Citation Nr: 1325379 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 10-46 549 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant, spouse ATTORNEY FOR THE BOARD Bordewyk, Alicia R. INTRODUCTION The Veteran served on active duty from July 1961 to March 1965 and from March 1965 to December 1968. He was discharged from his second period of service under other than honorable conditions. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which, in pertinent part, denied entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran and his wife provided testimony during a hearing before the undersigned at the RO in August 2012; a transcript is of record. In March and May 2013, the Board remanded the claim for additional development. As that development has been completed, the claim has been returned to the Board for further appellate action. The issues of entitlement to service connection for diabetes mellitus, peripheral neuropathy of the upper and lower extremities, hypertension, and erectile dysfunction have been raised by the record, but 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. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Bilateral hearing loss was first demonstrated long after service and is not etiologically related to service. 2. Chronic tinnitus was first demonstrated long after service and is not etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.385 (2012). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A (West 2002 & Supp. 2012), 5107; 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist a veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA 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. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a letter issued in September 2006, prior to the initial adjudication of the claim, the RO notified the Veteran of the evidence needed to substantiate his claim for service connection. The letter also satisfied the second and third elements of the duty to notify by informing the Veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. He was informed that VA provided ratings based on the rating schedule and was given examples of the evidence he could submit. The Veteran has substantiated his status as a veteran. He was notified of all elements of the Dingess notice, including the disability-rating and effective-date elements of the claims, by the September 2006 letter. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, VA treatment records, and private medical records. The Board has concluded that all VA treatment records have been obtained. The Veteran was provided a proper VA examination in December 2009 to assess the nature and etiology of his bilateral hearing loss and tinnitus. An addendum was provided in February 2010 and July 2013. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As discussed below, the Board finds that the December 2009 VA examination along with the February 2010 and July 2013 medical opinions obtained in this case are more than adequate, as they are predicated on a full reading of the service treatment records as well as the private and VA medical records contained in the Veteran's claims file. The examiner considered all of the pertinent evidence of record, to include the statements of the appellant, and provided a complete rationale for the opinions stated, relying on and citing to the records reviewed. In fact, the examiner specifically discussed other possible factors to which his current disorders were attributable. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the bilateral hearing loss and tinnitus issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). During the August 2012 Board hearing and prehearing conference, the undersigned explained the issues on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the issues on appeal. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The issues on appeal were previously before the Board in March 2013 and May 2013, when the case was remanded for additional development. In accordance with the remand instructions, all available VA treatment records have been obtained, including the December 2009 VA examination report, the February 2010 and July 2013 addendums were obtained, and a supplemental statement of the case was issued in July 2013. Since the record reflects compliance with the March 2013 and May 2013 remand instructions, the Board may proceed with adjudication of the claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Legal Criteria-Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of 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 of 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); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element for certain chronic disabilities is through a demonstration of continuity of symptomatology. See Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (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. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay 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 v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (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"). Service connection may also be granted for a disease first 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). Additionally, for veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestation of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Entitlement to service connection for impaired hearing is subject to the additional requirements of 38 C.F.R. § 3.385 (2012), which provides that service connection for impaired hearing shall be established when hearing acuity meets certain pure tone and speech recognition criteria. Hearing loss status will be considered a disability for the purposes of service connection when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater, the auditory thresholds for at least three of these frequencies 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. 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 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Bilateral Hearing Loss and Tinnitus The Veteran asserts that his bilateral hearing loss and tinnitus are related to noise exposure from tools, engines, firearms, and generators, ear wax and dirt build-up, and ear pressure experienced when embarking in a submarine during active service. His DD Form 214 reflects service in the United States Navy, including aboard the U.S.S. Blueback. In addition, at the August 2012 Board hearing, he reported that he was frequently around engine noise and experienced the ear build up, all without hearing protection. The Veteran is competent to report these in-service incidents or exposures, and his report is consistent with the circumstances of his service. 38 U.S.C.A. § 1154(a) (2012); see Jandreau, 492 F.3d at 1377; see also Buchanan, 451 F.3d at 1337. Therefore, the Board finds his reports of these in-service incidents or exposures to be credible. A December 2009 VA audiology examination included audiogram results which demonstrated hearing loss under 38 C.F.R. § 3.385, as auditory thresholds were found to be greater than 40 decibels at 2000, 3000, and 4000 Hertz bilaterally. In addition, tinnitus was noted by history. Therefore, two of the three elements necessary for service connection-current bilateral hearing loss and tinnitus disabilities and in-service injuries or incidents-are demonstrated. Unfortunately, however, the evidence of record does not support a finding that current hearing loss and tinnitus are etiologically related to the Veteran's in-service incidents or injuries. During the December 2009 VA examination, the Veteran reported post-service employment as a machine shop inspector for over four years, carpentry work and labor work on houses for 25 years, employment as a mechanic for a few years, and other construction work on and off as well in between his other jobs. He reported post-service noise exposure without hearing protection from factory/plant noise, construction work, machine shop noise, pipefitting, carpentry tools, jack hammers, chainsaws, farm equipment, and lawn equipment. In the February 2010 and July 2013 addendums, the VA examiner noted that both enlistment and separation examinations showed normal whisper voice testing but did not provide frequency-specific results. The examiner described the Veteran's reports of in-service noise exposure, the build-up in his ears and its impact on his hearing, as well as his difficulty equalizing his ears when he would embark in the submarine. Regarding the ear build-up, the examiner explained that a change in hearing threshold and symptoms of tinnitus would be expected to the extent that noise would have to be louder to make it beyond the impactions. However, the higher thresholds and ringing in the ears would be temporary until the blockage was cleared and were not consistent with a noise-induced condition. Regarding the difficulty equalizing his ears when he would embark in the submarine, the examiner stated that that would be a middle ear issue and not consistent with noise-induced hearing loss or tinnitus. Nevertheless, if the middle ear problems were ongoing or permanent, there would have been a conductive component present in the current thresholds and the December 2009 audiogram results did not demonstrate such a conductive component. Regarding the reported in-service acoustic trauma, the examiner noted that while he served 7 years during service, the Veteran also reported 37 years of significant noise exposure without hearing protection after service. Moreover, none of the Veteran's reported in-service symptoms were documented. The examiner concluded that, with lack of in-service documentation of these symptoms, the fact that his reported symptoms were consistent with temporary ear blockage or ear pressure, and with his extensive history of significant, post-service noise exposure without hearing protection for over 37 years, it was less likely as not that the Veteran's current bilateral hearing loss and tinnitus were due to military noise exposure. As noted above, the Board finds that VA examination and opinions provided in this case to be more than adequate as they were predicated upon a complete reading of the claims file and history as well as the Veteran's statements, and a thorough rationale was provided. The only evidence of record supporting the finding of a nexus between current hearing loss and tinnitus and service are the statements of the Veteran and his spouse, which were submitted in connection with his claim for benefits. However, the record reflects a significant gap of over 40 years between discharge and his current claim, which is the first complaint of hearing loss or tinnitus of record. Moreover, the Veteran has reported significant post-service acoustic trauma for 37 years. Based on the foregoing, the Board finds the Veteran's statements asserting a nexus between current hearing loss and tinnitus and in-service noise exposure to not be credible. In addition, the Veteran lacks the necessary medical expertise to say that a hearing loss or tinnitus disability identified long after service is the result of in-service trauma as opposed to a post-service event or process, including his significant history of post-service noise exposure. While his wife has reported that he has had difficulty with his hearing ever since she met him in 1971, that would have been about six years after his discharge from his first period of service and after he had experienced post-service noise exposure. In addition, to the extent that these statements are based on the Veteran's reports, rather than her own experience or knowledge, they are thus afforded the same weight. Given the lack of competent and credible evidence linking current bilateral hearing loss and tinnitus to service, the evidence is against a finding of a nexus between them. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim, and it is, therefore, denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C.A. § 5107(b). However, as there is not an approximate balance of evidence, that rule is not applicable in this case. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs