Citation Nr: 1324463 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 11-06 702 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for a bilateral hearing disability. REPRESENTATION The Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1961 to December 1963. These matters come to the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for both issues on appeal. FINDINGS OF FACT 1. The Veteran has a current bilateral hearing loss disability and tinnitus. 2. The Veteran experienced acoustic trauma during service. 3. The evidence is in relative equipoise on the question of whether tinnitus is related to service. 4. The preponderance of the evidence is against the claim for service connection for a hearing loss disability. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1101, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for service connection for a bilateral hearing disability have not been met. 38 U.S.C.A. §§ 1101, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012). Notice and Assistance Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. As to the Veteran's claim for service connection for tinnitus, the Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. As to the Veteran's claim for service connection for hearing loss, an April 2010 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of his disability on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in a May 2011 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. 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); see also Mayfield, 444 F.3d at 1333-34. The Veteran's service treatment records and private treatment records have been obtained; he did not identify any outstanding private or VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). A VA examination was conducted in July 2010 and addendum opinions were obtained in August 2010 and May 2011; the Veteran has not argued, and the record does not reflect this examination or these opinions were inadequate for VA compensation purposes. Id.; Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claim file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); see also Dingess/Hartman, 19 Vet. App. at 486. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran seeks service connection for hearing loss and tinnitus which he believes is caused by his exposure to acoustic trauma in service. Generally, to prevail on a claim of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed inservice disease or injury and the present disease or injury. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As to chronic disorders, as defined in 38 C.F.R. § 3.309 (a) (2012), the second and third elements may be established by showing continuity of symptomalogy. Continuity of symptomatology may be shown by demonstrating (1) that a condition was noted during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr, 21 Vet. App. at 307. Service connection also may be granted on a presumptive basis for certain chronic disorders when they are manifested to a compensable degree within the initial post-service year. 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 any current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). 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. Jandreau, 492 F.3d at 1376-77. 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. See id. Hearing loss will be considered to be a disability when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz exceeds 40 decibels; or the thresholds of at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385 (2012). The threshold for normal hearing is from 0 to 20 decibels and higher threshold levels indicate some degree of hearing loss. Section 3.385 does not preclude an award of service connection for a hearing disability established by post-service audiometric and speech-recognition scores, even when hearing was found to be within normal limits on audiometric and speech-recognition testing at the time of separation from service. Hensley v. Brown, 5 Vet. App. 155 (1993). The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001). 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, and consistency with other evidence submitted on behalf of the Veteran, as well as the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). In determining whether service connection is warranted for a disability, 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 preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Veteran's military occupational specialty (MOS) of helicopter mechanic shows that the Veteran experienced noise exposure in service. The June 2010 VA audiological examination establishes the presence of a current bilateral hearing loss disability and tinnitus. A. Tinnitus In 2009, the Veteran stated that his tinnitus began in service and has continued ever since. He is competent to report the onset and continuous symptoms of tinnitus. See Barr, 21 Vet. App. at 307. During a July 2010 VA audiological examination, the examiner reported that the Veteran stated that tinnitus began 20 years after service. The Board has no way of determining whether the Veteran did, more than a year after stating that tinnitus began during service, subsequently tell a VA examiner that tinnitus began 20 years after service, or whether the examiner misinterpreted what he said. At worst, the evidence with respect to the association between the Veteran's tinnitus and his active service is in equipoise. Accordingly, service connection is warranted. B. Hearing Loss Service treatment records show no complaints, findings, or diagnoses of a hearing loss disability. VA examiners converted the audiological data to International Standards Organization (ISO) units as required for all audiograms before November 31, 1967. A January 1961 enlistment examination shows that a Whisper test indicated normal hearing. Interim audiometric tests in November 1961 and May 1963 show no degree of hearing loss because all thresholds were below 21 decibels. An October 1963 separation audiogram shows pure thresholds at 500, 1000, 2000, and 4000 Hertz were 20, 5, 15, and 10 decibels respectively in the right ear, and 10, 5, 25, and 10 decibels respectively in the left ear. On a corresponding Report of Medical History, the Veteran specifically denied any trouble with his ears. On a contemporaneous Statement of Medical Condition, the Veteran stated that he was in good health and without medical defect. The Veteran does not contend that his current hearing loss disability had its onset during service, nor does the Veteran assert continuity of symptomatology. There is no evidence of either. The Veteran's spouse stated that the Veteran has had hearing problems since shortly after discharge. At a July 2010 VA audiology examination, the Veteran reported noise exposure in-service, as a helicopter mechanic and during weapons training; and post-service, during construction work, rubbish service, farming, hunting, motorcycle riding, and operating a chainsaw. An audiogram showed puretone thresholds at 500, 1000, 2000, 3000, and 4000 Hertz were 10, 15, 30, 65, and 80 decibels respectively in the right ear; and 10, 10, 30, 70, and 80 decibels respectively in the left ear. Speech discrimination scores were 96 percent in the right ear and 78 percent in the left ear. The audiologist diagnosed bilateral hearing loss, consistent with sensorineural impairment. The examiner opined that bilateral hearing loss was not related to service. The rationale offered was that a discharge audiogram showed normal hearing and there was no evidence of a significant shift in thresholds during service. An April 2011 private audiometric report shows decreased hearing. The audiologist diagnosed the Veteran with normal sloping to moderately severe sensorineural hearing loss in the right ear and normal sloping to severe sloping to severe sensorineural hearing loss in the left ear. The audiologist did not opine as to whether the Veteran's current hearing loss was related to the Veteran's military or post-military recreational and occupational noise exposure. This report has no probative value with respect to the question of whether the current hearing loss is related to service. In a May 2011 "clarification" of his previous July 2010 report, the VA examiner pointed out that current science shows that the effects of noise exposure on pure-tone thresholds are measurable immediately and are extremely unlikely to manifest years after exposure. With normal hearing upon discharge, there is no evidence of hearing loss due to military noise exposure. Any worsening after service is due to noise exposure during the 40 years between separation from service and the current diagnosis. While it is not possible to determine a significant shift in service, even if a shift occurred, any further hearing loss would not be due to noise exposure during service. There is no competent evidence of a nexus between the in-service noise exposure and the Veteran's current bilateral hearing disability. VA examiners provided negative nexus opinions, supported by an adequate rationale, including the fact that any shift in hearing at discharge was not significant. Presumptive service connection is not possible because a hearing loss disability did not manifest to a compensable degree in service or within one year after separation. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1) (2012). Competent VA medical opinions in July 2010, August 2010, and May 2011 conclude that it is less likely as not that the Veteran's bilateral hearing loss disability was caused by his military service. These opinions are of significant probative value. The private medical opinion, while likewise competent and credible, does not address etiology and is of no probative value. The Veteran and his spouse are competent to report observable symptoms of hearing loss. They have not shown, however, that they have the training or expertise to offer a competent opinion as to etiology. See Barr, 21 Vet. App. at 307. While the Board has considered and accepts the statements of the Veteran's spouse as to the Veteran's hearing difficulty after discharge, she does not, and cannot, say that such difficulty equates to a compensable degree of hearing loss. Determining the precise etiology of the Veteran's hearing loss is not simple question, capable of being addressed by a layman. Here, the Veteran experienced significant occupational and recreational noise exposure between service and the initial manifestation of his hearing loss disability, further complicating any nexus determination. Consequently, the Board affords no probative value to the statements of the Veteran and his spouse with respect to the etiology of either of the hearing loss. The preponderance of the evidence is against the claim for service connection for a bilateral hearing loss disability; there is no doubt to be resolved; and service connection is not warranted. ORDER Service connection for tinnitus is granted. Service connection for a bilateral hearing loss disability is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs