Citation Nr: 1325041	
Decision Date: 08/07/13    Archive Date: 08/13/13

DOCKET NO.  11-07 662	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1. Entitlement to service connection for hearing loss.

2. Entitlement to service connection for tinnitus.


ATTORNEY FOR THE BOARD

J. Davis, Associate Counsel



INTRODUCTION

The Veteran served on active duty from September 1960 to August 1963.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, that denied service connection for tinnitus and bilateral hearing loss.  

The Veteran did not initially elect a hearing option in his substantive appeal received in March 2011. The Cleveland RO dispatched a letter to the Veteran in March 2011 to determine whether he wanted a hearing.  In April 2011, a withdrawal of a hearing request was sent care of the Veteran's congressman, and then the Veterans Appeal was certified to the Board of Veterans' Appeals (Board) in July 2011. 

The Board notes that the Veteran was initially represented by American Veterans (AMVETS).  This representation was withdrawn in May 2010.  The Veteran was provided a letter in May 18, 2010 that stated that he could find new representation. Then, in his certification of appeal to the Board in July 2011, the Veteran was provided with 90 days to find additional representation before his appeal was certified to the Board. The Veteran has not done so.

The issue of entitlement to service connection for tinnitus is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

Bilateral hearing loss was not shown in service or within one year of service discharge; and, the competent evidence fails to establish an etiological relationship between the Veteran's diagnosed hearing loss and his active service. 

CONCLUSION OF LAW

The criteria for service connection for hearing loss have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VCAA

VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA, 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits.  As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). 

The notice required by the VCAA can be divided into three elements.  Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain.  Beverly v. Nicholson, 19 Vet. App. 394, 403   (2005) (outlining VCAA notice requirements).  Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120   (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).  

In the instant case, notice was provided to the Veteran in February 2010, prior to the initial adjudication of his claim in May 2010. The content of the notice letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify.  

VA satisfied its duty to assist the Veteran in the development of his claim and to seek relevant records.  VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The RO associated the Veteran's service treatment records and VA treatment records with the claims file. The Board notes that the Veteran is receiving Social Security Retirement Benefits and that these records do not pertain to a disability; therefore they are not relevant. Additionally, the Veteran has not identified any treatment records aside from those that are already of record.  Thus, the Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's claim.

In April 2010, VA provided the Veteran with a medical examination and obtained a medical opinion addressing whether his current hearing disability to include hearing loss had an onset during or was caused by active service.  The examination and opinion are adequate as the examination report shows that the examiner considered the relevant history of the Veteran's hearing loss. The examiner provided a sufficiently detailed description of the disability, and the examiner provided an analysis to support this opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate).  

As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A , or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim.  


I. Merits of the Claim 

The Veteran contends that although his hearing did not bother him until his later life he believes acoustic trauma he was exposed to in-service caused his hearing loss.
 
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  To establish entitlement to service-connected compensation benefits, a Veteran must show:  "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  

For 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 of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385.

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. See 38 C.F.R. § 3.303(d).  In Hensley, the Court held that "when audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service."  Hensley v. Brown, 5 Vet. App. 155, 160 (1993).  To make this determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).

Service connection for sensorineural hearing loss will refutably be presumed if it is manifest in-service to a compensable degree within one year following active service.  See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). Alternatively, under 38 C.F.R. § 3.303(b), a nexus to service will be established where there is continuity of symptomatology since service but only with respect to the chronic diseases enumerated in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). 

With regard to the medical evidence, a diagnosis or opinion by a health care professional is not conclusive, and is not entitled to absolute deference. Indeed, the Court has provided guidance for weighing medical evidence. The Court has held, for example, that in meeting our responsibility to weigh the credibility and probative value of the evidence, we may accept one medical opinion and reject others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999); Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995).

However, the Board is mindful that it cannot make its own independent medical determinations, and that it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans v. West, supra; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991). Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence, and not necessarily by its quantity or source.

In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The probative value of a physician's statement is dependent, in part, upon the extent to which it reflects 'clinical data or other rationale to support his opinion.  Bloom v. West, 12 Vet. App. 185, 187 (1999), and a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995).

The Board recognizes that a lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a 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 v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009. A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994); Charles v. Principi, 16 Vet. App 370, 374 (2002).

Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ('a legal concept determining whether testimony may be heard and considered') and credibility ('a factual determination going to the probative value of the evidence to be made after the evidence has been admitted').

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b).




Service Connection

The Board concedes at the onset that the Veteran currently has a diagnosed hearing disability, bilateral hearing loss for VA purposes.  See 38 C.F.R. § 3.385.  The Veteran was diagnosed with a bilateral hearing loss in a VA audiological diagnostic study in October 2006 and again in a VA audiology compensation and pension consult in April 2010.  Presence of a current disability (Holton element (1)) is thereby established.  

Turning to element (2) of the Holton analysis, the presence of a hearing loss disability in service is not shown.  His service treatment records are absent any evidence of complaints, treatment, or diagnosis of hearing loss.  He specifically denied having any ear trouble at discharge.  Further, as will be discussed in greater detail below, his discharge examination showed that his hearing was normal for VA purposes.  

That said, the Veteran contends that he was exposed to noise as a helicopter mechanic while in service. The Veteran is competent to report an occurrence of an in-service injury. He is also credible in this regard as the evidence shows the Veteran's occupation in service was that of single rotor helicopter mechanic. The Board concedes this is a military occupational specialty consistent with exposure to loud noises.  38 U.S.C.A. § 1154(a).  Thus, while an in-service injury is not necessarily established, the Board finds that the Veteran has presented sufficient evidence showing that he was exposed to noise in service, which could be equated to acoustic trauma.

Having determined that the Veteran had in-service noise exposure and has a current diagnosis of the claimed disability, the final question before the Board is whether the Veteran's current hearing loss disability is related to noise exposure in service.  A relationship or "nexus" to service may in this case be established on either a direct basis or presumptive.  See 38 C.F.R. §§ 3.303, 3.309.  Neither basis is availing in this case, for the reasons explained below.  

In support of his claim, the Veteran offer his lay statement that he believes he developed his hearing disability to include bilateral hearing loss from his service as helicopter mechanic. Initially, the Board notes that he has not demonstrated that he is an expert when it comes to diagnosis or etiology of audiologic conditions; he is therefore a layperson in this regard.  Nonetheless, the Board finds that it is within the realm of common medical knowledge that exposure to loud noises may damage one's hearing.  Therefore, the Veteran's lay opinion is of some value.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (explaining that lay evidence may be sufficient to establish the nexus element). 

In contrast to the Veteran's lay statements, at the April 2010 audiological consult, a VA audiologist explains that he reviewed the Veteran's medical history obtained from the claims file and interview with the Veteran.  An audiologist is a trained professional in the area of hearing and is competent to diagnosis hearing loss and establish an etiological association.  In this regard, the audiologist provided the following opinion:

Examiner concludes that veteran's hear loss-AU is not caused by, or a result of, military noise exposure.

SMR [service treatment records] contain an entrance exam dated August 1960 that records veteran passing a Whisper Test at 15 feet - AU. 

SMRS contain a separation audio dated June 1963 that reveals normal (excellent) hearing acuity -AU. (Due to the excellent hearing thresholds levels at separation, a STS [standard threshold shift] can be ruled-out as a possibility.)




As the audiologist noted, the Veteran's separation hearing examination in June 1963 reported normal hearing with pure tone thresholds, in decibels, as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
15
0
0
0
-5
LEFT
25
10
0
10
5

The Board notes that prior to November 1, 1967, service department audiometric test results were reported in standards set forth by the American Standards Association (ASA).  Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI).  In order to facilitate data comparison in this decision, for service department audiometric test results through October 31, 1967, the ASA standards have been converted to ISO-ANSI standards. 

In weighing the evidence, the Board finds the VA audiologist opinion highly probative. Ascertaining the etiology of hearing loss involves considering multiple factors and knowledge of how those factors interact with the mechanics of human hearing.  In this case, the facts are complex enough that the Veteran's intuition about the cause of his hearing loss is not sufficient to outweigh the opinion of the expert that carefully considered the specific facts of this case.  See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring) ("The question of whether a particular medical issue is beyond the competence of a layperson-including both claimants and Board members-must be determined on a case-by-case basis.")  

Also, weighing against the Veteran, is the 43 year time span between the Veteran first report of hearing difficulties and the Veteran's separation from service. These records shows that the Veteran first reported a hearing disability at the VA audiological diagnostic study in October 2006 while his records show that his separation from service was August 1963, and at the June 1963 hearing examination listed above, there is a finding of normal hearing.  Additionally, the Veteran denied any problem with his ears at his separation as noted on his medical history report of June 1963, and the Veteran corroborates this in his substantive appeal of March 2011 in which he states his hearing problem did not bother him until his "later years." 

The Board notes that although the October 2006 examination diagnosed the Veteran with a hearing disability to include hearing loss and tinnitus.  This examiner did not provide an opinion, to be weighed by the Board, on the etiology of the hearing disability to include bilateral hearing loss. 

Thus, the Board finds that the Veteran's lay opinion on the relationship between his in-service injury and current hearing loss is not entitled to significant weight as compared to the April 2010 VA audiologist's opinion. 

As the negative VA opinion on the question of nexus carries the most probative weight of all of the opinions for consideration, the preponderance of the evidence weighs against a finding that the Veteran's current hearing loss disability is related to the acoustic trauma sustained in service.  Service connection for bilateral hearing loss is not warranted on a direct basis. 

Additionally as stated above there is no evidence to support that the Veteran developed his hearing loss within a year after his service. Instead, the Veteran concedes that his hearing difficulties start in his "later years." Therefore the Veteran cannot prevail on a presumptive basis. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). Alternatively, under 38 C.F.R. § 3.303(b), a nexus to service will be established where there is continuity of symptomatology since service.  See Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). The Board finds that due to the lack of medical evidence of symptoms until many years following service and the Veteran's own statements, continuity of symptomology in now shown.

The Board considered the applicability of the benefit of the doubt doctrine.  However, that doctrine is not applicable in the instant appeal as the preponderance of the evidence is against the claim.  See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102 (2012). 


ORDER

Service connection for a hearing disability to include bilateral hearing loss is denied.


REMAND

Remand is required in this appeal to obtain an adequate examination. When VA undertakes an exam to determine benefits the examination needs to be adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007)

The Board notes that VA provided the Veteran with an April 2010 Audiology Compensation and Pension Consult of his claimed hearing disability to include tinnitus. 

The Board finds that the April 2010 Audiology Compensation and Pension Consult inaccurately stated that the Veteran did not claim that he had tinnitus. The Board notes that in the Veteran's initial claim for Veterans' benefits he contends that he has tinnitus, and in the Veteran's Audiological Diagnostic Study in October 2006 he states that he has tinnitus. As a result of the audiologist inaccurate representation, no medical opinion was made on the relationship of the Veteran's tinnitus and his active service.

Accordingly, the case is REMANDED for the following action:

1. The claims file must be sent to the audiologist who performed the April 2010 Audiology Compensation and Pension Consult or if that audiologist is unavailable another examiner with similar training.

If the examiner after review of the case file determines an additional examination is warranted only then must an examination be scheduled

A review of the claims file and any electronic records must be made. This review must be noted in the resulting opinion.

An opinion must made on whether it as likely as not (a 50 percent probability or greater) that the tinnitus had its onset in service or is otherwise etiologically related to the Veteran's active service, to include his conceded noise exposure.  

The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and a rationale provided for that conclusion.

2. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be adjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________

MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs