Citation Nr: 1326267 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 11-12 610 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD N. Sonia, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1967 to June 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board has not only viewed the Veteran's physical claims file, but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran was exposed to loud noise in service, but symptoms of bilateral hearing loss and tinnitus were not chronic in service, did not manifest to a compensable degree within one year of separation, and have not been continuous since service separation. 2. The Veteran's bilateral hearing loss and tinnitus are not related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 2107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). As discussed below, VA has fulfilled its duties under the VCAA. When VA receives a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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 must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For service-connection claims, 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 the claim: (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 the present appeal, the VCAA duty to notify was satisfied by an April 2010 letter that informed the Veteran of what evidence was required to substantiate the claim, and of his and VA's respective duties for obtaining evidence. The letter also included the type of evidence necessary to establish a disability rating and effective date. Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The duty to assist also includes 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 Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In connection with the current appeal, the evidence of record includes the Veteran's service treatment records, statements in support of the claim by the Veteran and his representative, VA treatment records, and a VA examination from May 2010. The examination was adequate because the examiner reviewed the Veteran's relevant medical history, recorded pertinent examination findings, and provided a sufficient analysis to support his conclusions. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). The Veteran has not identified, and the record does not otherwise indicate, any existing, pertinent evidence that has not been obtained. The record also presents no basis for further development to create any additional evidence to be considered in connection with the matters currently under consideration. Hence, no further notice or assistance to the Veteran is required for fair adjudication of the Veteran's 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). 2. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a)(2012). "To establish a right to compensation for a present disability, 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)). A hearing loss disability for VA compensation purposes is established when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC (controlled speech discrimination) test are less than 94 percent. 38 C.F.R § 3.385 (2012); see also Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (holding that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss). Service connection can also be established through application of statutory presumptions. Diseases subject to presumptive service connection are shown at 38 C.F.R. § 3.309. Other organic diseases of the nervous system is listed as a "chronic disease" and includes sensorineural hearing loss. See M21-1MR, Part III.iv.4.B.12.a; see also Cromley v. Brown, 7 Vet. App. 376, 378 (1995) . Under 38 C.F.R. § 3.303(b), if a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. When the fact of chronicity in service (or during the presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative route to service connection only for the specific chronic diseases listed in of 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, where a veteran who served continuously for 90 days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as other organic diseases of the nervous system, to a degree of 10 percent or more within 1 year from the date of termination of 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. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1110, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (2012). In the present appeal, the Veteran contends that service connection is warranted for bilateral hearing loss and tinnitus due to noise exposure in service. Specifically, the Veteran asserts that he currently has bilateral hearing loss and tinnitus that was a result of in-service noise exposure from weapons fire and his work as an aircraft mechanic. The evidentiary record shows a current diagnosis of bilateral hearing loss for VA purposes. The May 2010 VA examination showed auditory thresholds in the left and right ears were 45 decibels and 55 decibels, respectively, at the 4000 Hertz range. See 38 C.F.R § 3.385 (2012). The Veteran also reported bilateral tinnitus. Next, the Board finds that the evidence demonstrates that the Veteran was exposed to loud noise in service. The Veteran's DD-214 lists his Military Occupational Specialty as aircraft mechanic. In his May 2011 VA Form 9, the Veteran referred to noise exposure "on the flight line and as a crew member flying." Given the Veteran's competency to report noise exposure and that the reported noise exposure is consistent with his military duties, the Board finds that the Veteran had exposure to loud noise while in service. In spite of the Veteran's in-service noise exposure, the Board finds that the evidence shows that symptoms of bilateral hearing loss and tinnitus were not chronic in service. As an initial matter, the Board notes that tinnitus, unlike bilateral hearing loss, is not a "chronic disease" under 38 C.F.R. § 3.309. However, the Veteran specifically asserted that his tinnitus began and has continued to exist since service. For this reason, the Board will address both the bilateral hearing loss and tinnitus together with respect to the continuous nature of the conditions since the Veteran's discharge from service. In the June 1967 report of medical history, the Veteran denied hearing loss and ear, nose or throat trouble. Reports of medical examinations from June 1967, October 1968, and May 1971 found the Veteran's ears were normal and did not include any diagnosis or notation of either bilateral hearing loss or tinnitus. The only entry in the service treatment records related to the ear was from August 1968, in which the Veteran reported "pain in external auditory canal" (emphasis added). There was no follow up treatment regarding such external pain, and, as described, there was no documented complaints of bilateral hearing loss or tinnitus in the remaining service treatment records, including separation examinations, which will be discussed in more detail below. Because the fact of chronicity in service is not adequately supported, the Board will now consider whether the evidence of record demonstrates that symptoms of bilateral hearing loss and tinnitus have been continuous since service separation. The Board finds that the Veteran's more recently-reported history of continued symptoms of bilateral hearing loss and tinnitus since active service is inconsistent with the other lay and medical evidence of record. Indeed, while the Veteran now asserts that his symptoms began in service, in the more contemperanous medical history he gave at the service separation examination, he did not identify symptoms of bilateral hearing loss or tinnitus. Specifically, the service separation examination report reflects that the Veteran was examined and his ears were found to be clinically normal with no report of bilateral hearing loss or tinnitus. Thus, the Veteran's in-service history of symptoms at the time of service separation is more contemporaneous to service, so is of more probative value than the more recent assertions made many years after service separation in the context of seeking monetary benefits. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); see also Curry v. Brown, 7 Vet. App. 59, 68 (1994). The Board acknowledges that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage v. Gober, 10 Vet. App. 488, 496 (1997). However, here, the Veteran filed a disability compensation claim for service connection for a skin disorder in July 1971, shortly after service, but did not claim service connection for bilateral hearing loss or tinnitus or identify symptomatology of either condition. This suggests to the Board that there was no pertinent bilateral hearing loss or tinnitus symptomatology at that time as it is reasonable to expect that the Veteran presented all issues for which he was experiencing symptoms that he believed were related to service in the July 1971 claim. In addition, the Veteran filed a disability compensation claim for service connection for bilateral hearing loss in January 2008 and reported that his disability began in 2005. The Veteran did not file for or mention any symptoms of tinnitus in the January 2008 claim. Subsequently, in February 2010, the Veteran filed for service connection for both bilateral hearing loss and tinnitus and indicated that both conditions began in 1967, while he was in service. Therefore, the Veteran's statements regarding the onset and continuity of his symptoms are internally inconsistent. The Veteran has reported two different onset dates for his bilateral hearing loss (1967 and 2005). In terms of symptoms of tinnitus, the Veteran has provided an onset date of 1967, yet, when filing for bilateral hearing loss in January 2008, he did not mention any symptoms of tinnitus. Moreover, in the July 1971 claim, the Veteran neglected to mention both bilateral hearing loss and tinnitus symptoms. Such inconsistencies in the record weigh against the Veteran's credibility as to the assertion of continuity of symptomatology since service. See Madden v. Gober, 125 F.3d 1477, 1481 (1997); Caluza v. Brown, 7 Vet. App. 498, 512 (1995). In short, the Board finds that the Veteran's assertion that he has experienced bilateral hearing loss and tinnitus since service is outweighed by other evidence of record. Such evidence includes the normal clinical evaluation of his ears at the May 1971 separation examination; the absence of any post-service history, complaints, diagnosis or treatment of bilateral hearing loss or tinnitus for over thirty years after service; and the Veteran's claim for service connection in July 1971 for another disability with no mention of bilateral hearing loss or tinnitus symptoms. Moreover, there are internally inconsistent statements in the record regarding the onset date of bilateral hearing loss and tinnitus. The Board also finds that the preponderance of the evidence shows that bilateral hearing loss did not manifest to a compensable degree within one year of service separation. Post-service medical records do not include a diagnosis of bilateral hearing loss until a January 2004 audiology consult at the Kansas City VA Medical Center, many years after service. Thus, service connection for bilateral hearing loss, on a presumptive basis as a chronic disease, is not available in this case. Next, the preponderance of the evidence is against a finding that the Veteran's currently diagnosed bilateral hearing loss and tinnitus are related to in-service noise exposure. The May 2010 examination report indicates that the Veteran reported military noise exposure due to his flying status, his work on aircraft repairs, and weapons fire. The report also notes the Veteran's post-military noise exposure from his work as a truck driver. The examiner concluded that the Veteran's bilateral hearing loss and tinnitus were less likely as not related to his exposure to noise in service. The examiner took into consideration the Veteran's exposure to noise while in service and since discharge, specifically noting that while his post-service noise exposure was not "excessive," it was the "basis for the [hearing] impairment discovered on his past 2 examinations." Regarding the tinnitus, the examiner explained that the "absence of measurable hearing loss at 4 and 6k Hz at the time of discharge indicates his cochlear was essentially unimpaired. The absence of the early evidence of high frequency sensorineural hearing loss lowers an opinion of cause to less likely than not that his tinnitus was related to military associated acoustic trauma." Therefore, the May 2010 audiological opinion weighs against the Veteran's claim. The VA examiner based his conclusion on a review of the claims file as well as a review of the Veteran's documented and reported history, including his statements regarding in-service and post-service noise exposure. The examiner provided a conclusion with a supportive rationale, and the May 2010 VA medical opinion is therefore probative. See Nieves -Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board acknowledges the Veteran's statements regarding the etiology of his conditions. In his May 2011 VA Form 9 the Veteran stated, "The ringing in my ears and deterioration of my hearing has progressed for many years. I honestly feel my exposure on the flight line and as a crew member flying caused this situation." The Board notes that the Veteran is competent to describe symptoms he experienced, whether in service or during the years since discharge, based on his personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, identifying a nexus to a persistent disability involves a complex medical issue that the Veteran is not competent to address. See Davidson v. Nicholson, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In the July 2010 Notice of Disagreement, the Veteran's representative referred to a 2005 report by the National Academies of Science Institute of Medicine (IOM) entitled "Noise and Military Service." The representative argued that because the IOM report advocates audiometric testing at 6000 Hertz and above in order to accurately identify the characteristic noise notch for noise-induced hearing loss, that the VA examination from May 2010 was inadequate and therefore the VA examiner had "no basis" to provide a negative nexus opinion concerning the Veteran's bilateral hearing loss. However, the IOM report specifically states that the "hallmark of noise-induced hearing loss is a characteristic noise notch in the audiogram that typically occurs between 3000 and 6000 Hz." Therefore, the VA audiogram, which tests at the 500 to 4000 Hz levels, includes, at least partially, the puretone thresholds in which the characteristic "notch" can appear. Furthermore, the United States Court of Appeals for Veterans Claims (the Court) has recognized that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998). In this case, however, the IOM report was not accompanied by the opinion of a medical professional. Moreover, the information contained in the IOM report is general in nature and does not specifically discuss the Veteran's case. Therefore, although the Board has no reason to doubt the veracity of the IOM report, the information does not establish that the Veteran's claimed conditions are etiologically related to in-service noise exposure. Thus, the most probative evidence of record on the element of whether there is a nexus between an in-service incurrence and the Veteran's current bilateral hearing loss and tinnitus is the May 2010 examination report, which does not find such a nexus. For the reasons and bases discussed above, the Board finds that a preponderance of the evidence is against the claim for service connection for bilateral hearing loss and tinnitus, and this claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER 1. Service connection for bilateral hearing loss is denied. 2. Service connection for tinnitus is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs