Citation Nr: 1325511 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 07-11 751 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas 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 WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to July 1968. These matters initially came before the Board of Veterans' Appeals (Board) from an August 2005 rating decision of the Los Angeles, California, Regional Office (RO) of the Department of Veterans Affairs (VA) that, in relevant part, denied service connection for bilateral hearing loss and tinnitus. The claims have since been transferred to the Wichita, Kansas, RO. In November 2006, the Veteran testified at a hearing before a decision review officer at the Los Angeles RO. In November 2009, he testified at a videoconference hearing before the undersigned Veterans Law Judge sitting in Washington, D.C. Transcripts of the hearings have been associated with the Veteran's claims folder. In a January 2012 decision, the Board the Veteran's service connection claims. The Veteran subsequently appealed the decision to the Unites States Court of Appeals for Veterans Claims (Court). Thereafter, while the case was pending before the Court, VA's Office of General Counsel and the appellant's attorney filed a Joint Motion for partial Remand (Joint Motion), requesting that the Court vacate the decision. By an Order dated August 2012, the Court granted the parties' Joint Motion, vacated that portion of the decision that denied the claims and remanded the claims to the Board for compliance with the directives specified by the Court. In November 2012, the Board remanded the case for further evidentiary development. The case has now been returned to the Board for appellate review. FINDINGS OF FACT 1. The Veteran's pre-enlistment report and examination revealed complaints of tinnitus due to hunting; hearing was within normal limits. 2. Hearing loss was demonstrated by audiogram in service and current medical evidence shows that the Veteran has bilateral hearing loss by VA standards. 3. There is clear and convincing evidence that the Veteran's pre-existing tinnitus was not aggravated during his period of active duty beyond to the natural progress of the disease. CONCLUSIONS OF LAW 1. Bilateral sensorineural hearing loss was incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2012). 2. Pre-existing tinnitus was not aggravated by active military service. 38 U.S.C.A. §§ 1110, 1111, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided subsequently, and because the appellant had a meaningful opportunity to participate effectively in the processing of the claims with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was provided appropriate notice in letters dated in May 2005, October 2010, and January 2011, both prior to and subsequent to the rating decision on appeal. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls upon the party attacking the agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claims. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent July 2013 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence since the Board's August 2012 remand. VA has obtained another examination with respect to the claims on appeal and the examination and opinion is adequate for rating purposes. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008); Barr v. Nicholson, 21 Vet. App. 303 (2007) (when VA undertakes to provide an examination, it must ensure that the examination or opinion is adequate). Thus, the Board finds that there has been substantial compliance with the August 2012 remand and VA has satisfied the duty to assist. Stegall v. West, 11 Vet. App. 268 (1998). Consequently, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in active service or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Evidence of continuity of symptomatology of a disability identified in 38 C.F.R. § 3.309(a) from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2012); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Certain chronic disabilities, such as sensorineural hearing loss (as an organic disease of the nervous system), if manifest to a degree of 10 percent within one year after separation from active duty, may be presumed to have been incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). When determining whether a disability or disease was incurred in service, or preexisted service, a veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment into service, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304 (2012). A preexisting injury or disease will be considered to have been aggravated by active military service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Aggravation may not be conceded, however, where the disability underwent no increase in severity during service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012). Temporary flare-ups of a pre-existing disorder during service, without evidence of a worsening of the underlying condition, do not constitute aggravation. Hunt v. Derwinski, 1 Vet. App. 292, 296-7 (1991). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz, in ISO units, is 40 decibels or greater; or when 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 (2012). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415 (1998); Cuevas v. Principi, 3 Vet. App. 542 (1992). 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 v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In adjudicating a claim, the Board must assess the competence and credibility of the claimant. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362 (2001). The competency of evidence must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997); Cartright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect credibility of testimony, it does not affect competency to testify). If all the evidence is in relative equipoise, reasonable doubt shall be resolved in the claimant's favor, and the claim granted. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). However, if the preponderance of the evidence is against the claim, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The record shows that the Veteran was assigned to Saigon in 1968 when military quarters throughout Saigon received enemy fire during the TET offensive. He contends that exposure to gun fire and rockets during service in Saigon caused hearing loss and aggravated his preexisting tinnitus. Service treatment records show that the Veteran complained of ringing in his ears on pre-induction medical history report in August 1966; physical examination, which included an audiogram, was within normal limits. He complained in September 1967 of ringing in his ears and loss of hearing. Two trace recordings of audiograms at that time are attached, however, the results were not recorded on the examination reports. The Board's lay review of the recording shows that thresholds of greater than 20 were recorded in the right ear at 500, 4000 and 6000 hertz; and in the left ear at 4000 and 6000 hertz. The Veteran did not note an ear or hearing problem on his July 1968 separation medical history report, and his hearing was normal on physical evaluation in July 1968, but it did not include a hearing evaluation or audiogram. The Veteran was treated in November 2001at a VA audiology clinic when he complained of hearing loss and tinnitus and noise exposure in service. He was found to have hearing within normal limits except for a mild to severe hearing loss from 4000 to 8000 Hz. An audiometric examination was not performed and the complaint of tinnitus was not addressed. The Veteran testified in support of his claim at a RO hearing in November 2006. He testified at his video hearing in November 2009 that he was exposed to acoustic trauma in service from rocket attacks and combat during TET. The Veteran reported a history of service noise exposure from explosions and weapons when examined by VA in January 2011. He denied civilian occupational noise exposure but noted recreational noise exposure while hunting as a child. He complained of tinnitus that began while hunting as a child. An audiogram showed decibel thresholds within normal limits in each ear below 4000 hertz, with threshold of 80 in the right ear and 70 in the left ear at 4000 hertz. After review of the claims file and examination of the Veteran, the examiner concluded that it was less likely that the Veteran's current hearing loss disability was the result of military noise exposure and that it was less likely that his preexisting tinnitus was aggravated by service noise exposure. The rationale for the opinion was that there is no evidence in service of an event or injury that caused a hearing problem and that he reported to be a stenographer in service and was not exposed to significant acoustic trauma such as to aggravate his preexisting tinnitus. Upon VA examination in November 2012, the examiner again concluded that it was less likely that the Veteran's hearing loss was the result of military noise exposure and that it was less likely that his preexisting tinnitus was aggravated by service noise exposure. She acknowledged the Veteran's statements with regard to exposure to acoustic trauma in service as well as the Board's concession of that fact but again pointed to the fact that there was no documentation with regard to an specific in-service event or injury. The Veteran's hearing was within normal limits at induction, and he was seen for complaints of hearing difficulty one year later, in 1967. Although a hearing defect was not specifically reported, the Board's lay review of the trace recordings of the audiograms performed at that time clearly show that decibel readings in excess of 20 were recorded - which the Court has concluded is a demonstration of hearing loss. See Hensley, supra. . Additionally, although he was not diagnosed with hearing loss at the time of his separation examination, an audiogram was not performed. The Veteran has presented credible lay evidence that he has experienced difficulty with his hearing since discharge from service, and the current medical evidence demonstrates bilateral hearing loss by VA standards. Consequently, by extending the benefit of the doubt to the Veteran, the Board concludes the Veteran's current hearing loss disability was incurred during his active military service. Hence, service connection for bilateral hearing loss is warranted. See 38 U.S.C.A. § 5017; 38 C.F.R. §§ 3.102, 3.303(d), 3.385; Hensley, supra. There is clear and unmistakable evidence that the Veteran's tinnitus pre-existed his military service. He noted upon induction examination that he experienced ringing in his ears after going hunting with his father. Additionally, the Board also finds that there is clear and unmistakable evidence that the disability was not aggravated during his active military service. As noted above, aggravation may not be conceded where a disability underwent no increase in severity during service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012). Additionally, temporary flare-ups of a pre-existing disorder during service, without evidence of a worsening of the underlying condition, do not constitute aggravation. Hunt v. Derwinski, 1 Vet. App. 292, 296-7 (1991). The Veteran was seen on one occasion for complaints of ringing in his ears during his period of active duty. There is no indication that there was a permanent worsening of the ringing at the time of the clinical evaluation in 1967, and upon separation examination in 1986, the Veteran did not report any ringing or tinnitus complaints. Consequently, the Board finds that one-time complaint was a temporary flare-up and does not constitute an aggravation of the preexisting condition. The Board has considered the doctrine of giving the benefit of the doubt to the veteran, under 38 U.S.C.A. § 5107 and 38 C.F.R. § 3.102; however, the evidence pertaining to the claim for service connection for tinnitus is not of such approximate balance as to warrant its application. Consequently, for the reasons detailed above, the Board finds that the preponderance of the evidence is against the claim, and service connection for tinnitus must therefore be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is denied. ____________________________________________ FRANK J. FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs