Citation Nr: 1324613 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 10-03 826 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from January 1968 to December 1969, which included a tour of duty in the Republic of Vietnam. He is in receipt of the Combat Infantryman's Badge (CIB), among other military citations. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Board has reviewed the Veteran's physical claims file, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. The Veteran's Virtual VA file contains VA treatment records dated from November 2008 to December 2011 and show continued treatment for hearing problems. The Board notes that the presence of a current bilateral sensorineural hearing loss disability and current tinnitus is not in dispute. Rather, the question at issue in this case is whether the Veteran's current bilateral sensorineural hearing loss and tinnitus are causally or etiologically related to service. The physical claims file includes ample evidence of current treatment for bilateral sensorineural hearing loss and tinnitus, and this evidence was previously considered by the RO. The VA treatment records in the Veteran's Virtual VA file showing continued treatment for sensorineural hearing loss and tinnitus are merely cumulative and duplicative of evidence previously considered, and only supports an already substantiated element of current disability; therefore, there is no reasonable possibility that such records could aid in substantiating the claim. In consideration of the foregoing, the Board finds that no waiver of the additional evidence in the Virtual VA file is needed; therefore, the Board will consider this evidence in the first instance during the course of appellate review. 38 C.F.R. §§ 19.9, 20.1304(c) (2012). Although the Veteran initially requested a hearing before a Decision Review Officer (DRO) when he submitted the January 2010 VA Form 9, the Veteran cancelled the DRO hearing scheduled for May 2010 and agreed to submit additional evidence in support of the appeal. See May 2010 VA Form 21-0820. The Veteran had previously stated that he did not want a Board hearing on the VA Form 9. FINDINGS OF FACT 1. The Veteran engaged in combat with the enemy during service. 2. The Veteran was exposed to loud noise during service. 3. The Veteran did not have chronic symptoms of bilateral sensorineural hearing loss during service or continuous symptoms of bilateral sensorineural hearing loss since service. 4. Bilateral sensorineural hearing loss did not manifest to a compensable degree within one year of service separation. 5. The Veteran currently has a bilateral hearing loss disability for VA disability compensation purposes. 6. The Veteran's bilateral sensorineural hearing loss is not causally related to service. 7. The Veteran's current tinnitus symptomatology had its onset during service. CONCLUSIONS OF LAW 1. Bilateral sensorineural hearing loss was not incurred in active military service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1154(b), 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 2. Resolving reasonable doubt in the Veteran's favor, tinnitus was incurred in active military service. 38 U.S.C.A. §§ 1110, 1154(b), 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 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). 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). This notice should be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In a November 2008 notice letter sent prior to the initial denial of the claims for service connection, the RO apprised the Veteran of the information and evidence necessary to substantiate the claims for service connection, which information and evidence that he was to provide, and which information and evidence that VA would attempt to obtain on his behalf. In this regard, the RO advised the Veteran of what the evidence must show to establish entitlement to service-connected compensation benefits, and described the types of information and evidence that the Veteran needed to submit to substantiate the claims. The RO also explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of the claims. The RO further informed the Veteran how VA determines the disability rating and effective date once service connection is established, which satisfied Dingess notice requirements. In consideration of the foregoing, the Board finds that the VCAA notice requirements were fully satisfied prior to the initial denial of the claims, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Regarding VA's duty to assist in claims development, the record contains all available evidence pertinent to the appeal. VA has requested records identified throughout the claims process. The Veteran was given appropriate notice of the responsibility to provide VA with any treatment records pertinent to the appeal, and the record contains sufficient evidence to make a decision on the appeal. The complete service treatment records are included in the record, and post-service treatment records identified as relevant to the appeal have been obtained or otherwise submitted. Additional treatment records found in the Veteran's Virtual VA file show treatment for bilateral sensorineural hearing loss and tinnitus and are cumulative and duplicative of evidence previously considered by the RO in the first instance. In April 2009, the Veteran underwent a VA audiological examination in connection with the appeal. At that time, the VA audiological examiner considered the Veteran's past and present hearing-related complaints and treatment, reviewed the claims file, and performed a thorough audiological examination. The VA audiological examiner diagnosed bilateral sensorineural hearing loss and tinnitus and provided a medical opinion based on an accurate medical history, consideration of the Veteran's current complaints and treatment, and the findings shown on the audiological examination. The Veteran has asserted that the April 2009 VA audiologist did not consider the hearing disabilities fairly or accurately and was biased against him when rendering the medical opinion. However, the Veteran did not identify any information that he believed to be inaccurate. Upon review, the Board finds no evidence of inaccuracies in the April 2009 VA audiological examination report. Regarding the Veteran's assertion of bias of the April 2009 VA audiological examiner, the only reason articulated by the Veteran was that the VA audiologist wrote that the Veteran had normal hearing for VA purposes. See July 2009 VA Form 21-4138 and January 2010 VA Form 9. The April 2009 VA audiologist performed audiometric testing and, indeed, noted that the pure tone results for the left ear were within normal limits for VA purposes, which is consistent with the criteria for a hearing loss "disability" under 38 C.F.R. § 3.385. However, the VA audiologist also noted that the speech recognition score using the Maryland CNC test showed a left ear hearing disability. The April 2009 VA audiologist diagnosed a current bilateral hearing loss disability and current tinnitus based on speech recognition scores demonstrated during the Maryland CNC test and pure tone results for the right ear. Therefore, the presence of a current disability is not in dispute for either claim, and the reason given by the Veteran for why he believed that the April 2009 VA audiologist was biased against him is without merit. For these reasons, the Board finds the April 2009 VA audiological examination and medical opinion are adequate, and no further medical examination or medical opinion is needed. Neither the Veteran nor the representative has made the RO or the Board aware of any other evidence relevant to the appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the appeal. In view of the foregoing, the Board will proceed with appellate review. Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Veteran is currently diagnosed with bilateral sensorineural hearing loss. Sensorineural hearing loss is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable with respect to that diagnosis. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). The Veteran's currently diagnosed tinnitus is not a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are not applicable with respect to that claim. In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as an organic disease of the nervous system (e.g., sensorineural hearing loss), become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. For purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz 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. VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Where a current disability due to hearing loss is present, service connection can be granted for a hearing loss disability 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). Service Connection for Bilateral Sensorineural Hearing Loss Analysis The Veteran contends that he currently suffers from bilateral hearing loss due to military noise exposure. He asserts that he was exposed to the loud noise of weaponry and combat while performing his duties as a light weapons infantryman during his tour of duty in the Republic of Vietnam. After a review of the evidence, the Board finds that the Veteran currently has a bilateral hearing loss disability that meets the VA regulatory criteria at 38 C.F.R. § 3.385. At the April 2009 VA audiological examination, pure tone thresholds, in decibels, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 20 35 30 30 LEFT 10 15 35 25 25 The speech recognition score with the Maryland CNC Test was 92 percent bilaterally. There is no indication that the audiometric results are unreliable or otherwise inadequate. The audiologist also noted that the Veteran demonstrated normal to mild sensorineural hearing loss bilaterally. The above evidence sufficiently establishes a "disability" of current bilateral hearing loss as defined by 38 C.F.R. § 3.385 (referred to as "impairment"), as the speech recognition scores using the Maryland CNC Test are less than 94 percent for both ears. Also, for the right ear, the auditory threshold at the 2000 Hz, 3000 Hz, and 4000 Hz frequencies is 26 decibels or greater. The question of whether there is a current bilateral hearing loss disability for VA purposes is established; therefore, the Board will next consider whether the current hearing loss disability was incurred in service. The Board next finds that the evidence shows that the Veteran was exposed to loud noises (i.e., suffered acoustic trauma) during service. The Veteran's DD Form 214 shows that he had Vietnam service, served as a light weapons infantryman, and is in receipt of the CIB. The Veteran has reported being exposed to loud noise during his period of service. The Board finds that the Veteran's competent lay account of having been exposed to military noise is consistent with the circumstances, conditions, and hardships of his service and is, therefore, credible. 38 U.S.C.A. § 1154(b). The evidence does not demonstrate chronic symptoms of sensorineural hearing loss during service or continuous symptoms of sensorineural hearing loss since service separation. The Veteran's service treatment records show hearing within normal limits and are negative for chronic symptoms of bilateral hearing loss disability in service. Also, the lay and medical evidence does not show continuous symptoms of a bilateral sensorineural hearing loss disability since service separation; therefore, presumptive service connection under the provisions of 38 C.F.R. § 3.303(b) is not warranted based on either "chronic" in-service or "continuous" post-service symptoms. Additionally, the evidence does not show that the Veteran's bilateral sensorineural hearing loss disability manifested to a compensable (i.e., at least 10 percent) degree within one year of service separation; therefore, presumptive service connection under the provisions of 38 C.F.R. § 3.309(a) is not warranted. On the question of nexus between current bilateral sensorineural hearing loss and service, the Board finds that the weight of the evidence is against finding that the Veteran's bilateral hearing loss disability is causally related to the in-service noise exposure. The first evidence of a bilateral hearing loss disability is not shown until 2009, approximately 40 years after service separation. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). Also, the medical opinion evidence weighs against the claim. After review of the record and consideration of the Veteran's in-service noise exposure, the April 2009 VA audiologist opined that the Veteran's bilateral hearing loss disability was less likely than not related to acoustic trauma/noise exposure during service. When providing the rationale for the medical opinion, the April 2009 VA audiologist explained that the Veteran's entrance and separation audiograms showed hearing within normal limits bilaterally, with no degradation of puretone thresholds during the time in service. The April 2009 VA audiologist further commented that, according to the Deputy Director of Speech Pathology and Audiology for VA, the Institute of Medicine's landmark study on military noise exposure indicated that there was no scientific basis for delayed or late onset noise-induced hearing loss. The April 2009 VA audiologist wrote that, in cases where there were entrance and separation audiograms and such tests were normal, there was no scientific basis for concluding that hearing loss that develops 20 or 30 years later is causally related to military service; therefore, audiologists have no scientific basis for concluding that delayed onset hearing losses exist. The April 2009 VA audiologist has specialized medical expertise and training in auditory matters, had adequate facts and data on which to base the medical opinion, and provided a sound rationale for the medical opinion. There is no competent medical opinion to the contrary of record. For these reasons, the April 2009 VA medical opinion is of great probative value. Although the Veteran has asserted that his current bilateral hearing loss disability is causally related to noise exposure during service, he is a lay person and does not have the requisite medical expertise to be able to render a competent medical opinion regarding the cause of his bilateral sensorineural hearing loss. The etiology of the disability is a medical etiological question dealing with the origin and progression of the Veteran's auditory (nervous) system, and a hearing loss disability is diagnosed primarily on objective clinical findings and audiometric testing. Thus, while the Veteran is competent to relate symptoms of hearing loss that he experienced at any time, he is not competent to opine on whether there is a link between bilateral hearing loss and active service, including combat noise exposure, because such diagnosis requires specific medical knowledge and training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Furthermore, as stated above, the Veteran's bilateral hearing loss did not manifest during service or to a compensable degree within a year after service separation, and the evidence does not show that there has been a continuity of symptomatology since service. The April 2009 VA audiologist opined that it was less likely than not that the Veteran's hearing loss disability was attributable to in-service noise exposure and provided a sound rationale for the medical opinion. Thus, the weight of the evidence is against a finding that were incurred in or otherwise caused by active service. For these reasons, the Board affords the Veteran's opinion that the current hearing loss disability is the result of in-service noise exposure less probative value than the April 2009 VA audiologist's medical opinion. Thus, in consideration of the foregoing, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim of service connection for bilateral sensorineural hearing loss and, consequently, the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Service Connection for Tinnitus Analysis The Veteran also seeks service connection for tinnitus, on the basis that he currently suffers from tinnitus as a result of combat noise exposure while serving in Vietnam as a light weapons infantryman. He contends that he currently has ringing in the ears as a result of the acoustical trauma sustained in service and has had tinnitus since service. After review of the evidence of record, both lay and medical, the Board notes that there is both unfavorable and favorable evidence regarding the question of whether the Veteran has tinnitus causally related to the period of active service. On the one hand, the Veteran's service treatment records are absent of any complaint, finding, or treatment for tinnitus, and the Veteran's ears and ear drums were clinically evaluated as normal at the time of the service separation examination in November 1969. Additionally, the April 2009 VA audiologist opined that tinnitus was at least as likely as not a symptom associated with the Veteran's hearing loss, which was less likely as not related to in-service noise exposure. On the other hand, the Veteran has reported noise exposure during service, and noise exposure is consistent with the circumstances, conditions, and hardships of his combat service. At the April 2009 VA audiological examination, the Veteran reported that he had experienced bilateral tinnitus since 1968 or 1969. The Veteran had active service from January 1968 to December 1969; therefore, his report at the April 2009 VA audiological examination relates the onset of tinnitus symptomatology to his time in service. Tinnitus is a condition capable of lay observation and diagnosis. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). There is no indication in the record that the Veteran's account of having had tinnitus symptomatology since service is not credible. Thus, while service treatment records do not show of any complaint, finding, or treatment for tinnitus in service, the records do show that the Veteran was exposed to loud combat noise during service. Although the medical opinion evidence has identified tinnitus as a symptom of the Veteran's hearing loss disability, which is not related to service, the Veteran has competently asserted that he has experienced tinnitus symptomatology since service and there is no indication in the record that the account is not credible. Therefore, upon consideration of the foregoing, the Board finds that the evidence both for and against the material issue of whether the Veteran has had tinnitus symptomatology since active service is in relative equipoise. Resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for tinnitus is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs