Citation Nr: 1322319 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 10-31 140 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from June 1971 to June 1973. These matters come before the Board of Veterans' Appeals (Board) from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In that decision, the RO denied entitlement to service connection for a bilateral hearing loss disability and tinnitus. FINDINGS OF FACT 1. The Veteran does not have a current bilateral hearing loss disability. 2. Tinnitus did not manifest in service or for many years thereafter, and is unrelated to service. CONCLUSIONS OF LAW 1. A bilateral hearing loss disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012). 2. Tinnitus was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in June 2008 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. The case was most recently readjudicated in the June 2010 statement of the case. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording the Veteran a September 2008 VA audiological examination, discussed below. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. The Board will therefore proceed to the merits of the appeal. Analysis Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C.A. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Neither tinnitus nor bilateral hearing loss disability is on the list of chronic diseases in the statute or regulation. VA policy, however, is to consider sensorineural hearing loss as an organic disease of the nervous system, which is one of the chronic diseases listed in the statute and regulation. See, e.g., VA Adjudication Manual Rewrite, M21-1MR III.iv.4.B.12.a (June 5, 2012) ("Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 C.F.R. 3.309(a)"). The Veteran has not, however, been diagnosed with sensorineural hearing loss or hearing loss of any kind, for the reasons explained below. Moreover, neither hearing loss nor tinnitus was noted in the service treatment records. In addition, in Walker, the Federal Circuit noted without extensive discussion that because the Veteran sought entitlement to service connection for bilateral hearing loss disability, a disease not listed as a chronic disease in the statute or regulation, the chronicity and continuity provisions of 38 C.F.R. § 3.303(b) were inapplicable. Id. at 1340. The Federal Circuit recently reaffirmed this view in an unpublished decision. See Jackson v. Principi, No. 2012-7179, 2013 WL 2461843, at *3-4 (Fed. Cir. June 10, 2013). For these reasons, the chronicity and continuity provisions of 38 C.F.R. § 3.303(b) are not for application in this case. Whether service connection is claimed on a direct or presumptive basis, a necessary element for establishing such a claim is the existence of a current disability. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (38 U.S.C.A. § 1110 requires the existence of a present disability for VA compensation purposes). VA regulations provide that impaired hearing 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. The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran filed his claim for entitlement to service connection for bilateral hearing loss disability in May 2008. For the following reasons, the Veteran has not met the current disability requirement with regard to the claim for entitlement to service connection for a bilateral hearing loss disability. In his May 2008 claim, the Veteran requested a VA examination and one was provided in September 2008. There were no audiometric test scores in the evidence of record prior to that time. An April 2008 VA otolaryngology note indicated that the Veteran had a 6 month history of clogged ears and buildup of ear wax. The resident physician who prepared the note wrote, "No appreciable hearing loss. No other (ear, nose, throat) problems." The audiologist who conducted the September 2008 VA audiological examination, after noting that he had reviewed the claims file and conducted audiometric testing, wrote: It was observed that the results on audiological evaluation provided by the Veteran did not seem to correlate to his abilities in everyday conversations. Therefore some tests were repeated and examined for variability of responses. Variability of responses were indeed found. There was also a discrepancy between inter-test agreement indicating that his responses reflect a lack of cooperation with test procedures. This is indicative of a functional hearing loss indicating the Veteran misrepresented his hearing. The Veteran was pleasant in demeanor but due to his lack of cooperation, the Veteran's responses were not to be considered reliable, therefore the Veteran failed to comply with the examination procedures and further testing was halted, with results obtained not reported. In a VA Form 646, the representative wrote that, although the examiner indicated that the examination could not be completed due to the appellant's lack of cooperation, there was no indication that the Veteran was given notice of why the exam was not completed. He therefore requested a remand for a new VA examination. For the following reasons, the Board will deny the request for a new examination as well as the claim for entitlement to service connection for bilateral hearing loss disability. The Federal Circuit recently wrote, "In the case of competent medical evidence, the VA benefits from a presumption that it has properly chosen a person who is qualified to provide a medical opinion in a particular case." Parks v. Shinseki, 716 F.3d 581, 585 (Fed. Cir. 2013). The appellant bears the burden of rebutting the Board's presumption of competence. Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009). Neither the Veteran nor his representative have raised any specific challenge to the qualifications of the audiologist who conducted the September 2008 VA examination. The Board therefore presumes that he was qualified to administer the audiological testing on the September 2008 VA examination. Moreover, the audiologist gave a detailed, reasoned, and clear explanation as to why he concluded that the Veteran was misrepresenting his hearing and not complying with the test procedures. This opinion is therefore entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). As the Veteran misrepresented his hearing and did not comply with the examination procedures, the audiologist's decision not to report the test scores was warranted. In the absence of these test scores, there is no medical evidence of a current hearing loss disability. Moreover, the only other medical evidence to address this question was the April 2008 statement of the VA resident physician that there was no appreciable hearing loss. While veterans are competent to testify to some medical matters, VA has specifically determined that the question of whether hearing loss constitutes a disability is to be determined by specific types of audiometric testing conducted by an appropriate professional. See 38 C.F.R. § 3.385 (describing audiometric and speech recognition tests). In these circumstances, the Veteran is not competent to opine that he has a current hearing loss disability under VA law and regulations. Cf. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). The Veteran has therefore not met his burden of showing that he has a current hearing loss disability and thus failed to establish an essential element of this service connection claim. 38 U.S.C.A. § 5107(a) (a claimant has the responsibility to present and support a claim for VA benefits); Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. Cir. 2009) (the "support" requirement of section 5107(a) obligates the claimant to provide some evidentiary basis for his benefits claim). As to tinnitus, veterans are competent to identify the presence of this disease. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). The Veteran has therefore met the current disability requirement. As to in-service incurrence, the Veteran wrote in his claim that in service he was a radio telephone operator assigned to an artillery unit and worked in close proximity to the actively firing batteries without ear protection equipment. He wrote in his November 2008 notice of disagreement that as a field radio teletype operator he worked with field generators, and that teletype machines constantly clacked as they typed messages and that this noise became deafening after several hours on them. The Veteran indicated in his written statement that he was hearing noise in his ears in service and that he experienced tinnitus since that time. Lay witnesses are competent to testify as to their observations, but this testimony must be weighed against the other evidence of record. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The other evidence in this case contradicts the Veteran's statements that he experienced tinnitus in and since service. First, on the February 2003 separation examination, the ears were normal. Second, the service treatment records reflect that the Veteran complained of and was treated for other symptoms during service but not ringing in the ears. Third, the September 2008 VA examiner indicated that the Veteran did not associate his tinnitus with service and stated that he did not have any tinnitus until taking a medication for his feet about a month previously. The Veteran appeared to contest this statement in his March 2009 notice of disagreement when he wrote that he had noise in his ears while in service and "I don't know where the examiner got 15 years from." In addition, as noted by the VA examiner, the VA treatment records contain complaints regarding other problems but not tinnitus, including the April 2008 note indicating wax in the ears but no other ear, nose, and throat problems. Taken together, the above evidence weighs against a finding that the Veteran experienced tinnitus in service. The contemporaneous finding on the separation examination indicates that the Veteran did not complain of tinnitus at the time of separation. In addition, the absence of any complaint of tinnitus while there were complaints of other disorders, both in service and in post service treatment notes, warrants the drawing of a negative inference. Buczynski v. Shinseki, 24 Vet. App. 221, 226-27 (2011) (where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the condition or symptoms did not exist). Moreover, the statement made to a health care professional during an examination is of greater weight than statements made during the course of an appeal from the denial of compensation benefits. See Fed. R. Evid. 803(4) (noting that statements made to physicians for the purposes of diagnosis and treatment are exceptionally trustworthy and not excluded by the hearsay rule because the declarant has a strong motive to tell the truth in order to receive proper care); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ("[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons"); Pond v. West, 12 Vet. App. 341, 345 (1999) (interest may affect the credibility of testimony). Finally in this regard, the Board notes the passage of a lengthy period of time during which the Veteran did not complain of tinnitus. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (the Board may consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue). The Veteran's statement that he experienced tinnitus in and since service is not credible and the weight of the evidence is against in-service incurrence of this disorder. The evidence also weighs against a nexus between current tinnitus and service. The only medical opinion on this question is that of the September 2008 VA examiner. After reviewing he claims file and examining the Veteran, he wrote that tinnitus occurred too long after the Veteran's military service for it to have been caused by service. He noted that the Veteran did not associate his tinnitus with service and stated that he did not have tinnitus until taking medication for his feet about a month previously. He also noted that the record revealed several medical consultations but tinnitus was not one of the complaints. The examiner therefore concluded that it was less likely than not that tinnitus was service connected. As the VA examiner explained the reasons for his conclusion based on an accurate characterization of the evidence of record, his opinion is entitled to significant probative weight. See Nieves-Rodriguez, 22 Vet. App. at 304. Moreover, there is no medical opinion in the evidence of record to the contrary. As to the Veteran's statements that his tinnitus is related to service (as opposed to his competent statement that he experiences ringing in the ears), this appears to be testimony as to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau, 492 F.3d at 1377, n. 4. To the extent that this testimony is competent, the specific, reasoned opinion of the September 2008 VA examiner is of greater probative weight than the Veteran's general lay assertions. For the foregoing reasons, the preponderance of the evidence is against the claims for entitlement to service connection for bilateral hearing loss disability and tinnitus. The benefit-of-the-doubt doctrine is therefore not for application, and the claims must be denied. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs