Citation Nr: 1323659 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 10-47 556 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant, appellant's spouse and son ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran served on active duty from December 1950 to December 1952. This matter came to the Board of Veterans' Appeals (Board) on appeal from a May 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board remanded the Veteran's claim in April 2013. As the Board has remanded the Veteran's claim, the Board acknowledges that it has a duty to ensure compliance with its remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). For reasons explained in greater detail below, however, the Board does find substantial compliance with its remand instructions, and determines that the case may move forward without prejudice to the Veteran. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial compliance with the terms of the Board's remand would be required, not strict compliance). The Veteran presented testimony at a Travel Board hearing chaired by the undersigned Veterans Law Judge in May 2012. A transcript of the hearing is associated with the claims folder. 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. Bilateral hearing loss disability was not shown in service or for several years thereafter, and the most probative evidence indicates that the Veteran's current bilateral hearing loss is not related to service. 2. Tinnitus was not shown during the appellant's service or for many years thereafter, and the most probative evidence fails to link the appellant's current tinnitus to service. CONCLUSIONS OF LAW 1. The requirements for establishing service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The criteria for establishing service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1101, 1110, 1137, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 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 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). 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). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in a December 2009 letter issued prior to the decision on appeal, the appellant was provided notice regarding what information and evidence is needed to substantiate his claims for service connection, as well as what information and evidence must be submitted by the appellant and what information and evidence will be obtained by VA. The December 2009 letter also advised the appellant of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ), at which he presented oral argument in support of his hearing loss and tinnitus claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ, sought to identify any pertinent evidence not currently associated with the claims, and focused on the elements necessary to substantiate the claims. The Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims, and has not asserted VA failed to comply with 38 C.F.R. § 3.103(c)(2). As such, the Board finds that, consistent with Bryant, the VLJ complied with these regulatory requirements. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the physical and electronic claims file includes the appellant's post-service VA and private treatment records, and VA examination reports. The Board notes the Veteran's service treatment records, aside from a Report of Medical Examination for separation purposes, are unavailable. When service treatment records are lost or missing, VA has a heightened obligation to fully explain its decision. See Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). In notifying the Veteran that he may submit lay statements from individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service hearing loss and tinnitus, obtaining VA treatment records from the Kansas City VA Medical Center dated from December 2011, and readjudicating the claims, there was compliance with the April 2013 remand directive as there is now sufficient information and evidence to adjudicate the issues. See Stegall v. West, 11 Vet. App. 268 (1998) (where the remand orders of the United States Court of Appeals for Veterans Claims (Court) or Board are not complied with, the Board itself commits error as a matter of law when it fails to ensure compliance, and further remand will be mandated). See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (discussing situations when it is alternatively permissible to have "substantial" compliance with a remand directive, even if not "exact" or "total" compliance). Thus, the Board finds that the RO complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders). In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication. VA has fulfilled its duty to assist the claimant by obtaining identified and available evidence needed to substantiate the claims, and, as warranted by law. Significantly, the Veteran has not identified, and the record does not otherwise indicate, that any additional evidence exists that has not been obtained and would be necessary for a fair adjudication of the claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist the Veteran in the development of the claims. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Criteria & Factual Background The Veteran contends that service connection is warranted for bilateral hearing loss and tinnitus. The Veteran's DD Form 214 reflects that he served in an Engineer Aviation Battalion, and it is taken that he would have been exposed to loud noises. In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with active service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303 (2012). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as sensorineural hearing loss, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in 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. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 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 v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); 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 v. Nicholson, 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) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (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. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("(A) medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Hearing status shall not be considered service connected when the thresholds for the frequencies of 500, 1,000, 2,000, 3,000, and 4,000 hertz (Hz) are all less than 40 decibels; thresholds for at least three of these frequencies are 25 decibels or less; and speech recognition scores used in the Maryland CNC tests are 94 percent or better. 38 C.F.R. § 3.385. A service Report of Medical Examination dated in November 1952 for separation purposes is the only service medical record available. It reflects that the Veteran's ears were clinically evaluated as normal and it has a single number (15) typed in the whispered voice testing section of the report reflecting hearing acuity as 15/15. Although the pre-printed information on the report has a space to detail whispered voice testing results for each ear, the placement of the typed "15" in the break between the lines to report the results of each ear, is taken to mean the Veteran's hearing acuity was tested with neither ear masked, and yielded a normal result, i.e., 15/15. No hearing loss was detected or reported on this report. Private treatment records dated in April 1993 reflect that the Veteran had bilateral otitis and his ears were described as somewhat cloudy. In May 1993, the Veteran reported an earache on and off for the previous two to three months. VA treatment records dated in March 2001 reflect that the Veteran reported hearing loss gradually since service. He denied tinnitus. In September 2001, the Veteran was assessed with normal hearing for the right ear and moderate to severe sensorineural hearing loss for the left ear. The Veteran reported gradual hearing loss in the left ear over the previous three years. In November 2001, the Veteran was assessed with asymmetric sensorineural hearing loss. A letter from Dr. Bradley Thedinger of the Otologic Center, dated in November 2004 reflects that the Veteran had severe left sensorineural hearing loss. Dr. Thedinger noted that the Veteran's past noise exposure does not explain the whole degree of hearing loss. VA treatment records dated in October 2009 reflect that the Veteran had mild high frequency sensorineural hearing loss in the right ear and no measurable hearing in the left ear. In November 2009, the Veteran denied tinnitus. The Veteran underwent a VA audiological examination in April 2010. He reported military noise exposure to machinery noise as a machine operator. He also stated that there was an explosion during military training. He reported a 28 year post military noise exposure operating a printing press. He stated that he had no hearing in his left ear. He denied current complaint and previous episodes of tinnitus. Testing showed pure tone thresholds to be as follows: HERTZ 500 1000 2000 3000 4000 LEFT 105+ 105+ 105+ 105+ 105+ RIGHT 15 20 25 40 70 A speech recognition score using Maryland CNC testing was zero percent in the left ear and 90 percent in the right ear. The examiner diagnosed profound sensorineural hearing loss with poor word recognition for the left ear, and mild to severe sensorineural hearing loss in the right ear. The examiner opined that bilateral hearing loss and tinnitus are less likely as not caused by or a result of acoustic trauma during military service. With respect to tinnitus, the examiner noted that the Veteran had denied having tinnitus at the time of the examination, as well as a number of times in the past. With respect to hearing loss, the examiner explained that the loss on the left side is inconsistent with noise induced hearing loss, and that the loss on the right was no worse than from normal aging, and with a post service 28 year history of noise exposure, it was most likely a result of aging and post service noise exposure. VA treatment records dated in November 2010 reflect that the Veteran denied tinnitus. In the February 2012 VA Form 9, the Veteran stated that he had ringing in the ears on a daily basis. The Veteran underwent another VA audiological examination in January 2012. The Veteran denied recurrent tinnitus. Testing showed pure tone thresholds to be as follows: HERTZ 500 1000 2000 3000 4000 LEFT 100+ 105+ 105+ 105+ 105+ RIGHT 20 30 30 35 75 A speech recognition score using Maryland CNC testing was zero percent in the left ear and 88 percent in the right ear. The examiner diagnosed sensorineural hearing loss in both ears. The examiner opined that hearing loss is not at least as likely as not caused by or a result of an event in military service. In explaining this, the examiner acknowledged that the Veteran may have been exposed to high noise levels during military service, but noted that the audiometric configuration seen on examination was not consistent with noise induced hearing loss, and that the measurable loss of hearing in the right ear is not worse than normal aging. While the loss on the left side was unknown to the examiner, it was not consistent with acoustic trauma. Further, with the loss on the right side not worse than from normal aging, and as acoustic trauma typically affects both ears, the examiner concluded the Veteran's hearing loss was not at least as likely as not caused by service. As to tinnitus, the examiner also opined that it too is less likely as not caused by or a result of noise exposure. The examiner noted that the Veteran denied tinnitus, with multiple questions to make sure he understood the question, which was the case at the prior VA examination. The examiner also noted that the Veteran denied any other otologic conditions in 2001 and 2004, and denied tinnitus in 2010. At the May 2012 Board hearing, the Veteran stated that he had ringing in the ears during service and still had ringing in the ears. Analysis Bilateral Hearing Loss The evidence establishes that the Veteran has bilateral hearing loss that meets the threshold for service connection set forth under 38 C.F.R. § 3.385; thus, the questions for the Board are whether the Veteran's current bilateral hearing loss is etiologically related to his service, or whether his bilateral hearing loss was manifested to a compensable degree within one year from his separation from service. After a careful and thorough review of the evidence, the Board finds that the preponderance of the evidence is against the claim. Here, the Veteran's service Report of Medical Examination for separation purposes reflects that the Veteran's ears were clinically evaluated as normal and the earliest medical evidence showing the presence of some hearing loss is dated in 2001. In short, the Veteran does not contend, and the evidence does not show hearing loss disability during service or to a compensable degree within a year of service. As noted above, the April 2010 and January 2012 VA examiners opined that the Veteran's hearing loss is not at least as likely as not caused by or a result of an event in military service. The Board recognizes the Veteran's contentions that his present bilateral hearing loss is due to his military service, to include noise exposure therein. However, there is no indication that the Veteran has any specialized training to render as competent, a theory of entitlement based on a delayed onset of hearing loss following in service acoustic trauma. Accordingly, this is accorded no probative value. The examiners on the other hand are specifically trained in this regard, and charged with providing accurate, honest opinions. Those negative opinions described above are also entirely consistent with the evidence of record, and are thus afforded great probative value. To the extent that the Veteran claims service connection on the basis of chronicity or recurrence of symptoms since service, this is unwarranted. 38 C.F.R. § 3.303(b). While competent to report such facts, the contention is not consistent with the evidence of record showing an absence of hearing loss at service separation (and necessarily in service for a chronic condition), an absence of hearing loss complaints where you would expect them to be noted if they were present in the 1993 records, and the Veteran's report of a gradual loss over only the 3 previous years in 2001 records. Accordingly, the contention is not considered credible. Rather, the most probative evidence shows an absence of recurrence of symptoms since service. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for bilateral hearing loss, and the claim must be denied. In reaching this conclusion, the Board also acknowledges the suggestion by Dr. Thedinger, that there is a noise exposure component to the Veteran's hearing loss. However, he in no way related this to service, and in the context of the Veteran's life experience with only 2 years of service, and nearly 3 decades of post service noise exposure, it is reasonable to consider this to be a reference to post service noise exposure. The Board has considered the applicability of the benefit of the doubt doctrine in deciding this appeal. 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). Tinnitus Upon review of the record, the Board finds that service connection for tinnitus is not warranted. Although the Veteran indicated he had tinnitus in service on his application for benefits, and in his 2012 testimony before the Board, he has not been consistent on this point. He denied having tinnitus on occasions in 2001, 2009, 2010 and 2012. His conflicting statements raises a significant question as to the reliability of the recollections proffered in support of his claim for benefits, and thus render them not credible. In addition, as a lay person, the appellant's opinion as to the etiology of his current tinnitus is less probative than the conclusions of the April 2010 and January 2012 VA examiners that tinnitus is not likely service related. In this regard, although the presence of tinnitus is capable of lay observation, the etiology of tinnitus requires medical expertise to determine, which the appellant is not shown to possess. 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). There is no medical opinion of record linking the appellant's current tinnitus to his service. In short, there is no competent and credible evidence of tinnitus until many years after service, and the most probative evidence is against a finding that the current tinnitus is related to such service. Accordingly, the preponderance of the evidence is against the claim, and service connection for tinnitus is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant'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). 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