Citation Nr: 1325257 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 10-05 431 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from December 1970 to December 1973. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Milwaukee, Wisconsin that denied entitlement to service connection for left ear hearing loss and tinnitus. In his February 2010, substantive appeal the Veteran raised the issues of entitlement to service connection for a back disability and residuals of a hernia. These issues have not been adjudicated by the agency of original jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Current left ear hearing loss was not manifested during the Veteran's active duty service or for many years after service, nor is it otherwise related to a disease or injury in active service. 2. Current tinnitus was not manifested during the Veteran's active duty service or for many years after service, nor is it otherwise related to a disease or injury in active service. CONCLUSIONS OF LAW 1. Left ear hearing loss was not incurred in or aggravated by the Veteran's active duty service, nor may it be presumed to have been incurred in or aggravated by such service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. Tinnitus was not incurred in or aggravated by the Veteran's active duty service, nor may it be presumed to have been incurred in or aggravated by such service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Notify As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must 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). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in August 2008 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claims are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. The VA examiner provided definitive opinions that were based on an accurate history and were supported by a rationale. The examiner did not discuss the Veteran's reports, noted on the examination, of tinnitus symptoms since service. This is harmless error, because the Board has found that these reports are not credible. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection will be granted for disability resulting from an injury or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. If a chronic disease is shown to a compensable degree within one year of service, service connection will be presumed. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is shown in service and at any time thereafter, service connection will also be conceded. 38 C.F.R. § 3.303(b). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease; such diseases are listed in 38 C.F.R. § 3.309(a). However, in Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013), the United States Court of Appeals for the Federal Circuit held that § 3.303(b) applies only to listed chronic diseases. In Walker, the Federal Circuit specifically held that § 3.303(b) did not apply to a claim based on age related hearing loss. VA has; however, taken an informal position that sensorineural hearing loss is an organic disease of the nervous system, and as such, is a chronic disease. Hearing Loss, Under Secretary for Health (Oct. 4, 1995); see 38 U.S.C.A. § 1101(3) (West 2002). Similarly, tinnitus is not specifically listed as a chronic disease under 38 U.S.C.A. § 1101; 38 C.F.R. § 3.309(a); but may be considered an organic disease of the nervous system. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. See, 38 U.S.C.A. § 5107(b) (West 2002). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent with the facts shown in every case. 38 C.F.R. § 3.102 (2013). In adjudicating these claims, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). The Court of Appeals for Veterans Claims (Court) has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374-375 (2002). Under 38 C.F.R. § 3.159(a)(2) (2013), competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. Id. In Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), the Federal Circuit reiterated that under 38 U.S.C.A. § 1154(a) VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for benefits. Citing Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit stated that under § 1154(a) lay evidence can be competent and sufficient to establish a diagnosis of a condition when: "(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, 492 F.3d at 1377. Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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. Even though hearing loss under 38 C.F.R. § 3.385 is not shown in service, VA must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a brief of the VA Secretary). The service treatment records do not reflect any findings of hearing loss. The Veteran's November 1970 entrance examination reflects that left ear pure thresholds at 500 hertz, 1000 hertz, 2000 hertz, and 4000 hertz were measured at 15, 5, 5, and 5 decibels respectively. His December 1973 separation examination reflects that left ear pure thresholds at 500 hertz, 1000 hertz, 2000 hertz, and 4000 hertz were measured at 0, 5, 5, and 5 decibels respectively. Additionally, the Veteran signed a December 1973 Statement of Medical Condition in which he indicated, by checked box, that there had been no change in his medical condition between the time of the separation examination and the date he was discharged from service. Although the Veteran reported in his substantive appeal that he did not recall the separation examination, and implied that it may not have taken place, the examination report shows that he was found to have a hernia scar and other specific physical findings were reported; thus indicating that an actual examination was conducted. The Veteran's DD 214, shows that his primary occupational specialty was that of a wireman and that his last duty assignment was Howitzer Battery 1/11. Post service records reflect that the Veteran underwent an annual audiology examination at Mercy Medical Center beginning in 1985, for his employment. It was noted that he had been in the military and that he had "noisy hobbies." In August 1985, left ear pure thresholds at 500 hertz, 1000 hertz, 2000 hertz, and 4000 hertz were measured at 10, 15, 10, and 5 decibels respectively. His hearing remained roughly the same until August 1988, when it became slightly worse. Then it remained roughly the same until April 1992, when his hearing loss became slightly more severe. However, the Board notes that the Veteran did not have a hearing loss disability (as defined by 38 C.F.R. § 3.385) until September 1993 (20 years after service). There were no documented complaints of pain or ringing in the ears until June 2000, at which time the Veteran indicated that he had ear pain and severe ringing in one or both ears within the past 12 months. A September 2004 treatment report from the Affinity Medical Group reflects that the Veteran had been working as a welder for many years. He reported that he used ear protection both at home and at work. He also reported some military experience; but he indicated that when he began at Leach Corporation in 1985, his hearing was normal. He reported that he was a right handed shooter and that he participated in deer hunting and some small game. He reported that he suffered from "occasional tinnitus but nothing that bothers him." He also reported a positive family history of hearing loss including several aunts and uncles; but most often occurring with elderly age greater than 70 years old. Upon examination, the left ear had a sloping sensorineural hearing loss down to 70 decibels at the highest frequencies. Speech recognition score was 32 percent. The examiner did not render an opinion regarding the etiology of the hearing loss. In his August 2008 claim for VA benefits, the Veteran indicated that hearing loss and tinnitus had begun in "73." He reported no treatment. The Veteran reported in an August 2008 statement in Support of the Claim that he had "increasing hearing loss in my left ear and ringing in my ears for the last 5-6 years." He attributed his hearing loss and tinnitus to constant artillery noise during service. The Veteran underwent a VA examination in January 2009. The examiner reviewed the claims file in conjunction with the examination. The Veteran reported no noisy jobs prior to service. However, he reported four years of hunting with a firearm prior to service. He stated that when he was in the military, he was setting up a terminal box approximately 50 yards in front of a Howitzer when it misfired. He reported that he had ear pain and decreased hearing for one day; and that he has had tinnitus ever since. He also reported that he was a right handed shooter and that he trained on the M-16 once or twice per year without hearing protection. He stated that after being discharged from service, he worked a welder from 1974 to 2005. He also stated that he always used hearing protection. He had operated a chainsaw on occasion; and that he has six years of teaching hunter safety as well as annual deer and duck hunting with hearing protection. He reported that there was no relevant family history. Upon examination, left ear pure thresholds at 500 hertz, 1000 hertz, 2000 hertz, and 4000 hertz were measured at 30, 45, 60, and 65 decibels respectively. His speech recognition score was 72. The examiner opined that the Veteran's hearing loss and tinnitus were less likely than not related to service. Her rationale was that the Veteran did not file a claim for 35 years after service; there was no significant threshold shift in hearing from enlistment to separation; there was no documented tinnitus in service; and "severe ringing" was not noted until 2000 (for the right ear) and 2004 (for the left ear). She also noted that the Veteran reported that his hearing was normal when he began working for the Leach Corporation in 1985. In the Veteran's March 2009 notice of disagreement, he stated that he had had ringing in his ears since service. He further stated that he did not remember any separation examination; but remembered having ringing in his ears before he worked as a welder. In the Veteran's February 2010 substantive appeal (VA Form 9), he stated that the incident of excessive noise exposure was not documented in the service treatment records because it happened when he was out on maneuvers. He says he "soldiered up." The medic told him that his hearing should return; but if it did not, then he was to report to the infirmary. He stated that his hearing did return; but the ringing was still there. Analysis Hearing Loss The record clearly documents that the Veteran has a current hearing loss disability and tinnitus. His lay statements indicate that he had in-service noise exposure and his DD-214 shows his last duty assignment was with a Howitzer battery. The element of an in-service injury is also satisfied. The remaining question is whether the current disabilities are related to the in-service noise exposure. While the Veteran's sensorineural hearing loss may be considered a chronic disease, service treatment records do not show in-service hearing loss. Notwithstanding the notation on his claim for VA benefits, he has subsequently acknowledged that his hearing loss in service was for one day and then returned. The hearing tests for his employer also show that hearing loss was not present until many years after service. Hence, in-service chronic disease is not sufficiently identified to permit a concession of service connection under 38 C.F.R. § 3.303(b). Given the Veteran's most detailed reports and the employment hearing tests, the weight of the evidence is also against a finding that hearing loss was present to a compensable degree within one year of service. Accordingly, service connection would not be warranted on the basis of the one year presumption for organic disease of the central nervous system. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. There is no other competent evidence linking the current hearing loss to service. The Veteran obviously believes that there is such a relationship, but as a lay person, he lacks the necessary expertise and training to say that his hearing loss is related to in-service noise exposure, as opposed to post service or other causes. See 38 C.F.R. § 3.159(a). The VA examiner provided a well-reasoned opinion against a link between current hearing loss and service. Absent competent and credible evidence showing a link between current hearing loss and service, the weight of the evidence is against the claim, and it is denied. 38 U.S.C.A. § 5107(a). Tinnitus The first two elements of service connection are also shown with regard to the tinnitus claim. The Veteran has provided competent and credible evidence of current tinnitus, and that disability has been shown on the employment and VA examinations. As just noted, the Veterans exposure to in-service noise has also been demonstrated. In support of his claim for service connection the Veteran has asserted that he has had tinnitus ever since service. He is competent to describe symptoms of tinnitus. 38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness). Although the Veteran is competent to report the onset of tinnitus in service and a continuity of symptomatology, the Board must assess whether his reports are credible. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran's relatively recent reports of continuity are contradicted by his normal separation examination; the numerous annual audiology examinations conducted at Mercy Medical Center; and his August 2008 statement in Support of the Claim in which he indicated that he had ringing in his ears for the last 5-6 years. The contemporaneous record and contradictory statement render the reports of a continuity of symptomatology not credible. The remaining route to establish a nexus to service, would be under 38 C.F.R. § 3.303(d), which permits service connection for disabilities first diagnosed after service, where all the evidence indicates that the disability may be related to service. The VA examiner in January 2009, also concluded that the Veteran's tinnitus was less likely than not related to service. No other competent and credible evidence of record refutes that opinion. The Veteran himself believes that his current left ear hearing loss and tinnitus are related to service. However, while he is competent to describe symptoms of hearing loss and ringing ears, he has not demonstrated the expertise generally required to opine on causation. Indeed, in this case, the question of etiology extends beyond an immediately observable cause-and-effect relationship, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau)). In sum, his statements as to etiology in this case are not competent and therefore lack probative value. As the most probative evidence is against these claims. Reasonable doubt does not arise and the claims are denied. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for left ear hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs