veteran was employed by the state highway department as an equipment operator from March 1985 to February 2005. The Veteran stated he often could not hear what he was doing with the equipment and had trouble hearing others or understanding instructions due to his hearing loss. During interview the Veteran had noticeable trouble hearing and could understand questions if asked loudly. In his claim for service connection, received in October 2009, the Veteran asserted his hearing loss was due to being an ammunition handler on an open gun mount from which many hundreds of rounds were fired; other gun mounts were also firing. He also cited service on the aircraft carrier USS Midway and being exposed to the sound of aircraft taking off and landing as well as gunfire. The Veteran had a VA audiological evaluation in December 2009, performed by an examiner who reviewed the claims file and the Veteran's VA medical record. The Veteran reported hearing loss over the past several years. The Veteran reported a history as a Boatswain's Mate in service with exposure to noise in the form of very loud tools such as grinders, paint chippers and sand blasters, all without hearing protection. After discharge from service he had frequent noise exposure from hunting and from all-terrain vehicles (ATVs), also without hearing protection. The Veteran also complained of constant bilateral tinnitus. On examination the Veteran's Puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 AVG. LEFT N/A 35 40 50 50 43.75 RIGHT N/A 35 55 55 35 45 Speech recognition was 80 percent in the right ear and 96 percent in the left ear. The audiologist diagnosed SNHL in the right ear at all test frequencies, and SNHL in the left ear at frequencies from 1000 to 8000 Hertz. The audiologist also diagnosed constant tinnitus. The audiologist stated an opinion that the Veteran's SNHL and tinnitus were not caused by or a result of noise exposure in the service. The audiologist stated as rationale that review of the record, to include the pre-induction physical examination and the separation physical examination, demonstrated that the Veteran's hearing was not damaged during service. The audiologist also noted the October 1999 VA audiological consult, cited above, which demonstrated the Veteran still had good hearing 20 years after discharge from service. Accordingly, the current bilateral hearing loss and tinnitus were not caused by or a result of noise exposure during service. The RO issued the rating decision on review in April 2010. In July 2010 the Veteran submitted a Notice of Disagreement (NOD) asserting that during service on two different dock landing ships (LSDs) he served on gun mounts that were very noisy when the ship was at general quarters. He also asserted that while serving on the USS America his duty station was under the catapults, and that the noise there was deafening when aircraft were launched. The Veteran testified before the Board in March 2011 in which the Veteran's representative asserted on the Veteran's behalf that the Veteran had tinnitus ever since service, that the Veteran had progressive hearing loss since discharge from service and that the Veteran had no significant noise exposure after service (the Veteran had worked for the state road department, but he worked in Parks and Recreation where there was no significant noise exposure). The Veteran testified that most of the shooting was performed during exercises near Guantanamo Bay. On the USS America the catapult ran straight across the Veteran's bunk, and was very loud. He asserted that during service he complained several times of hearing loss and ringing in the ears, but nothing was noted in STRs at the time. Review of the evidence above shows the Veteran to be competently diagnosed with bilateral SNHL to a degree considered to be disabling within VA criteria, as well as with tinnitus. Accordingly, the first element of service connection - medical evidence of the claimed disability - is met. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000). Review of the STRs does not show the Veteran to have had hearing loss to a degree considered disabling under VA criteria (per 38 C.F.R. § 3.385) during service or at the time of discharge from service, and the VA audiology reports dated in October 1999 and March 2004, which document essentially normal hearing, indicate the Veteran did not have hearing loss to a compensable degree within the first year after discharge from service. Accordingly, hearing loss is not shown to have been manifest during service or to a compensable degree within the first year after discharge from service. The question accordingly arises as to whether the Veteran has hearing loss that became manifest after discharge from service, but incurred secondary to acoustic trauma during service. Where an opinion is used to link a current disability to a cause during service, a competent opinion of a medical professional is required. Caluza, 7 Vet. App. 498. In this case, the competent and uncontroverted medical opinion of record, in the form of the VA audiological evaluation in December 2009, states that the Veteran's claimed hearing loss and tinnitus are not related to service. The Board notes at this point that the VA audiologist was demonstrably fully informed of the pertinent factual premises of the case and also provided a fully-articulated opinion supported by reasoned analysis. The opinion of the audiologist is accordingly probative under the criteria of Nieves-Rodriguez. The Board acknowledges at this point that the audiometer results obtained at the Veteran's separation examination appear to show diminished hearing acuity when compared to the pre-induction examination. However, the Board is not competent to make any inferences as to medical etiology, or degree of disability as to a claim for benefits, without a solid foundation on the record, grounded in medical evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). The examining audiologist in this case specifically considered the pre-induction and separation examinations but found nonetheless that the Veteran's hearing was not damaged during service; such finding is not controverted by any other medical opinion of record. VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza, 7 Vet. App. 498. Accordingly, in addition to the medical evidence cited above the Board has considered the lay evidence submitted by the Veteran in the form of his testimony before the Board, his correspondence to VA and his statements to various medical providers and examiners. The Board must consider the purpose for which lay evidence is offered. Washington v. Nicholson, 19 Vet. App. 362 (2005). The Veteran is competent and credible in describing the noise to which he was exposed in service, but to the degree that the Veteran offers his opinion regarding a relationship between remote acoustic trauma in service and a current disability, the Board finds that this is a complex medical question not within the competence of a layperson. Kahana, 24 Vet. App. 428. In that regard, the Veteran's post-service VA medical record demonstrates that his tinnitus symptoms have been associated at least in part with medications for his nonservice-connected disabilities. To the degree that the Veteran offers lay evidence to support symptoms during and after service, he is competent as a layperson to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). However, once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, 6 Vet. App. 465 (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"). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza 7 Vet. App. 498. The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board may not ignore a veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits; personal interest may, however, affect the credibility of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Veteran finds the Veteran's account of hearing loss and tinnitus during service and continuous since service to be not credible because it is inconsistent with the STRs and post-service treatment records. The Veteran's account of having made multiple complaints of hearing loss during service is inconsistent with the STRs, which show no indication of such complaints and affirmatively document normal hearing at the time of separation from service. Similarly, the Veteran's account of hearing loss and tinnitus ever since discharge from service is inconsistent with essentially normal hearing demonstrated by VA audiology notes in 1999 and 2004, many years after discharge from service, and his account in October 1999 of current tinnitus that was only periodic in nature. In sum, based on the evidence and analysis above the Board has found the Veteran does not have a bilateral hearing loss disability or tinnitus that is due to or aggravated by his active service. Accordingly, the criteria for service connection are not met. Because the preponderance of the evidence is against the claim the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs