Citation Nr: 1323875 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 10-15 221 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from March 1968 to March 1970. He is the recipient of the Combat Infantryman Badge (CIB). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Veteran provided testimony before the undersigned Veterans Law Judge sitting at the RO in December 2010; a transcript of that hearing is of record. In November 2011, the Board remanded the case for additional development and, in April 2013 and May 2013, the Board sought expert opinions from the Veterans Health Administration (VHA). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. Bilateral hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident in service and did not manifest within one year of the Veteran's discharge from service. 2. Resolving all doubt in favor of the Veteran, tinnitus is related to his military service, to include his in-service noise exposure. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in or aggravated by the Veteran's active duty military service, nor may it be presumed to have been incurred in or aggravated by such service. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 2. Tinnitus was incurred in the Veteran's active duty military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). The VCAA notice requirements apply to all five elements of a service connection claim: (1) Veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). This notice must be provided prior to an initial decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). As relevant to the Veteran's claim of entitlement to service connection for tinnitus, as the Board's decision to grant service connection for such disorder herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the VCAA and the implementing regulations. Regarding the Veteran's claim of entitlement to service connection for bilateral hearing loss, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in December 2007 that fully addressed all required notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the Veteran of what evidence was required to substantiate his service connection claim and of his and VA's respective duties for obtaining evidence. The letter also informed the Veteran of how disability ratings and effective dates are assigned. See Dingess v. Nicholson, supra. Thus, the Board concludes that all required notice has been provided to the Veteran. Relevant to the duty to assist, the Veteran's service treatment records as well as post-service VA treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. Additionally, the Veteran was afforded VA examinations in November 2008 and January 2012, and VHA opinions were obtained in May 2013 and June 2013 order to adjudicate his service connection claim. In this regard, the Board finds that the November 2008 and January 2012 VA examinations are sufficient to address whether the Veteran has a bilateral hearing loss disability; however, the accompanying opinions, as well as the May 2013 VHA opinion, are inadequate to decide the Veteran's claim. As such, the Board sought a second expert opinion from the VHA, which was obtained in June 2013. In this regard, the June 2013 VHA examiner offered an etiological opinion as to the Veteran's bilateral hearing loss and based his conclusions on a review of the record, to include interviews with the Veteran and full examinations. Moreover, such examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); 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"). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion regarding the issue decided herein has been met. Additionally, in December 2010, the Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. In Bryant v. Shinseki, the Court held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the December 2010hearing, the undersigned Veterans Law Judge enumerated the issue on appeal. Also, information was solicited regarding the etiology of the Veteran's claimed bilateral hearing loss, to include the circumstances surrounding his in-service noise exposure, as well as continuity of symptomatology and the current nature of such disorder. Furthermore, at the hearing, the Veteran reported that he would be seeking treatment for his bilateral hearing loss in the near future. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. Id. at 497. As a result of the hearing discussion, additional development was undertaken subsequent to the hearing in order to ensure that all necessary evidence was of record, which included providing the Veteran with an opportunity to identify an outstanding treatment records, affording him a new VA examination, and obtaining etiological opinions. As such, the Board finds that, consistent with Bryant, the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. In November 2011, the Board remanded the case for additional development, to include affording the Veteran an opportunity to identify any healthcare provider who treated him for bilateral hearing loss, providing him with a VA examination so as to determine the current nature and etiology of such disorder, and having the AOJ readjudicate his claim. Thereafter, in December 2011, the Veteran was provided with a letter requesting that he identify all healthcare providers who have treated him for his bilateral hearing loss and, in January 2012, he was afforded a VA examination. While such VA examination did not include an adequate opinion, such deficiency was remedied by the attainment of the June 2013 VHA opinion. Thereafter, the Veteran's claim was readjudicated in a February 2012 supplemental statement of the case. Therefore, the Board finds that the AOJ has substantially complied with the November 2011 remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand 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 (2002). Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. Service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those diseases explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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, 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 Court has held that service connection can be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley , supra, at 159. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran is seeking service connection for bilateral hearing loss and tinnitus, which he has asserted were incurred as a result of his exposure to noise during service. In this regard, the Veteran has asserted that he was exposed to noise from mortar attacks, 50 caliber machine guns, and other small arms fire. He has also asserted that he has had problems with his ears since service. See statements from the Veteran dated October 2008 and April 2010. The Veteran's DD Form 214 reflects that the Veteran's military occupational specialty (MOS) of light weapons infantry. Therefore, his military noise exposure is acknowledged. The service treatment records (STRs) do not contain any complaints, treatment, or findings related to hearing loss or tinnitus. In fact, the Veteran's hearing was within normal limits at the March 1968 enlistment examination, as pure tone thresholds were zero decibels in every frequency from 500 to 4000 Hertz bilaterally, except for five decibels at 500 Hertz in the right ear. The February 1970 separation examination report reveals a minor downward shift in hearing acuity bilaterally, as pure tone thresholds were five decibels at 500 and 2000 Hertz in the right ear and 1000, 2000, and 4000 Hertz in the left ear, while the remaining thresholds were zero decibels. Despite the showing of a downward shift in hearing acuity during service, the Veteran's hearing was within normal limits at separation from service and he denied having hearing loss or ear trouble at that time. The first time the Veteran is shown to have hearing loss or tinnitus is in April 2005, when he was seen for a hearing evaluation at VA. At that time, he reported having military noise exposure from weapons and recreational noise exposure from chainsaws and leaf blowers, both without hearing protection. He also reported having intermittent ringing tinnitus in both ears that had persisted for years. The examining audiologist reported that the audiogram revealed sensorineural hearing loss in high frequencies in both ears. The audiologist did not provide an opinion regarding the etiology of the Veteran's hearing loss and tinnitus. The Veteran was afforded a VA examination in November 2008 to determine the likely etiology of his current hearing loss and tinnitus. At that examination, the Veteran again reported having constant ringing in both ears since the 1960s and he also complained of hearing loss. He reported having military and recreational noise exposure, although he reported using hearing protection during recreational noise exposure. Otherwise, the Veteran denied having noise exposure before service or occupational noise exposure, as he was employed as a barber after service. The final diagnosis was sensorineural hearing loss bilaterally. However, the November 2008 VA examiner opined that the Veteran's tinnitus and hearing loss are not related to acoustic trauma in the military, as she noted that the in-service audiograms showed hearing within normal limits and there was no mention of tinnitus. Because the November 2008 VA examiner's opinion was based, at least partially, on normal in-service audiogram findings and the examiner did not consider that normal hearing during service does not preclude service connection, the Board requested another examination and opinion. The Veteran was afforded a second VA examination in January 2012, at which time he was diagnosed with bilateral sensorineural hearing loss and bilateral ringing tinnitus which the Veteran attributed to his military noise exposure. However, the VA examiner opined that it is not at least as likely as not that the Veteran's hearing loss and tinnitus are caused by or a result of an event in his military service. In making this determination, the VA examiner noted that the Veteran's entrance and separation examinations showed normal hearing bilaterally and that there was no significant change in his hearing from enlistment to separation. With respect to tinnitus, the examiner also noted that there were no complaints of tinnitus in the service treatment records, that his hearing was normal at separation from service and that there were no significant changes in his hearing from entrance to separation. In April 2013, the Board found that, while the January 2012 VA examiner has provided a competent medical opinion, an additional medical opinion is necessary for the following reasons. First, the Board noted that the medical opinions in the record, inclusive of the January 2012 opinion, do not adequately consider the fact that the Veteran is presumed to have been exposed to noise during service, given his MOS and receipt of the CIB award. In addition, there remained a question as to whether the audiograms conducted during service show a decrease in the Veteran's hearing acuity from his service entrance to his separation. Moreover, the Board noted that neither examiner has considered the Veteran's entire history of noise exposure, including that which occurred during and after service, or the lay evidence of record alleging continuity of symptomatology. Therefore, the Board sought an expert opinion through the VHA. While a VHA opinion obtained in May 2013 was inadequate to address the issue, a second opinion was obtained in June 2013. Specifically, in June 2013, a VHA audiologist reviewed the entire claims file and opined that the Veteran's current hearing loss is not caused by or related to his military noise exposure. In making this determination, the VA audiologist noted the Veteran's normal hearing at entrance and separation from service and stated that the evidence clearly shows that hearing loss did not occur during service. The VA audiologist noted there is a five decibel shift at some frequencies in both ears from enlistment to separation, but she stated that the degree of change is not significant as a significant threshold shift on audiometric testing is greater than 10 decibels. The VA audiologist noted that the Veteran admitted to recreational noise exposure without hearing protection after active duty and that he has stated that his hearing has gotten worse over the years. In this regard, the VA audiologist noted that noise-induced hearing loss occurs at the time of exposure and not years after the noise exposure. The VA audiologist further noted that, if the Veteran's hearing has gotten worse over the years, it is due to civilian noise exposure, aging, or a variable other than in-service noise exposure. With respect to tinnitus, however, the VA audiologist opined it is as likely as not that the Veteran's tinnitus is related to active duty. In this regard, the VA audiologist noted that there is no complaint of tinnitus during active duty or evidence of report or treatment for trauma to the Veteran's ears during service. However, the VA audiologist based her opinion solely on the Veteran's competent and credible report of experiencing ringing in his ears since he got out of service. The June 2013 VHA opinion is considered the most probative evidence of record with respect to whether the Veteran's current hearing loss and tinnitus are related to his military service. Indeed, the June 2013 VHA opinion was based upon review of the entire claims file, including the findings and statements made at the November 2008 and January 2012 VA examinations. Moreover, the VHA examiner adequately discussed the Veteran's entire history of noise exposure, the medical evidence of record, and the lay assertions of record, which she used to provide her opinion and rationale in support thereof. The Board finds probative that the June 2013 opinion is supported by the other evidence of record, inclusive of the STRs and the competent lay evidence of record. Consequently, the Board finds that the VHA examiner's opinion offer a conclusion with supporting data as well as reasoned medical explanations connecting the two See Nieves-Rodriguez, supra; Stefl, supra. Therefore, the Board accords it great probative weight. Based on the foregoing, the Board finds the evidence of record raises a reasonable doubt as to whether the Veteran's current tinnitus is related to his military service. As noted, while there is no evidence of tinnitus during active service, the Veteran is presumed to have been exposed to noise during service and he reported having ringing in his ears since the 1960s, which is considered competent and credible lay evidence of continued symptoms since service. The Veteran has also provided competent and credible lay evidence of a current tinnitus disability and the VA audiologist who provided the VA opinion in June 2013 has opined that it is as likely as not that the current tinnitus disability is related to the Veteran's military service. As such doubt is resolved in favor of the Veteran, the Board finds that service connection for tinnitus is warranted. However, based on the foregoing, the Board finds the preponderance of the evidence is against the Veteran's claim for service connection for bilateral hearing loss. Indeed, as will be further discussed herein, chronic hearing loss is not shown during service or for at least 30 years after service and there is no evidence of continuity of related symptomatology after service. In addition, the June 2013 VA opinion, which is the most probative evidence of record, weighs against a finding that the Veteran's current bilateral hearing loss is related to his military service. Initially, the Board has considered whether presumptive service connection is warranted for bilateral hearing loss as a chronic disease. However, the record fails to show that the Veteran manifested bilateral hearing loss to any degree within the one year following his service discharge in March 1970. In fact, the Veteran is first shown to have a bilateral hearing loss disability no earlier than April 2005, more than 30 years after he was separated from service. Furthermore, while he alleged at his December 2010 Board hearing that he has noticed a decrease in his hearing acuity since his military service, he has not alleged a continuity of hearing loss symptomatology since March 1970. Therefore, the Board finds that presumptive service connection, to include on the basis of continuity of symptomatology, for bilateral hearing loss is not warranted. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. Furthermore, in the probative June 2013 VHA opinion, the examiner determined that the Veteran's current hearing loss is not caused by or related to his military noise exposure. There is no contrary medical opinion of record. The Board notes that the Veteran has contended on his own behalf that his bilateral hearing loss is related to his service, to include his in-service noise exposure. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Veteran is competent to testify to his in-service noise exposure as well as his current difficulty hearing; however, the question regarding the potential relationship between the Veteran's bilateral hearing loss and any instance of his service to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). In this regard, the impact of different types of noise exposure at varying times of the Veteran's life on his ability to hear requires knowledge of the internal auditory process. Therefore, the question of causation in this case involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. Moreover, in this case, the Veteran has only offered conclusory statements regarding the relationship between his military service and bilateral hearing loss. By contrast, the June 2013 VA audiologist took into consideration all the relevant facts in providing her opinion, which was based upon her review of the claims file and her medical expertise. As such, the Veteran's statements regarding a nexus between his hearing loss and military service are not considered competent or probative evidence. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for bilateral hearing loss. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is granted. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs